Doc. 8835 revised
10 October 2000
National procedures for nominating candidates for election to the European Court of Human Rights
Recommandation 1429 (1999)
Reply from the Committee of Ministers
adopted at the 722nd meeting of the Ministers’ Deputies (21 September 2000)
The Committee of Ministers recognises the importance of the considerations which led the Assembly to adopt Recommendation 1429 (1999).
In preparing its reply to the Recommendation, the Committee has sought the opinion of the European Court of Human Rights, which is the object of broad agreement, and the text of which is appended to this reply.
The Committee considers that all the phases of the procedure of election of Judges of the Court should be such as to ensure that the most appropriate persons are elected, and that in this context national procedures for nominating candidates are of key importance.
The Committee recalls that Article 21, paragraph 1, of the Convention, which provides that "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" constitutes an obligation upon High Contracting Parties to the Convention with direct relevance to the procedures they adopt, and the criteria they apply, in nominating candidates.
The details of the procedures chosen by states in order to nominate candidates for election to the Court are a matter for sovereign national decision. The Committee notes that judicial structures and cultures vary considerably from country to country, and that consequently a corresponding variation of selection methods is inevitable and not necessarily deleterious. Nonetheless, the Committee shares the view of the Assembly that these procedures should satisfy a number of important criteria, including in particular transparency and fairness, and that such procedures should be applied in a consistent matter.
With regard to the recommendations presented in paragraph 6 of the Recommendation, therefore, the Committee makes the following comments:
- With regard to paragraph 6.i, issuing a call for candidates in the specialised press would be one way of satisfying the criteria of transparency and fairness, but there are also other ways through which this could be achieved;
- With regard to paragraph 6.ii, the Committee draws attention to point C 3 of the Court's opinion;
- With regard to paragraph 6.iii, the Committee recalls that, in May 1997 (593rd meeting, item 4.1b: balanced representation of women and men in the new European Court of Human Rights), the Deputies,
“in order to achieve a more balanced representation of women and men in the new European Court of Human Rights, invited the governments of States Parties to the European Convention on Human Rights:i.
i. to foster a more balanced representation of women and men when drawing up the national lists of candidates to be put forward for election to the Court;
ii. to ensure that the qualifications and experience of all the candidates put forward, whether men or women, allow their candidatures to be taken into consideration on an equal footing.”
This decision was appended to the Secretary General's letter of 6 October 1997 to Governments calling for the submission of candidates.
- With regard to paragraph 6.iv, the Committee agrees with the Assembly that the requisite linguistic skills are essential for the efficient functioning of the Court.
- With regard to paragraph 6.v, the Committee notes the view of the Assembly that states submitting lists should avoid expressing any official preference for a particular candidate. The Committee of Ministers considers that it is a matter for individual states, in the light of their domestic procedures for nominating candidates, whether they wish to express a preference or not. In this regard the Committee notes that neither the Committee of Ministers, in its examination of states’ lists, nor the Assembly in its selection procedure, is obliged to accept the expressed preference of a state for a particular candidate.
Views may differ as to the question of consulting national parliaments (paragraph 7), having regard, in particular, to the fact that it is the Parliamentary Assembly, composed of national delegations, which takes the ultimate decision on the election of the judges. However, the Committee notes that, in addition, some states involve their parliaments in the process to varying extents. It acknowledges that such consultation may contribute to satisfying the criteria mentioned above, but considers that the decision as to whether or not to do so is a matter of national competence.
Finally, the Committee wishes to inform the Assembly that the Secretariat General has indicated its intention to enclose the text of the present reply with the letter to be sent to the States Parties inviting them to proceed with the nomination of candidatures.
OPINION OF THE EUROPEAN COURT OF HUMAN RIGHTS
on Parliamentary Assembly Recommendation 1429 (1999)
on national procedures for nominating candidates for election to the Court
(adopted by the Court
at its thirteenth plenary administrative session on 6 March 2000)
A. CONSULTATION OF THE COURT
The outcome of the process for the periodic renewal of the membership of the European Court of Human Rights being critical for its good functioning, the Court is pleased to accept the invitation received from the Ministers’ Deputies through their chairman, Ambassador Harman, to express its views on Parliamentary Recommendation 1429 (1999). In so far as it might help the Parliamentary Assembly and the nominating governments to perform their respective roles in the election process, the Court will always be available, within a framework of dialogue compatible with its judicial functions, to explain to them the reality of the way in which it works and what is expected of its members. More generally, the Court would welcome the opportunity to be consulted at a sufficiently early stage by the Parliamentary Assembly and the Committee of Ministers prior to the adoption of any text having a direct bearing on its activities.
