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20 December 1995
Doc. 7439
1403-15/12/95-1-E
REPORT1
on the procedure for examining candidatures
for the election of judges to
the European Court of Human Rights
(Rapporteur: Lord KIRKHILL
United Kingdom, Socialist Group)
Summary
With the entry into force of Protocol No. 11 to the European Convention on Human Rights, expected in the course of 1997, a single and full-time Court of professional judges will be set up. However, the election procedure of judges by the Parliamentary Assembly will not be substantially modified.
Nevertheless, the Assembly wishes to take advantage of the short time left to improve its own procedure for examining the candidatures and for the selection of candidates, for more efficiency and professionalism. Future candidates will be invited to fill in a model curriculum vitae, so that the Assembly will have comparable information at its disposal, and they will be interviewed by a sub-committee of the Assembly, for their qualities to be assessed.
I. Draft resolution
1. Protocol No. 11 to the European Convention on Human Rights is expected to be ratified by all Contracting Parties to the Convention in the course of 1996. If ratified in 1996 it will enter into force a year later, probably in the course of 1997.
2. The protocol will introduce a single European Court of Human Rights on a permanent basis in Strasbourg to replace the existing Commission and Court. It will preserve, in essence, the proceedings and procedural guarantees under the Convention. The judges (one in respect of each Contracting Party — as against one for each member state at present) will be elected for a period of six years (nine years at present) by the Assembly from three candidates proposed by the Contracting Party concerned.
3. Now that a new Court is to be set up on a fully professional basis, with judges residing permanently in Strasbourg, the Assembly wishes to improve its own procedure for the selection of candidates from the three proposed by the Contracting Party concerned.
4. Undoubtedly, it would be useful if the information to be provided by the candidates were presented systematically and on broadly similar lines to facilitate comparison amongst the candidates. For this reason a model curriculum vitae should be established and sent to each candidate who will complete the document as part of his or her submission of candidature. The model curriculum vitae which is attached forms an integral part of this resolution.
5. The Assembly shall undertake to call upon candidates to participate in a personal interview, to be organised in Strasbourg by the Sub-Committee on Human Rights or by an ad hoc sub-committee of the Committee on Legal Affairs and Human Rights.
6. Finally, the Assembly calls upon all member states of the Council of Europe and upon all candidates to the new Court of Human Rights to co-operate with this new procedure which should considerably improve the system of the election of the judges by the Assembly.
APPENDIX
Model curriculum vitae for candidates seeking election
to the European Court of Human Rights
In order to ensure that the members of the Parliamentary Assembly of the Council of Europe have comparable information at their disposal when electing judges to the European Court of Human Rights, candidates are invited to submit curricula vita on the following lines:
I. Personal details
Name, forename:
Sex:
Date and place of birth:
Nationality/ies:
II. Education and academic and other qualifications
III. Professional activities
Details of professional activities:
a. career:
b. duration and dates of the different stages and positions held:
c. present duties with dates of commencement:
IV. Activities and experience in the field of human rights
V. Political activities
— Posts held in a political party
— Duration
— Me mbership of parliamentVI
VI. Other activities:
— Field
— Duration
— Functions
VII. Publications and other works
(Indicate the total number of books and articles published but select only the most important ones (maximum 12))
VIII. Languages
(Indicate degree of fluency: speaking, reading, writing)
a. Mother tongue
b. Official languages
English:
French:
c. Other languages:
IX. Other relevant information
II. Draft recommendation
1. The Assembly refers to its Resolution ... (1996) in which it decided to improve its procedures for the examination of candidates seeking election to the European Court of Human Rights.
2. It recommends that the Committee of Ministers give its full support to the proposals made in this resolution and, in particular, make the necessary budgetary appropriations for the travel and subsistence expenses of candidates invited to an interview in Strasbourg.
III. Explanatory memorandum
by Lord KIRKHILL
A. Introduction
1. The election of the judges to the European Court of Human Rights is a very important right granted to our Assembly. In fact, Article 39 of the European Convention on Human Rights provides that the judges shall be elected by the Assembly by a majority of the votes cast from a list of persons nominated by the member states of the Council of Europe. Each member state shall nominate three candidates of whom two at least shall be its nationals. Furthermore, the same article, in its Section 3, provides that "the candidates shall be of a high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence".
2. When Protocol No. 11 to the Convention — which will introduce a single-court system — enters into force the system of election of the judges will not change considerably. However, under the new protocol, the judges shall be elected for a period of six years and exceptionally no longer than for nine years. They may be re-elected but, whereas there is no age-limit in the Convention as it stands now, Article 23, Section 6, of its new version will provide that the terms of office of judges shall expire when they reach the age of 70. Under the old system there is a judge on behalf of each member state of the Council of Europe, whether it adheres to the Convention or not. Under the new system there will be a judge on behalf of each Contracting Party. In practice the difference is not very great because practically all member states have ratified the Convention or are likely to do so soon, and because it is no longer conceivable that a state will adhere to the Council of Europe Statute without also becoming a Party to the European Convention on Human Rights. Indeed, both the Assembly and the Committee of Ministers make signature, and ratification within a reasonable period, a condition of membership.
