8 September 1999
National procedures for nominating candidates for election to the European Court of Human Rights
Committee on Legal Affairs and Human Rights
Rapporteur: Mrs Renate Wohlwend, Liechtenstein, Group of the European People's Party
After having improved its own procedure for the selection of candidates for election to the European Court of the Human Rights, the Assembly noted that the process for the selection of candidates at national level was left entirely to the discretion of the governments and that it varied considerably from one country to another.
The Assembly, with the aim both of helping the governments in their selection procedure and of having the most suitable candidates to carry out the functions of judge on the European Court of the Human Rights, recommends a certain number of concrete measures, in particular: a call for candidatures through the press, the selection of candidates with experience in the field of human rights and a good knowledge of one of the official languages, the presentation of candidates of both sexes and consultation of the parliaments by the governments before the list of candidates is drawn up.
I. Draft recommendation
1. Looking ahead to the entry into force of Protocol N° 11, the Assembly adopted Resolution 1082 (1996) on the procedure for examining candidatures for the election of judges to the European Court of Human Rights, in which it agreed to improve its own procedure for the selection of candidates.
2. In Order N° 519 (1996), it also instructed its Committee on Legal Affairs and Human Rights to examine the question of the qualifications and manner of appointment of judges to the European Court of Human Rights, with a view to achieving a balanced representation of the sexes.
3. In accordance with these decisions, the Assembly sent all candidates a model curriculum vitae, set up an ad hoc sub-committee, which interviewed the candidates, and then elected the judges in January 1998, April 1998 and June 1999.
4. However, it remains the case that the national procedures for selecting candidates, a matter on which the European Convention on Human Rights is silent, are not always satisfactory.
5. In the light of the replies provided by national delegations to a questionnaire, and of the experience gained on the occasion of the procedure for electing judges to the Court, the following observations may be made:
i. the method of selecting candidates varies considerably from one country to another;
ii. in the majority of cases there are no rules governing the selection of candidates;
iii. a substantial number of governments did not include a woman on their list of three candidates;
iv. the candidates put forward did not always meet the criteria established by the Convention: either they lacked experience in human rights, or had never held judicial office, or were not sufficiently fluent in at least one of the Council of Europe’s two official languages.
6. In order to remedy these shortcomings and assist the governments of the member states in their procedures for selecting candidates for the next elections, the Assembly recommends that the Committee of Ministers invite the governments of the member states to apply the following criteria when drawing up lists of candidates for the office of judge in the European Court of Human Rights:
i. issue a call for candidatures through the specialised press, so as to obtain candidates who are indeed eminent jurists satisfying the criteria laid down in Article 21 (1) of the Convention;
ii. ensure that the candidates have experience in the field of human rights, either as practitioners or as activists in non-governmental organisations working in this area;
iii. select candidates of both sexes in every case;
iv. ensure that the candidates are in fact fluent in either French or English and are capable of working in one of these two languages;
v. put the names of the candidates in alphabetical order.
7. The Assembly also recommends that the Committee of Ministers invite the governments of the member states to consult their national parliaments when drawing up the lists so as to ensure the transparency of the national selection procedure.
II. Draft order
The Assembly, referring to its Recommandation …(1999) on the procedure for the nomination of candidates to the European Court of Human Rights at national level, instructs the Sub-Committee on the Election of Judges of its Committee on Legal Affairs and Human Rights, to make sure that in future elections to the Court, member states apply the criteria which it has drawn up for the establishment of lists of candidates, and in particular the presence of candidates of both sexes.
III. Explanatory memorandum by Mrs Renate Wohlwend
1. It will be remembered that Protocol N° 11 to the European Convention on Human Rights entered into force on 1 November 1998.
2. In accordance with Article 22 of the ECHR, as amended by Protocol N° 11, “the judges [one in respect of each Contracting Party, as against one for each member state] shall be elected by the Parliamentary Assembly [for a period of six rather than nine years] with respect to each High Contracting Party by a majority of votes cast from a list of three candidates nominated by the High Contracting Party”. The Committee of Ministers is responsible for forwarding the candidatures to the Parliamentary Assembly.
3. In the past, given that it did not know the candidates, the Assembly very often merely ratified the choice of the High Contracting Party (in reality, the choice of the government) by electing the candidate whose name appeared first on the list.
4. For the elections to the new single Court, the Assembly wished to ensure that the best possible candidates would be elected, and consequently decided to improve its procedure for examining candidatures and selecting candidates with a view to achieving greater professionalism. On the basis of a report from the Committee on Legal Affairs and Human Rights (Rapporteur: Lord Kirkhill, United Kingdom, SOC), the Assembly adopted Resolution 1082 (1996), in which it proposed firstly that the candidates submit a model curriculum vitae, prepared by the Assembly, and secondly that the Sub-Committee on Human Rights or an ad hoc sub-committee of the Committee on Legal Affairs and Human Rights organise interviews with the candidates.
