See related documentsInformation report
| Doc. 12827
| 23 January 2012
Ad hoc judges at the European Court of Human Rights: an overview
Committee on Legal Affairs and Human Rights
Rapporteur : Ms Marie-Louise BEMELMANS-VIDEC,
Netherlands
Origin - Reference to committee: Doc. 11976, Reference
3600 of 2 October 2011. Information report approved by the committee
on 16 November 2011. 2012 - First part-session
Summary
Judges on the European Court of Human Rights, who are elected
by the Parliamentary Assembly, are vested with democratic legitimacy:
Article 22 of the European Convention on Human Rights. This is not
the case when the need arises to appoint an ad hoc judge who, until
recently, was designated by a High Contracting Party once proceedings
had commenced.
The manner in which ad hoc judges are designated has been
improved with the entry into force of Protocol No. 14 to the Convention.
Under the new procedure, a High Contracting Party is required to
draw up a reserve list from which the President of the Court appoints
an ad hoc judge, when necessary. But this procedure still lacks democratic
legitimacy. The Committee on Legal Affairs and Human Rights is of
the view that further consideration of this situation is called
for in the future.
1. Introduction
1. The authority and credibility of any judicial institution
depends on the independence and impartiality of its judges. This
requirement has been enshrined in Article 6 of the European Convention
on Human Rights (ETS No. 5, hereafter “the Convention”).
Moreover,
it is not sufficient that judges are independent and impartial –
they must also appear to be so.
To ensure that each judge sitting
on the European Court of Human Rights (“the Court”) both possesses
these qualities and appears to do so, a fair and transparent nomination and
election procedure ought to be ensured. Recently, there has been
some criticism expressed concerning the independence or appearance
of independence
of
the judges of the Court and, in a few specific instances, with regard
to the appointment procedures for ad hoc judges to the Court.
2. Insofar as ad hoc judges are concerned, the principal criticism
has stemmed from the fact that, unlike all the other judges, who
are elected by the Parliamentary Assembly by virtue of Article 22
of Convention, their appointment circumvents this procedure. Under
the system that existed prior to the entry into force of Protocol No.
14 in June 2010, States Parties to the Convention, when the “national
judge” was unable to sit, withdrew or was exempted, could in effect
appoint virtually whomever they considered was best suited as an
ad hoc judge in a given case. This prompted the Assembly to state
in 2004 that, as long as ad hoc judges remained excluded from the
election procedure, they would continue to lack legitimacy.
In
its 2008 report on the nomination of candidates and election of
judges to the Court, the Committee on Legal Affairs and Human Rights
noted that the Assembly still had no say in the manner in which
ad hoc judges were appointed and that it remained unclear what role,
if any, it should or could play in that respect under the new appointment procedure
introduced by Protocol No. 14 to the Convention.
It was concluded that this
subject merited further reflection.
3. This subject was brought to the fore in the years 2007-2009,
when Ukraine refused to provide the name of a third candidate for
the post of judge to the Assembly, thereby effectively preventing
the latter from proceeding with the election of a judge with respect
to Ukraine. Instead, Ukraine appointed an ad hoc judge for a prolonged
period of time.
As a reaction to this,
the Assembly determined that Ukraine’s action threatened to undermine
the Court’s credibility and constituted an illegitimate abuse of
a procedure, in violation of the country’s Convention and statutory
obligations.
Fortunately, this matter
was settled – after a clarification of the legal position by the
Court – in a satisfactory manner.
4. It is in the interests of the entire Convention system that
the Court – through its judges – is in reality and in appearance
absolutely free from any outside pressure, interference or suspicion
of lack of impartiality. Hence the importance of obtaining a clear
picture of the manner in which ad hoc judges are designated and
of how the system operates today.
2. “Democratic legitimacy” of judges elected
by the Parliamentary Assembly
5. It has been noted
that:
“Legitimacy can be no more important
to any other institution than it is for the European Court of Human Rights.
As a supranational human rights court, it does not have enforcement
or sanctioning powers. Furthermore, its main task is to judge the
actions of exactly those state authorities upon whose support it
relies to enforce its judgments. Thus, it primarily relies on its
legitimacy to gain respect and deference from domestic judges and
politicians...”
6. A judge is legitimate to the extent to which he or she is
independent and impartial.
Democratic legitimacy
requires,
inter alia, the
separation of powers secured by a strict separation of the judiciary
from the political system.
In
order to provide for this, Article 22 of the Convention assigns
the Assembly the competence to elect the judges to the Court.
This
Article states that “[t]he judges shall be elected by the Parliamentary
Assembly 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”.