3. To enter into force Protocol No. 11 — which was opened for signature and ratification in May 1994 — must be ratified by all Contracting Parties to the Convention. It is therefore important that new member states, when they ratify the Convention, ratify Protocol No. 11 at the same time. It is hoped that all Contracting Parties will have ratified by 1 July 1996 and — if this is the case — the protocol would enter into force and the single court start to operate a year later, that is on 1 July 1997. This is not the subject of the present report but if there appears to be a delay in the ratification procedures in some of our member states the Committee on Legal Affairs and Human Rights and the Assembly may have to intervene to speed up developments.
4. The election of new judges may take place and any further necessary steps may be taken to establish the new court, in accordance with the provisions of Protocol No. 11, from the date on which all Parties to the Convention have expressed their consent to be bound by the protocol (Article 4 of Protocol No. 11). This means that, in fact, little time is left to prepare for any new procedure for examining the candidatures of persons seeking election to the European Court of Human Rights.
5. Given the fact that the entry into force of the new single court may be imminent the Committee on Legal Affairs and Human Rights decided that it would not be useful to work out new procedures for examining candidatures to the existing Court of Human Rights. In fact, any new judges to be elected to the old Court will probably sit for a short period of time. The last partial renewal of the Court took place in January 1995 and any elections in the Assembly to make appointment to the old Court will essentially concern the replacement of judges who have resigned or died, or are candidates from new member states. It is unlikely that these elections will be very numerous and introducing a new system for the old Court for such a short period of time would, in my view, seem arbitrary. The committee, therefore, has decided in favour of a system which would enter into force with Protocol No. 11 and apply to all the candidates for the new Court. The main proposal which this report is making is that, in future, all candidates should be interviewed by the Sub-Committee on Human Rights or by a special ad hoc sub-committee.
B. The Assembly must choose one judge from three candidates
6. In accordance with (new) Article 22 the judges shall be elected by the Assembly with respect to each Contracting Party by a majority of votes cast from a list of three candidates nominated by the Contracting Party. This provision is identical to the existing provision, with one important difference. Under the existing system any member State of the Council of Europe, whether a Contracting Party to the Convention or not, is entitled to propose candidates.
7. Present practice is that the candidatures are identified by the various governments through the normal diplomatic channels. The governments are represented through their Minister of Foreign Affairs or diplomatic plenipotentiary. The words "High Contracting Party" in Article 22 leave, however, an opening for the theory that the selection of the three candidates to be proposed to the Assembly may not be a matter which is entirely reserved to governments. In a number of member states the national delegations to the Assembly are consulted on the choice of the candidates and there have been cases in which the opposition vigorously protested against the fact that they had not been consulted. In spring 1995 the Legal Committee of the Swiss National Council proposed that the candidates for the Court on behalf of Switzerland be proposed by parliament rather than by the government.
8. The manner in which the three candidates are selected at national level is certainly of great importance. It might well be the subject of a further report by the Committee on Legal Affairs and Human Rights to the Assembly but I consider it more practical not to deal with such selection in the present study which will, therefore, only concentrate on the means by which the Assembly, giving consideration to the three candidates proposed, should improve its selection procedure.
C. Should the Assembly impose additional requirements on the candidates?
9. It may be recalled that in 1977 the Assembly adopted a resolution in which it requested its members not to vote for candidates who had not given a formal undertaking to retire from the office of judge during the year in which they reach the age of 75.2 It also recommended that the Committee of Ministers put forward candidates who had not yet reached the age of 70,3 but these texts are no longer applied.
10. When Protocol No. 11 enters into force the criteria for office will be listed in Article 21 of the Convention, reading as follows:
"1. The judges shall be of high moral character and must possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence.
2. The judges shall sit on the Court in their individual capacity.
3. During their term of office the judges shall not engage in any activity which is incompatible with their independence, impartiality or with the demands of a full-time office; all questions arising from the application of this paragraph shall be decided by the Court."
11. Some members of the committee expressed the view that the persons nominated should preferably be or have been judges who sit or have sat under their own national jurisdiction. There is much to be said for this given the fact that they would have the necessary national judicial experience which is also required in a European court and also a presumption that his/her credentials would already have been assessed when he/she was appointed as a domestic judge. However, as I said before, this is not the subject of this report and the Assembly, under the Convention, will have to limit itself to the candidates proposed to it.
D. A model curriculum vitae
12. Normally, when the Committee of Ministers transmits the candidates for the Court, a biography of the candidates is attached. This biography or curriculum vitae ("CV") may provide most useful and important information on candidates who may be and usually are totally unknown to the overwhelming majority of members of the Assembly. Of course, those who have had a term of office in the Court of Human Rights and stand for re-election may be somewhat better known, but even this is not certain. A biography is therefore extremely important and useful, but — at present — it contains mainly what the candidate himself wants to put in it or it contains information which the member state concerned wants to transmit. It would be useful if these biographies were to follow the same pattern and if there were a model CV which all candidates should be invited to follow. This report prefers such a model CV rather than to arrange for a questionnaire to be completed which, given that these are candidates seeking high office under Article 21 of Protocol No. 11, would seem a more suitable course to follow. Indisputably, a model CV would make it easier to compare the candidates among themselves and it is for this reason that there is a model CV appended to the draft resolution. This model CV was elaborated with great care and the committee even sought expert advice from Mrs Yvonne Sarch (Sarch Search International, London) whose opinion was of considerable value to your rapporteur.