5. As a first step, and in order to have comparable information at its disposal, the Assembly opted for a model curriculum vitae, to be sent to all the candidates, who were requested to complete the document as part of their submission of candidature application. In the past, when candidatures for the office of judge at the European Court of Human Rights were forwarded to the Assembly by the Committee of Ministers, the accompanying curricula vitae very often contained mainly the information which the candidates themselves wished to include, or the information which the particular member state wished to convey. To facilitate comparison between candidates, it was essential that the information requested from them was presented in a systematic manner and along identical lines.
6. In Resolution 1082 (1996), the Assembly instructed its Committee on Legal Affairs and Human Rights to organise personal interviews with the candidates. These interviews were intended to supplement the assessment of the candidates’ qualities based on examination of their curriculum vitae.
7. The elections were held during the January and April 1998 part-sessions and, for the Georgian candidates, during the June 1999 part-session.
8. The fact remains that the nomination of candidates at national level is left entirely to the discretion of the High Contracting Parties. The ECHR says absolutely nothing about how the Contracting Parties are supposed to select them. The procedure for selecting candidates varies according to the government. However, as Lord Kirkhill observed in his report (Doc 7439), the expression “High Contracting Party” in Article 22 leaves 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 (see Lord Kirkhill’s report on the procedure for examining candidatures, Chapter III, B, paragraph 7).
9. In fact, only the criteria for holding office are laid down by the ECHR, and these give an indication of the qualifications and moral qualities required of the judges. Thus, Article 21 provides as follows:
“1. The judges shall be of high moral character and must either 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”.
10. The purpose of this report is therefore to enhance the election procedure by improving and if possible harmonising the national selection procedures.
11. For this purpose, Mrs Lydie Err (Luxembourg, SOC), the first rapporteur on national procedures for examining candidatures for the election of judges to the European Court of Human Rights, sent a questionnaire on the procedure adopted to date for selecting the three candidates to all the Parliamentary Assembly’s national delegations on 24 June 1997. The text of the questionnaire appears in the Appendix to this report. At its meeting of 2 March 1998, the Committee on Legal Affairs and Human Rights appointed me as rapporteur on this matter, to replace Ms Err, who was no longer a member of the Assembly.
12. Analysis of the replies to the questionnaire provides information that should enable the Assembly to draw up proposals for improving the selection procedure at national level. The experience gained in the elections of January 1998, April 1998 and June 1999 will also provide valuable additional material.
B. Nomination of candidates by the High Contracting Parties
- Analysis of the replies to the questionnaire
13. The questionnaire on national selection procedures sent to national parliamentary delegations on 24 June 1997 was expected to provide the information needed for the preparation of this report. Although the questionnaire was sent to the 40 national delegations in the Parliamentary Assembly, replies were received from only 20 (Belgium, Bulgaria, Croatia, Czech Republic, Estonia, Finland, Greece, Latvia, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, San Marino, Spain, Sweden, Switzerland, Turkey, the United Kingdom), ie, exactly half. The final replies were received in June 1998, one year after the questionnaire was sent out. Not all states displayed the same concern for precision and clarity in their replies; some were even somewhat sparing with details, or had not understood the questions. Nevertheless, in light of the replies received, it is possible to identify a number of points regarding national selection procedures and the candidates’ qualifications which, by and large, seem relevant to all the member states.
i. Drawing up of lists of candidates for election to the office of judge. Consultation with the delegation. Call for candidatures
14. The process of selecting candidates was almost exclusively the preserve of national governments. In Belgium and Slovenia, the final decision was made by Parliament. In some instances, the national parliamentary delegations to the Council of Europe were consulted by way of interviews with the official candidates (Estonia, Malta, the Netherlands, San Marino, Spain, Sweden, Switzerland, Turkey, the United Kingdom). In several countries (Austria, Malta, Poland, United Kingdom), the press was critical of the choice of candidates, and the Secretary General received numerous individual protests (from Croatia, France, Luxembourg, Poland and Slovenia).
15. Only the Belgian, Croatian, Polish and United Kingdom governments issued a public call for candidatures. This was done through an announcement in a major newspaper. Several governments issued a limited call via the state institutions; in these cases, the screening of candidates proposed by the higher courts and the law faculties was carried out in two stages; after an initial selection, carried out by a ministerial committee on the basis of criteria that had not been determined in advance, the final decision was taken jointly by the Justice and Foreign Ministers. Some governments which used an internal procedure within the administration took account of unsolicited candidatures.