B. THE LEGITIMACY OF THE PARLIAMENTARY ASSEMBLY’S CONCERNS
From the outset in 1950 the European Convention on Human Rights has invested the Parliamentary Assembly with the power of electing the judges of the Court. The institution of a full-time Court makes all the more justified the Parliamentary Assembly’s concerns to ensure that as far as possible the appointment of the judges be the product of a genuine and informed election from among candidates who are fully qualified to discharge the complex and sensitive duties involved in the office. The Parliamentary Assembly is thus right in stressing the importance of the composition of the lists of the candidates by the governments. This exercise is the starting point of the process of election and, if it is not properly done, the scope for the Parliamentary Assembly to carry out effectively its elective duty is correspondingly reduced.
C. THE COURT’S CONCERNS
Apart from having the basic interest in the appointment of judges of the highest quality, the Court does have two other main concerns to which it would respectfully draw the attention of the Committee of Ministers and the Parliamentary Assembly, namely
(a) that the ongoing process of renewal of membership through elections should not have as a consequence to weaken the effectiveness over time or the independence of the Court;
(b) that care should be taken in defining the relevant experience required of candidates.
1. Practical importance of having a certain continuity in the Court’s membership
In order to be effective in both quantitative and qualitative terms, the Court needs to acquire and preserve an accumulated judicial experience through a certain continuity in its membership. Too radical and frequent a turnover in judges carries with it a risk of adversely affecting
(a) the Court’s operational efficiency in processing the vast volume of applications lodged (since new judges need time to become fully operational, not only in terms of their familiarity with the procedure and law under the Convention but also, as experience has shown, often as regards their capacity to work effectively in both of the official languages), and
(b) the consistency of the case-law, to the detriment of legal certainty (which is a virtue in the interest of both applicants and respondent governments).
With a relatively short term of office for the judges - six years as compared with nine years under the former system - it will be difficult to counter this dual risk unless a reasonable proportion of the judges serve more than one term. The problem is exacerbated by the even shorter term (three years) allocated to the half of the Court’s membership which is involved in the forthcoming first round of renewals. This is therefore a consideration that should be borne in mind in the selection of candidates and the election of judges.
2. The effect of a short term of office on judicial independence
One of the aspects of Protocol No. 11 to the Convention on which reservations have been expressed is precisely the shortness of the judges’ term of office. Against the background of a system enabling re-election of judges, commentators have pointed to the dangers of undermining the independence of the judges that such a short term entails.1 In the Court’s view, therefore, national procedures for nominating candidates should embody safeguards securing the independence of judges, notably those susceptible of serving a further term.
3. Wisdom of making experience as a human rights practitioner or activist a required
Paragraph 6 (ii) of the Parliamentary Assembly’s Recommendation 1429 (1999)2 might be read as suggesting that experience as a human rights practitioner or activist is not merely one relevant form of experience among others but an essential requisite for all candidates. The Court would find it unfortunate, and indeed detrimental to the balanced membership it needs, if such an approach were to be taken in relation to the selection of candidates. For its part, the Court would urge the adoption of a different, broader conception of relevant experience. The European Convention on Human Rights not only protects against the kind of naked abuse of governmental power that prompted its adoption in the aftermath of the Second World War, but also provides for the international judicial review of the exercise of democratic discretion in good faith by national authorities. As the Court’s case-law has explained on countless occasions, at the heart of this review lies an assessment whether a fair balance has been struck between the requirements of the protection of the individual’s fundamental rights and the demands of the general interest of the community.3 The role of an activist is necessarily partisan: to espouse a cause, to take sides; whereas a judge on the Strasbourg Court has to set himself or herself above the parties, be impartial, weigh up the competing interests, notably those of the individual and the community at large, and decide judicially in the light of all the circumstances. This being so, judicial experience or other experience of striking the “fair balance” in a national context would constitute an invaluable attribute for any candidate for judicial office in Strasbourg. This is especially so since those elected as judges will often be called on to review legislation enacted by national parliaments and decisions of national supreme and constitutional courts, which moreover are expected to follow the Convention case-law. In the Court’s view, candidates should above all have a proven commitment to the democratic values underlying the Convention, ideally combined with a thorough practical knowledge of their own domestic legal order and linguistic proficiency in the Court’s official languages. Finally, it will be recalled that the Court has traditionally been composed of roughly one third professional judges, one third practitioners and one third academics. This blend of experience has proved its worth over the years.
1 See, for example, two articles by judges on the former Court: Rudolf Bernhardt, “Reform of the Control Machinery under the European Convention on Human Rights, Protocol No. 11”, 89 American Journal of International Law p145 at p. 153 (1995); and Nicolas Valticos, “Quels juges pour la prochaine Cour européenne des Droits de l’Homme?”, Liber Amicorum Marc-André Eissen, pp. 415-33 (Bruylant, Bruxelles, 1995).
2 Which states that one of the criteria for the governments to apply when drawing up the lists of candidates is to “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”.
3 See, for example, Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, § 69.