This gives
the process democratic legitimacy since the members of the Assembly
come from the national parliaments, the legislative organs of the
member states.
7. In its
Resolution
1726 (2010),
the
Assembly reiterated that:
“7.
The authority of the Court is contingent on the stature of judges
and the quality and coherence of the Court’s case law. In this context
it is the Assembly’s responsibility to elect judges of the highest
calibre to the Court from a list of three candidates nominated by
states parties. Recalling its Resolution
1646 (2009) on the nomination of candidates and election
of judges to the European Court of Human Rights, the Assembly reaffirms
its call that national selection procedures must be rigorous, fair
and transparent in order to enhance the quality, efficacy and authority
of the Court.”
8. It is worth noting that the word “judge”, as used in Article
22, is not defined, and it could also be understood to refer to
a function rather than a status. Such an understanding would lead
to the conclusion that Article 22 of the Convention also includes
“persons sitting in the capacity of a judge” (see Article 26, paragraph 4,
of the Convention), namely, ad hoc judges since these persons fulfil
the function of a judge.
3. Ad hoc judges at the European Court of Human Rights
3.1. Role and designation procedure
9. An ad hoc judge may be appointed when the elected
judge is unable to sit in the chamber, withdraws or is exempted
or if there is none.
This may occur, for instance,
where a conflict of interest prevents the sitting judge from ruling
on a case brought before the Court. The need to appoint an ad hoc
judge may also arise when a sitting judge resigns or retires. In
such cases, the ad hoc judge covers cases until a new judge is elected
by the Assembly with respect to a given state.
10. The procedure for appointing an ad hoc judge that was in place
before the adoption of Protocol No. 14 allowed the state party substantial
discretion in choosing the person to be appointed as ad hoc judge
for a given case after the proceedings had begun, namely, when the
content of the complaint was already known. Thus, this procedure
not only lacked democratic legitimacy (election by the Assembly)
but also – so it could be argued – contradicted the equality of
arms principle and raised concerns regarding the independence and
impartiality of the ad hoc judge.
It was also lengthy and could
affect the timely examination of a case, owing to both the appointment
procedure itself and the fact that the ad hoc judge, once appointed,
often had other commitments in place.
In fact, delays have occurred in
the past in processing cases as a result of difficulties relating
to the nomination of ad hoc judges. For instance, the Yukos case
was
postponed first to allow the ad hoc judge to familiarise himself
with the file and second because of his ill health. Delays also
occurred in a case concerning Serbia because the country had not
provided a list on time, as well as in a case concerning Turkey,
where there were questions about the judge’s impartiality.
11. Protocol No. 14 has partially remedied this unsatisfactory
situation. New Article 26, paragraph 4, of the Convention provides
for a judge’s replacement by a person – the ad hoc judge – “… chosen
by the President of the Court from a list submitted in advance by
that Party”.
As specified in the amended
Rules of Court, the states parties have to submit to the Court in
advance a list containing the names of three to five persons eligible to
serve as ad hoc judges for a renewable period of two years, from
which the President of the Chamber will choose, when the need arises,
to appoint an ad hoc judge.
A
further change brought in by the amended Rules of Court is that,
for the purposes of the application of Article 26, paragraph 4,
of the Convention, the names of the other elected judges to the
Court shall,
ipso jure, be
considered to be included on the list.
Additionally, when
a state party fails to appoint an ad hoc judge within thirty days
or fails to provide a satisfactory list, the Rules state that the
President of the Chamber shall invite the state to indicate within
thirty days the name of the persons it wishes to appoint from among
the other elected judges
– an option
voluntarily exercised by some states under the previous regime.
12. The use of the phrase “unless a State Party has opted to appoint
an ad hoc judge” in paragraph 1.
a of the
amended Rules renders the appointment of an ad hoc judge from among
the elected judges the default position. For instance, if the contracting
party does not reply within the above-mentioned thirty-day period
or if
it opts to appoint an ad hoc judge but fails to supply the registrar
with the required list (or if fewer than three of the persons indicated
in the submitted list satisfy the required conditions), it shall
be presumed to have waived its right of appointment. The right will
also be regarded as waived if the chamber finds that fewer than three
people on the list satisfy the requirements set out in the Rules.
Presumably,
under these circumstances, the President of the Court appoints the
replacement from among the substitute judges (that is to say, those
judges who are designated to sit in on cases in a judicial formation
as “substitutes” and who may be called upon to take the place of
members who are unable to sit: see Rules 24 to 27 of the Rules of
Court,
passim).