16. San Marino proposed a foreign national as a candidate. However, this person was a national of another Council of Europe member state. Liechtenstein did likewise.
ii. Age of candidates
17. By introducing Article 23, paragraph 6, into the Convention, Protocol N° 11 set the age limit for holding the office of judge at 70 years. However, about a dozen candidates were already 65 years old by the date the Protocol entered into force. The proportion of very young candidates (30 –39 years old) was low.
iii. Candidates’ professional activities
18. The most frequently occurring category was undoubtedly that of judges and prosecutors, almost all of whom were attached to a supreme court. On the other hand, there were few candidates from constitutional courts or from among judges holding office in appeal courts and the like. Law professors were well represented. A relatively limited number of lawyers (19 in total) were put forward, and there were even fewer candidates from the world of politics (5).
19. The candidatures of officials from state bodies primarily concerned civil servants exercising responsibilities in the legal field, either in the Ministry of Justice or the Foreign Ministry. Governments did not hesitate to submit candidatures for representatives holding diplomatic status, including permanent representatives to the Council of Europe, namely those of Russia, Slovakia and Turkey.
iv. Candidates’ experience in the field of human rights
20. The standardised model curriculum vitae enabled candidates to give an account of their experience and professional activities and to list any publications. It became clear that relatively few of the candidates had experience in the field of human rights, and that this consisted of activist-type duties for non-governmental organisations working in this field, or of functions exercised within committees of experts dealing with human rights questions at the United Nations or the Council of Europe. Some states submitted candidates who had acted as the government's agent or counsel before the European Court or Commission of Human Rights.
21. A large number of candidates could not in fact demonstrate any human rights activity worthy of the name.
v. Political posts held by candidates
22. The replies to this question were evasive. There were relatively few candidates holding national political office, and only a small number held governmental or parliamentary posts.
vi. Evaluation of the “high moral character” which the candidates are expected to possess
23. The amended Article 21 (1) of the Convention states: “The judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence”.
24. Countries provided fairly vague replies to the question of how they evaluated the “high moral character” that is required of candidates. In the majority of cases, candidates’ moral character was recognised and no particular proof was necessary. The small size of a state meant that this general moral character was easily established. General moral character could be based on the public reputation which the candidate enjoyed by virtue of holding high office for which moral character was already a prerequisite. Moral character could also be judged in the light of the candidate’s professional and academic reputation, or even by the trust built up on a personal level over several years. One reply stated that this requirement was demonstrated by the candidates’ attachment to the principles of the ECHR.
25. The criterion of high moral character is difficult to evaluate, and should be assessed from two angles: firstly, if high moral character is a prerequisite for holding high office in the country of origin, it can be assumed that those who hold such office have already demonstrated this quality; secondly, the candidate should give clear evidence of his or her attachment to the values and principles on which the Council of Europe is based. As Lord Kirkhill emphasises in his report (Doc 7439), the sub-committee had little means of checking the information provided by the governments or by the candidates themselves with regard to the criterion established by the amended Article 21(1) of the Convention (see Lord Kirkhill’s report on the election of judges, Chapter III, paragraph 15).
vii. Submission of female candidates
26. The Parliamentary Assembly’s Order N° 519 (1996) on the procedure for examining candidatures for the election of judges to the European Court of Human Rights urged that there be at least one female candidate per list. This recommendation was ignored by a large majority of states. Twenty-six countries submitted a list that included no women (Andorra, Austria, France, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Poland, Romania, Spain, Turkey, Greece, Hungary, Ireland, Iceland, Cyprus, Czech Republic, San Marino, the United Kingdom, Ukraine, Switzerland, Portugal, Liechtenstein). Ten countries submitted at least one female candidate (Slovenia, Belgium, Sweden, the Netherlands, Norway, Estonia, Denmark, Finland, “the former Yugoslav Republic of Macedonia”, Germany), and four countries put forward two women (Bulgaria, Croatia, Albania, Slovakia). There were very few cases in which a female candidate was put at the top of the list (the Netherlands, Slovakia, Bulgaria). Consequently, the Assembly, which wished to elect a Court in which the proportion of women was considerably higher than had been the case in the former Court, was in certain instances forced to apply the principle of positive discrimination, ie the principle that in the case of equal qualifications between candidates preference should be given to the female candidate.
viii. Experience gained during the selection procedure at Assembly level
27. In its role as interviewing committee, the Sub-Committee on the election of judges to the European Court of Human Rights met four times (in December 1997, January 1998, April 1998 and June 1999). It conducted interviews with the candidates: each interview lasted fifteen minutes and focused on questions concerning the candidate’s curriculum vitae or the functioning of the European Convention’s machinery. The conversations took place in one of the Council of Europe’s two official languages, thus making it possible to check the candidate’s linguistic skills immediately. In this respect, it is regrettable that a significant proportion of the candidates had an insufficient grasp of English or French.