E. Should there be a hearing of the candidates?
13. It is clear that if one really wants to assess the qualities of the candidates this cannot be done on their CV alone. This would already be very difficult at national level but becomes impossible when one has to judge candidates from completely different cultural and other backgrounds. Even if one uses exactly the same terminology, the meaning of the words may be completely different and errors of translation and appreciation are likely to arise. The committee has therefore come to the conclusion that it would not be sufficient merely to examine the CVs of all the candidates but that, in addition, they should be invited to a hearing. This hearing could be held by the Sub-Committee on Human Rights or by a special ad hoc sub-committee of the Committee on Legal Affairs and Human Rights.
14. If — as may be expected — the new Court has some forty judges this would mean that the sub-committee would have to hear 3 x 40 = 120 candidates. Even if each candidate were to be given only fifteen minutes, to hear all would take some twenty-five hours of meeting time. However, I am confident that my colleagues will be prepared to spend three or four days away from home for these hearings, especially since — and this is a point I really must emphasise — in quantitative terms, this would be a one-time exercise, owing to the provisions for the partial renewal of the Court and vacancies due to death or resignation.
15. Once the new Court is established the sub-committee will have to hold hearings every three years for the partial renewal of the Court but it is unlikely to be necessary to hear all candidates on those occasions, given the fact that many of the candidates will be outgoing judges seeking renewal of their term of office. The sub-committee would also have to hold special sittings whenever there are occasional vacancies to be filled due to the resignation or death of a sitting judge. For that reason it might be preferable to ask the Sub-Committee on Human Rights, which is a permanent sub-committee of the Committee on Legal Affairs and Human Rights, rather than an ad hoc sub-committee, to hold the hearings.
16. The hearings should take place in Strasbourg at Council of Europe headquarters. This should reduce the costs of the hearings and also provide an opportunity to candidates to see the working environment, the new Human Rights Building, meet the judges who already sit on the Court and members of the staff and get additional information from their diplomatic representation.
F. Conclusion
17. The Committee on Legal Affairs and Human Rights is of the opinion that — with the establishment of the new single, full-time European Court of Human Rights — there should be a more professional approach to the election procedure. Candidates should submit their biographies on the basis of a model CV and, in addition, an Assembly sub-committee — either the Sub-Committee on Human Rights or an ad hoc committee of the Committee on Legal Affairs and Human Rights — should hold hearings of the candidates. They should subsequently report to the Assembly's Bureau and to the political groups, thus enabling Assembly members to make an informed choice. It is for this reason that the report contains a draft resolution. In addition, as the co-operation of the Committee of Ministers is necessary, the report also includes a draft recommendation asking the Committee of Ministers to grant its full support and to make the necessary budgetary appropriations.
18. Finally, but it is perhaps superfluous to say so, it may be stressed that these proposals stay within the limits of the Convention and do not aim at granting more powers to the Assembly than it already has. They only aim at enabling the Assembly to improve its own procedures under the Convention.
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Reporting committee: Committee on Legal Affairs and Human Rights.
Budgetary implications for the Assembly: none for the Assembly itself, but the Council of Europe is invited to pay, on its budget, the travel and subsistence expenses of the candidates who are invited for an interview at the Organisation's headquarters.
Reference to committee: Order No. 485 (1993).
Draft resolution and recommendation adopted unanimously by the committee on 11 December 1995.
Members of the committee: Mrs Err (Chairperson), MM. Schwimmer, Jansson, (Vice-Chairpersons), Amaral, Arbnori, Bartumeu Cassany, Berti, Bindig, Bučar, Candal, Cimoszewicz (Alternate: Bartodziej), Cioni, Columberg, Dees (Alternate: Jurgens), Deniau, Endziņš, Fenech, Fogaš, Frunda, Fry, Fuhrmann, Galanos (Alternate: Christodoulides), Mrs Gelderblom-Lankhout, MM. Grimsson, Guenov, Hagĺrd, Mrs Holand, Mr Hunault, Mrs Jaani, MM. Jaskiernia, Jeambrun, Kairys (Alternate: Bobelis), Karas, Kirca (Alternate: Mimaroǧlu), Kirkhill, Koschyk, La Russa, Loutfi, Maginas, Magnusson, McDowell, Mészáros, Moeller (Alternate: Kaalund), Németh, Poppe, Rathbone, Rhinow, Robles Fraga (Alternate: López Henares), Rodeghiero, Rokofyllos, Severin, Simonet, Solé Tura, Solonari, Trojan, Weyts, Mrs Wohlwend.
N.B. The names of those members who took part in the vote are printed in italics.
Secretaries to the committee: Mr Plate and Ms Kleinsorge.