13. The new system strengthens the appearance of independence
since a state party will no longer play a decisive role in the appointment
of an ad hoc judge. Moreover, if ad hoc judges were to be increasingly
“co-opted” from the existing bench, they would obviously enjoy the
same democratic legitimacy as regular judges.
14. However, the appointment procedure may still give rise to
a legitimacy problem in that the ad hoc judge is appointed from
a list submitted by the states parties directly to the President
of the Court, whereas the Assembly remains excluded from the process.
Not
only does the procedure therefore lack democratic legitimacy, it
is also unclear how the President of the Court will choose the ad
hoc judge from the list provided by the state. With regard to regular
judges, states parties must provide the Assembly with a model curriculum vitae
for each candidate.
The Assembly examines
whether candidates possess the qualifications required for appointment
and the necessary high moral character and carries out an interview
process.
Without this assessment of
candidates and control over selection by the Assembly, the possibility
of bias and the risk of a lower calibre of judge are greater with
regard to ad hoc judges. This goes back to the basic problem of
judges, in certain instances, not possessing the same “democratic
legitimacy” as the (regular) judges elected by the Assembly.
3.2. Statistical data
3.2.1. General information
15. According to the figures provided by the Registry
of the Court, from 2007 to 2010, 77 ad hoc judges were appointed
(19 in 2007, 21 in 2008, 20 in 2009 and 17 in 2010), who participated
in the delivery of a total of 516 of the Court's judgments (79 in
2007, 40 in 2008, 246 in 2009 and 151 in 2010). If these figures
are compared with the overall number of judgments rendered in the
years 2007 to 2010 (1 503, 1 543, 1 625 and 1 499, respectively
), the percentage of cases in which ad
hoc judges were involved is not high but is nevertheless increasing.
16. Against this background, it is even more important that the
few cases involving ad hoc judges do not give rise to legitimacy
and independence issues, thus potentially undermining the credibility
of the Court. The fact that the institution of ad hoc judges has
worked tolerably well in practice
does
not alleviate the concerns it gives rise to,
namely,
that the nomination process is not transparent and that it may appear
that the ad hoc judge is not fully independent of the government
whose action he or she has to adjudicate.
The
example of the “abusive” appointment of an ad hoc judge, so as to
circumvent the election procedure envisaged by the Convention, may
also be mentioned in this connection.
3.2.2. Voting pattern
17. Several studies have been carried out regarding the
voting patterns of “national” and ad hoc judges. Many document that
the ad hoc judge demonstrates a stronger national bias than the
elected judge.
It has been argued that this is because
they do not feel much solidarity with elected judges and, unlike
them, are not exposed to group pressure in the same fashion.
Others argue, in the wider
context of international litigation, that it is a consequence of
the particular role that the ad hoc judge fulfils, that a person
would (or even should) not accept the role of ad hoc judge if that
person does not tend to agree with the government’s position.
18. The presence of a “national judge”, regular (elected) or ad
hoc, in the procedure before the Court is intended to ensure the
factual knowledge of the law and legal practice of the state concerned.
Arguably of greater importance is that it is thought to increase
the confidence of member states in the Court, as well as the willingness
of hesitant parties to accept the jurisdiction of the Court.
In addition, after a judgment has
been handed down, parties are more likely to execute and comply
with that judgment.
As
such, ‘national judges’ can, so it is argued, contribute to the
maintenance of the rule of law and the promotion of the necessary
public confidence in the international judiciary.
At
the same time, however, it could be argued that they present a greater
risk to a Court’s legitimacy because of doubts concerning their
independence and impartiality.
19. A study conducted in 2008
showed statistically
significant differences in the voting pattern of judges, to an extent
putting into question the hypothesis that judges are fully impartial
when they evaluate their national governments.
According to the study, when a ruling
favoured the respondent state, 100% of ad hoc judges and 95% of
regular judges from the respondent’s country voted with the majority.
These figures compare to 81% of other judges. In cases where the
ruling went against the respondent state, 33% of ad hoc judges and 16%
of regular judges dissented, compared with only 8% of other judges.
A
more recent study, which examined the voting pattern of ad hoc judges
at the Court from 2006 to 2010, has indicated that, in the 26 judgments
where ad hoc judges voted against the majority, they voted against
the state that nominated them in only eight out of the 26 cases.
In nine of the 26 cases, the ad hoc judge
was the only one to vote against the finding of a violation.
20. Despite these statistics, the fact that an ad hoc judge favours
the respondent state’s position does not in itself suggest bias.