28. Unfortunately, the Sub-Committee was not in a position to remedy all the shortcomings found in the curricula vitae.
29. Following the interviews, the Sub-Committee on the election of judges made proposals to the Parliamentary Assembly. More often than not, the ranking of candidates as established by states was approved, because the first candidate was quite simply the best. When the sub-committee changed the order of the candidates, its recommendation was not always followed by the Assembly. In a few rare cases, the Sub-Committee refrained from recommending a name. The relatively high age of certain candidates with regard to the age limit of 70 does not seem to have had an adverse effect on their candidatures.
30. In three instances, lists were refused. The first lists submitted by Bulgaria, Croatia and San Marino were rejected on the grounds that only one candidature was acceptable, and that no real choice was thus offered to the Assembly.
31. The judges should have been elected by the Parliamentary Assembly in a single ballot at the end of January 1998, during the first annual part-session. In practice, however, only 31 judges could be elected, as the lists of the eight remaining countries were not ready (namely those of the United Kingdom, Ukraine, Bulgaria, Croatia, San Marino, Portugal, Liechtenstein and Slovenia). It is possible that the two phases of voting provided opportunities for giving candidates a second chance, or even for manoeuvring.
32. Several factors explain the staggering of the election of the judges. Some lists were declared “inadmissible” by the Sub-Committee. Other lists were not submitted in time owing to delays in the national procedures for selecting candidates (Liechtenstein, Slovenia). In one instance, the delay was due to the withdrawal of the list initially submitted, two of the candidates having stood down (Portugal). Finally, there were two lists for which not all the candidates could be interviewed in December 1997 or January 1998, as the candidates were unable to attend the interviews on the scheduled dates (the United Kingdom, Ukraine).
33. On 27 January 1998, 30 of the 31 judges’ posts were filled in the first round of voting. The appointment of one judge (for Belgium) required a second round, which took place during the same part-session. Similarly, in April 1998, the eight judges were elected following a single round of voting. Following the two elections, the Assembly confirmed its commitment to increasing the number of women.
34. The official state candidate was rarely defeated. The outgoing members of the European Court and Commission of Human Rights were not automatically elected. In situations where an outgoing judge and commissioner were standing against each other, the former almost always won.
C. Recommendations on the selection procedure
i. Publicising of the call for candidatures
35. In order to ensure complete transparency in the selection of candidates, states should display greater openness with regard to unsolicited candidatures and public calls for candidatures. In some countries, the lack of transparency in the procedure for selecting candidates led the press to question the arrangements for this procedure. Lists were often the result of an arbitrary political decision. Partisan considerations lay behind the elimination of numerous candidates in the national selection procedures. Thus, several outgoing judges or commissioners were subject to political sanctions1. Many complaints were submitted by rejected candidates. The Sub-Committee’s recommendations, and even its composition, did not escape criticism. In this connection, it was stressed that the system’s integrity demanded a fair and effective procedure, which should have guaranteed that partisan considerations did not interfere with the election of the candidates2.
ii. Selection criteria
36. The proportion of candidates with recognised experience in the field of human rights is not in keeping with the requirements of the Convention. Some candidates did not even conceal their lack of experience in their curriculum vitae, and others concealed it very clumsily. States should take greater pains to select candidates who, being called to hold such prestigious office, can demonstrate human rights activities worthy of the name.
37. Bearing in mind the technical expertise required, it was essential that the future judges were legal practitioners. In addition, the lists submitted by states should better reflect the range of judicial professions, by including more practising legal experts (lawyers).
iii. Equality between women and men
38. The Assembly wished to increase the representation of women within the Court. Clearly, it could only appoint them on the basis of the lists on which they appeared. The inclusion of female candidates on the lists was not mandatory and the Assembly could not reject purely male lists or even exert pressure on the states concerned.