It might, however, indicate that the selection procedure might not
have been “neutral” and that the state put forward the individual
with his or her views in mind. This renders it even more important
to ensure a careful selection procedure with respect to ad hoc judges,
which should guarantee the nomination/choice of persons of the highest
calibre, thus reaffirming the quality, efficacy and authority of
the Court.
3.2.3. Gender aspect
21. The Assembly believes that a society can be fully
democratic and make full use of its potential only if both women
and men are properly represented in decision-making bodies, including
the judiciary,
and
it has done its utmost to ensure that men and women are evenly represented
on public bodies – not least on the European Court of Human Rights.
Since
the Assembly imposed the requirement that a member of the under-represented
sex be included on candidate lists for the Court in 2004, “the proportion
of women on candidate lists has gone up considerably, and with it,
the proportion of women elected to the Court”.
22. On the other hand, thefigures
for ad hoc judges provided by the Registry of the Court for the
years 2007 to 2010 show that, under the previous rules, their direct
designation by member states could give rise to gender equality
issues. The percentage of women appointed as ad hoc judges in the
period in question amounted to 42% in 2007 (8 out of 19 ad hoc judges),
24% in 2008 (5 out of 21), 10% in 2009 (2 out of 20) and 23% in
2010 (4 out of 17).
23. Under the new Rules of Court introduced following the entry
into force of Protocol No. 14, the list of persons eligible to serve
as ad hoc judges must now include persons from both sexes.
The
effect of this development on the gender balance has yet to be observed.
At present, of those states that have submitted a list of ad hoc
judges (35 out of 47), it would appear that four do not have women
on their lists, contrary to what is required.
It will be interesting to observe
how the Court will handle this matter.
3.3. Qualifications of an ad hoc judge
24. An unchanged rule of the Court is that an ad hoc
judge shall be a person of high moral character and must either
possess the qualifications required for appointment to high judicial
office or be a jurisconsult of recognised competence.
The
Rules of Court (which needed to be redrafted, in part, to take into
account the new procedure instituted with the entry into force of
Protocol No. 14) state that an ad hoc judge must not be ineligible
to take part in the consideration of a case on any of the grounds
referred to in Rule 28
and must be in a position to meet the
demands of availability and attendance. Moreover, for the duration
of an appointment, he or she shall not represent any party or third
party in any capacity in proceedings before the Court.
The Assembly
indicated the need for further criteria for the appointment of
elected judges in its
Resolution 1627 (2008),
Resolution 1646 (2009) and
its
Recommendation 1649
(2004). It has introduced additional requirements, such
as “… an active knowledge of one official language of the Council
of Europe and the passive knowledge of the other” and the need for
fair, transparent and consistent national selection procedures.
But these are missing from the
“requirements” imposed on (persons put forward on lists of) ad hoc
judges. Hence, it is advisable that at least the linguistic requirements
be specifically referred to in the Rules of Court, given that an
ad hoc judge, once appointed, fully replaces the regular judge on
a case. Indeed, the model curriculum vitae, with its express stipulation
relating to the need for a person to possess an active knowledge
of one official language of the Council of Europe and a passive
knowledge of the other, should be a requirement in the Rules of
Court.
That
said, the lack of other requirements concerning ad hoc judges may work
to the advantage of the system; for instance, the judge may be of
the nationality of another member state,
and the maximum age requirement
(of 70) is not specified.
25. Furthermore, it must be noted that, notwithstanding the changes
made with the entry into force of Protocol No. 14 (and the qualifications
that ad hoc judges must hold, as stipulated in Rule 29 of the Rules
of Court), no requirement is imposed upon states to provide an explanation
as to the procedure followed in selecting (persons placed on lists
of) ad hoc judges. Article 26, paragraph 4, simply states that the
President of the Court will choose the ad hoc judge from a list
submitted by a state party. As indicated above, whilst this is an
improvement on the previous procedure, it still lacks the legitimacy
of the election procedure for regular judges, where responsibility
falls to the Assembly and where it is clear what the requirements
are. It is unclear how the President of the Court is expected to
reach this decision. This raises the question whether there would not
be advantages in ensuring that the Assembly plays a greater role
in verifying the appointment or even taking over the assessment
of the candidates proposed. First, it is already familiar with the
evaluation of candidates and possesses the necessary expertise.
Second, the necessary mechanisms are already in place, which means
that financial costs could be kept relatively low. However, this
possibility in itself raises two further issues. National selection
criteria for regular judges have also been subject to criticism
and are currently the subject
of on-going work within the Steering Committee for Human Rights
(CDDH).
A report prepared by the Assembly
states that minimum standards for the selection of judges must be
set out to ensure the Court's credibility and authority.
There
is also the question of whether it is advisable for the Assembly
to expend significant time and effort assessing each prospective
ad hoc judge on the list when there is no certainty of persons on
the list ever being chosen to sit in the capacity of judge.
Hence,
perhaps, the need to ensure that all lists, or persons put forward
as potential ad hoc judges, be “filtered“ by the advisory panel
of experts set up on candidates for election as judges (before lists
are transmitted to the Assembly) (see Committee of Ministers Resolution
CM/Res(2010)26).
4. Ad hoc judges in other international forums
4.1. In the wider context: selected examples
26. The right of states to appoint an ad hoc judge is
not granted by all international courts. In fact, even national
representation is not universal. A few selected examples will be
provided here to illustrate this.
27. The Court of Justice of the European Union (CJEU, formerly
known as the European Court of Justice or Court of Justice of the
European Communities) does not provide for the appointment of ad
hoc judges, nor does it, in specific proceedings, guarantee national
“representation” as such. It does, however, like the Strasbourg Court,
provide for balanced national representativeness on the CJEU as
a whole, through Article 19, paragraph 2, of the Treaty on European
Union, which stipulates in this respect that the Court of Justice
shall consist of one judge from each member state.
The
Statute of the CJEU states that “[a] party may not apply for a change in
the composition of the Court or of one of its chambers on the grounds
of either the nationality of a Judge or the absence from the Court
or from the chamber of a Judge of the nationality of that party”.
It
appears that, as “representativeness” of all 27 member States of
the European Union is catered for within this jurisdiction, the
internal procedural rules tend to concentrate on such matters as
the need to determine, for example, who must abstain from deliberations
to attain an odd number of judges in the decision-making process.
28. The 15-member International Court of Justice (ICJ), within
the United Nations system, guarantees national representation
and,
hence, the right to appoint an ad hoc judge.
However,
it must be noted that the ICJ does not deal with individual complaints;
the parties to disputes before it are sovereign states. Accordingly,
both parties may appoint a “national judge”, which preserves the
principle of equality of arms. Following the appointment, the registrar
communicates this choice to the other party, which may provide the registrar
with any observations it wishes to make. In the event of objection
or doubt, the Court makes the final appointment.
The
appointment of ad hoc judges before the ICJ, as well as its predecessor,
the Permanent Court of International Justice (PCIJ), has prompted
some criticism.
29. The International Criminal Court (ICC), as an 18-judge court,
does not guarantee national representation and hence does not provide
for the appointment of ad hoc judges. The decision against guaranteeing
national representation has not resulted, however, in a decision
to prohibit this. The Rome Statute provides that, in cases where
the impartiality of a judge is in doubt, for example, where he or
she was previously involved in any capacity before the ICC or in
a related case before the national courts, the judge shall be disqualified.
It
does not provide for the replacement of this judge, for example,
by the country that nominated him or her.
30. The International Criminal Tribunal for the former Yugoslavia
(ICTY) and the International Criminal Tribunal for Rwanda (ICTR)
have 16 regular judges and a maximum of nine ad
litem judges at any one time. These tribunals do not
provide for national representation nor for ad hoc judges.
31. As indicated, the ICTY and ICTR provide instead for the appointment
of
ad litem judges.
An
ad litem judge acts as a special
category of “additional judge” and differs from an ad hoc judge
in that he or she is elected in precisely the same manner as a regular
judge.
United Nations Security Council
Resolution 1329 provided for their appointment in order to enable
the tribunals to hear more cases and therefore “expedite the conclusion
of their work at the earliest possible date”.
They are
elected for a term of four years (the same term as permanent judges)
in order to allow the tribunals to deal with their fluctuating caseload.
The intention is that they are appointed to a particular case, thus
ensuring cases do not stall for lack of a requisite number of judges
and allowing for continuity. Their election procedure is comparable
with the election procedure of regular judges, that is to say, nominations
by states are forwarded by the UN Secretary-General to the Security Council,
which duly establishes a short list; this list is sent to the General
Assembly, which elects the judges.
4.2. In other regional human rights courts
32. The American Convention on Human Rights of 1969 grants
states the possibility to appoint ad hoc
, unelected
judges. The right to appoint an
ad hoc judge is provided for in Article 55 of this convention in order
to ensure their representation on the seven-member Inter-American
Court of Human Rights.
Article
19 of the Rules of Procedure sets forth the appointment procedure,
which was modelled on the pre-Protocol No. 14 procedure of the European
Court of Human Rights (ad hoc judges are appointed directly by the
state).