39. The absence of female candidates from the majority of lists meant that the male candidates on those lists that did include women were penalised. The Assembly applied the principle of positive discrimination, deliberately rejecting suitable male candidates in favour of equally appropriate female candidates so as to obtain a balanced representation of the sexes. However, this approach is far from ideal. States should therefore take greater account than they did of the Assembly’s wish to see a female candidate among the three candidates submitted by the governments. It might even be appropriate in the future for the ad hoc sub-committee to send back lists containing no female candidatures. Indeed, it seems inconceivable for governments to present exclusively male lists when women hold judicial office at the highest level in all countries.
iv. Parliamentary consultation
40. One of the Assembly’s constant concerns has been to ensure the complete transparency of the procedure for selecting candidates. To this end, it seems appropriate to involve the national parliament closely in the process.
D. Conclusions and recommendations
41. The provisions adopted by the Assembly in 1996 to improve its own procedure for examining candidatures were primarily intended to guarantee an assessment based on objective criteria and greater equality between candidates. Judging by the approach which states and candidates are now adopting, the Assembly has partly achieved its objectives. However, in selecting their candidates the Contracting Parties did not always show scrupulous respect for the Assembly's concerns.
42. In order to remedy this situation and improve the procedure further, with an eye to the elections to replace half the Court’s judges in 2001 and 2004, the following recommendations should be made:
i. The most reliable way would be for the Assembly, without attempting to impose harmonisation of national selection procedures, to draw up for the attention of governments a list of essential criteria from which they would derive very great benefit, namely:
- public advertising for candidatures through the press, so that the selection is made between candidates who are indeed eminent jurists satisfying the criteria laid down in Article 21 (1) of the Convention;
- the presence of candidates of both sexes on each list, so as to apply the principle of equal opportunities between men and women;
- the drawing up of more balanced lists from the point of view of the candidates’ professional activities, to ensure that all the judicial professions are represented;
- a requirement that candidates possess experience in the field of human rights to be able to apply for the office of judge at the European Court of Human Rights;
- the essential criterion of having been a legal practitioner as well as possessing a law degree;
- a requirement of sufficient linguistic skills to permit the judges to draw up judgments in at least one of the two official languages.
ii. Although governments are responsible for submitting the lists of candidates, it would be appropriate to consult the national parliament about the proposed candidates, so as to ensure the transparency of the national selection procedure.
Qualifications and way of appointment of candidates to the European Court of Human Rights
Questionnaire addressed to the national delegations to the Parliamentary Assembly
1. How are the lists of candidates for election as judges drawn up? Is your delegation consulted while the lists are being prepared and, if so, to what extent? Is a call for candidatures publicised?
2. What have been the professional activities of candidates included on lists submitted by your country since joining the Council of Europe?
3. Did the candidates have experience in the human rights field? If so, what kind of experience?
4. Had they held political office? If so, which responsibilities and/or personal commitment did they have?
5. How was "the high moral character" required of the candidates assessed?
6. How many women have been proposed? What positions did they hold?
Reporting committee: Committee on Legal Affairs and Human Rights
Budgetary implications for the Assembly: none
Reference to committee: Order No. 519 (1996)
Draft recommendation adopted with 20 votes in favour, 2 votes against and no abstentions and draft order adopted unanimously by the committee on 2 September 1999
Members of the committee: MM Jansson (Chairperson), Bindig, Frunda, Moeller (Vice-Chairpersons), Mrs Aguiar, MM Akçali, Arzilli, Attard Montalto, Bal, Bartumeu Cassany, Brand, Bulic, Clerfayt, Columberg, Contestabile, Demetriou, Enright, Mrs Frimansdóttir, Mr Fyodorov, Mrs Gelderblom-Lankhout, Ms Hlavac, Mr Holovaty, Mrs Imbrasiene, MM Jaskiernia, Jurgens (alternate: Dees), MM Kelam, Kelemen, Lord Kirkhill, Mr Kresak, Mrs Krzyzanowska, Mr Le Guen, Ms Libane, MM Lintner, Loutfi, Magnusson, Mancina, Mrs Markovic-Dimova, MM Martins, Marty, McNamara, Mozetic, Mrs Näslund, MM Nastase (alternate: Mrs Ionesco), Pavlov, Pollo, Polydoras, Mrs Pourtaud, MM Rippinger, Robles Fraga, Rodeghiero (alternate: Speroni), Mrs Roth, Mrs Roudy, MM Saakashvili, Schwimmer, Shishlov, Simonsen, Solé Tura (alternate: Mrs Calleja), Solonari, Svoboda, Symonenko (alternate: Khunov), Tabajdi, Verivakis, Vishnyakov, Vyvadil, 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, Ms Coin and Ms Kleinsorge
1 See FLAUSS J.F., “Radioscopie de l’élection de la nouvelle Cour européenne des droits de l’homme”, Rev. trim. dr. h., 1998, pp. 437 and 440.
2 See David Pannick QC’s article in The Times of 19 May 1998.