33. However, this situation has been somewhat “adjusted” following
the request by Argentina, in 2008, for an advisory opinion on the
institution of the ad hoc judge, indicating that the mechanism,
as applied, was contrary to the object and purpose of the American
Convention on Human Rights.
It argued
that Article 55 was intended to be used only in inter-state cases
and that its use with regard to individual petitions was contrary to
the principle of equality of arms.
In its advisory opinion,
the Inter-American Court of Human Rights agreed, declaring that
allowing the state to appoint an ad hoc judge in cases initiated
by means of an individual petition undermined the principles of
equality and non-discrimination, and the argument that “national
representation” was necessary to explain the domestic legal system
was not sufficient justification.
Accordingly,
it decided that ad hoc judges could be appointed only in inter-state
cases.
As part of the same request, Argentina
raised the issue of national representation and the risk of lack
of impartiality. The Inter-American Court agreed with the concern
and held that henceforth judges should refrain from participating
in cases filed by an individual against the state of which they
are a national.
34. For the sake of completeness, an additional comment should
be made here about yet another category of judge, namely, “interim
judges” (substitute judges). The main differences between ad hoc
judges and interim judges are the reasons for the appointment and
the relevant appointment procedures.
Ad hoc judges are appointed in order to guarantee
national representation. Interim judges (substitute judges) can
be appointed in order to preserve the required quorum of the court.
The Inter-American Court of Human Rights serves as an example in
this respect, providing for the appointment of interim judges if
necessary to preserve its quorum.
Interim
judges may serve until regular judges replace them.
While
the state party appoints its ad hoc judges, the Permanent Council
of the Organization of American States can appoint an interim judge.
35. Finally, the appointment of ad hoc judges is not provided
for in the 11-member African Court of Human and Peoples' Rights.
This
may be attributable to the fact that the founding texts of the African
Court, like the Rome Statute of the ICC, and unlike the European
Convention on Human Rights and American Convention on Human Rights,
do not permit national representation in individual cases.
On
the contrary, Article 22 of the Protocol to the African Charter
on Human and Peoples' Rights explicitly requires the exclusion of
any judge from a case “if the judge is a national of any state which
is a party to a case submitted to the Court”. If a judge resigns
before his or her term of office ends, the normal procedures are
followed. In this case, the replacing judge sits for the remainder
of the predecessor’s term.
36. The institutions of interim or
ad
litem judges, although quite common on the domestic plane,
are rare in the case of international tribunals. However, as indicated
above, the ICTY and the ICTR have successfully used
ad litem judges to expedite the
fulfilment of their mandate, while the Inter-American Court of Human Rights
may use interim judges to prevent serious delays in its work.
Whilst
these systems no doubt have their weaknesses,
the
institution of a category of interim or
ad
litem judges, perhaps tailored to the needs of the Strasbourg
system, could be worth considering in the future. The election –
by the Assembly – of such judges in a procedure that has democratic
legitimacy would enhance the Court’s credibility and, most important,
could avoid the suspicion of abusive appointment of ad hoc judges.
37. Relevant data on the experience with interim judges in the
Inter-American Court of Human Rights or ad litem judges
in the ICTY and ICTR should be collected and analysed in order to
evaluate these mechanisms in more detail. A recommendation on this
subject could be sent to the Committee of Ministers at some future date.
5. Practice and perspectives
38. The principle of national representation and hence,
in most instances, the institution of an ad hoc judge, must be carefully
balanced against the risk posed to the Court by a lack of legitimacy
and independence of judges. The states parties, the Court and the
Assembly must all play a part in achieving this balance. In 2009, the
Assembly urged states parties to the Convention to devise a system
that would satisfactorily resolve concerns expressed.
That
initiative was taken in a specific context, when a serious abuse
of the system had actually occurred.
39. Many of the issues raised have subsequently been addressed
in the course of the reform initiated by Protocol No. 14, if not
in the Convention itself, then by the Court in its amended Rules
of Procedure, as indicated in this report. These Rules should perhaps
still be refined once a few years have elapsed and we have seen
how the procedure introduced by Protocol No. 14 has functioned in
practice.
40. However, as indicated in this report, there remain issues
and concerns that must be highlighted. The first unresolved issue
is that the institution of ad hoc judges still lacks the full democratic
legitimacy achieved through election by the Assembly, in contrast
to regular judges. The question remains: How, if at all, will the Assembly,
or even the Assembly's national delegation of the respondent state,
be involved in the procedure of selecting an ad hoc judge (or candidates
for ad hoc judges)? As explained above, it is unclear how the President
of the Court is expected to fulfil this responsibility, particularly
without the effective implementation of objective and transparent
criteria based on proper professional qualifications. Ad hoc judges
may therefore not have the requisite skills and abilities to fulfil
their tasks, and even when they do, the lack of transparency surrounding
the procedure may give rise to doubts.
41. The second unresolved issue is the question of how the candidates
for ad hoc judge are nominated by the state. The Assembly – and
indeed, member states themselves, through the work of the Committee
of Experts for the Improvement of Procedures for the Protection
of Human Rights (DH-PR) and the Steering Committee for Human Rights
(CDDH) (perhaps resulting in a Committee of Ministers recommendation?)
– ought to insist on transparent appointment procedures, inspired
by requirements for states with respect to candidates put forward
for election, as already stressed by the Assembly in its
Recommendation 1429 (1999).
These procedures
should be equally applicable to candidatures of both regular and
ad hoc judges. In particular, states parties should be required
to use a model curriculum vitae, and, like those of elected judges,
these should all be available to the public on the Court’s website.
There is no reason why ad hoc judges should be assessed any differently
from elected judges, given that they enjoy the same privileges and immunities,
as decided by the Committee of Ministers.
42. The third unresolved issue is the matter of the delays posed
by the appointment of ad hoc judges, which can range from a few
months to one or two years. This is first attributable to the fact
that a state may not have provided a list of ad hoc judges and may
be caught by surprise by the withdrawal, sickness or resignation
or even the death of an elected judge. Alternatively, delays could
be imposed by one of the parties rejecting one or more judges, as
occurred several times in the case of
Cyprus
v. Turkey. Finally, once the ad hoc judge has
been appointed, it may take considerable time before he or she is
free to attend court and/or before he or she can read all the background
documents relating to the case.
43. To resolve these issues, a number of measures can be taken.
First, to the extent possible, states should be encouraged to appoint
ad hoc judges from the Court’s existing bench.
The
advantages of this solution are threefold. First, the sitting judge
has been elected by the Assembly, not appointed by a state, which
means he or she is vested with the complete democratic legitimacy
of a regular judge. Second, his or her qualifications have been
assessed by the Assembly in a fair and relatively transparent manner.
Third, he or she is fully operational at once, which ensures the
expeditious examination of cases.
There are two alternatives to the appointment
of elected judges: the appointment of candidates who have been interviewed
by the Sub-Committee on the Election of Judges and who were considered
well qualified though not elected;
and
the appointment of former judges. The first of these options is
not necessarily a good idea, in my view, unless it can be shown
that they had been short-listed by means of a rigorous, fair and
transparent national selection procedure. However, given the absence
of an age limit for ad hoc judges, the advantage of appointing a
former judge is clear: they are known to possess the requisite qualifications
and experience, have already been elected by the Assembly and can
be operational at once because of their familiarity with the Court
system.
44. Second, the circumstances giving rise to the appointment of
ad hoc judges should be reconsidered and perhaps readjusted. For
instance, it is arguable whether an ad hoc judge adds any value
in proceedings where established case law exists or in repetitive
cases, given the likelihood of the outcome. This begs the question of
whether their appointment justifies compromising the appearance
of independence of the Court. Whilst the argument that ad hoc judges
are needed to explain matters of national legal practice is often
raised, this knowledge may be found within the Court itself;
likewise, the lawyers involved
in litigating a case before the Court can provide an added guarantee
in this respect. Moreover, Committee proceedings dealing with the merits
of a case under the Convention do not cater for an ad hoc judge,
nor
is the right to appoint an ad hoc judge provided for in the single-judge
formation.
In any case, it should be noted that
Protocol No. 14 reserves the discretionary power of the committee
of three judges to request the national judge to be present in such
cases.
45. Given the current backlog of the Court, the states parties
should be encouraged to choose one of the regular judges as ad hoc
judge in repetitive cases, cases of straightforward applications
of existing case law or friendly settlements.
The
staff members of the Registry of the Court should be able to provide
specialised knowledge of national practice and case law or help
to resolve any language issues. However, regardless of whether the
states parties choose to place elected judges on their lists of
ad hoc judges, those who have not yet done so should be strongly
encouraged to submit a list to the Court to prevent delays when
the need to appoint an ad hoc judge becomes apparent.
46. Finally, as already alluded to in paragraph 40 above, the
establishment of appropriate national selection procedures merits
further reflection. Recommendations for the national selection of
candidates for regular judges to the Court should,
mutatis mutandis, be applied for
ad hoc judges, to ensure that the authority and credibility of the
European Court of Human Rights are not put at risk by ad hoc and
politicised processes in the nomination of candidates.
47. At this stage, it may be premature to make specific recommendations
on how the system could be improved. The Court itself can probably
make adjustments in its Rules, when appropriate. Protocol No. 14
and the amended Rules of Court have been in force for a relatively
short period of time, and few ad hoc judges have been appointed
under the new procedure. It may also be useful to reflect upon the
idea of involving in the nomination procedure the newly created
advisory panel of experts that provides advice to states as to whether candidates
for election by the Assembly meet the criteria stipulated in Article
21, paragraph 1, of the Convention (see paragraph 25 above). What
is certain is that further consideration of these issues by the Assembly
is called for, in order to evaluate how the new system is functioning.
Appendix 1
(open)
Relevant extract from the European Convention
on Human Rights (as amended by Protocol No. 14)
“Article
26 – Single-judge formation, committees, Chambers and Grand Chamber
1. To consider cases brought
before it, the Court shall sit in a single-judge formation, in committees
of three judges, in Chambers of seven judges and in a Grand Chamber
of seventeen judges. The Court’s Chambers shall set up committees
for a fixed period of time.
2. At the request of the plenary
Court, the Committee of Ministers may, by a unanimous decision and
for a fixed period, reduce to five the number of judges of the Chambers.
3. When sitting as a single
judge, a judge shall not examine any application against the High
Contracting Party in respect of which that judge has been elected.
4. There shall sit as an ex
officio member of the Chamber and the Grand Chamber the judge elected
in respect of the High Contracting Party concerned. If there is
none or if that judge is unable to sit, a person chosen by the President
of the Court from a list submitted in advance by that Party shall
sit in the capacity of judge.
5. The Grand Chamber shall
also include the President of the Court, the Vice-Presidents, the
Presidents of the Chambers and other judges chosen in accordance
with the rules of the Court. When a case is referred to the Grand
Chamber under Article 43, no judge from the Chamber which rendered
the judgment shall sit in the Grand Chamber, with the exception
of the President of the Chamber and the judge who sat in respect
of the High Contracting Party concerned.”
Relevant extract from the Explanatory
Report to Protocol No. 14 to the Convention
“Article
6 of the amending Protocol
Article 26 – Single-judge formation,
committees, Chambers and Grand Chamber
…
64. Finally, paragraph 2 of
former Article 27 has been amended to make provision for a new system
of appointment of ad hoc judges. Under the new rule, contained in
paragraph 4 of the new Article 26, each High Contracting Party is
required to draw up a reserve list of ad hoc judges from which the
President of the Court shall choose someone when the need arises
to appoint an ad hoc judge. This new system is a response to criticism
of the old system, which allowed a High Contracting Party to choose
an ad hoc judge after the beginning of proceedings. Concerns about
this had also been expressed by the Parliamentary Assembly. It is
understood that the list of potential ad hoc judges may include
names of judges elected in respect of other High Contracting Parties.
More detailed rules on the implementation of this new system may
be included in the Rules of Court.”
Appendix 2
(open)
Relevant extract from the Rules of Court
Rule
29
(Ad hoc judges)
1. (a) If the judge elected
in respect of a Contracting Party concerned is unable to sit in
the Chamber, withdraws, or is exempted, or if there is none, and
unless that Contracting Party has opted to appoint an ad hoc judge
in accordance with the provisions of paragraph 1 (b) of this Rule,
the President of the Chamber shall invite it to indicate within
thirty days the name of the person it wishes to appoint from among
the other elected judges.
(b) Where a Contracting Party
has opted to appoint an ad hoc judge, the President of the Chamber
shall choose the judge from a list submitted in advance by the Contracting
Party containing the names of three to five persons whom the Contracting
Party has designated as eligible to serve as ad hoc judges for a renewable
period of two years and as satisfying the conditions set out in
paragraph 1 (d) of this Rule. The list shall include both sexes
and shall be accompanied by biographical details of the persons
whose names appear on the list. The persons whose names appear on
the list may not represent a party or a third party in any capacity
in proceedings before the Court. For the purposes of the application
of Article 26 § 4 of the Convention and the first sentence above,
the names of the other elected judges shall, ipso jure, be considered
to be included on the list.
(c) The procedure set out in
paragraph 1 (a) and (b) of this Rule shall apply if the person so
appointed is unable to sit or withdraws.
(d) An ad hoc judge shall possess
the qualifications required by Article 21 § 1 of the Convention,
must not be unable to sit in the case on any of the grounds referred
to in Rule 28, and must be in a position to meet the demands
of availability and attendance provided for in paragraph 5 of this
Rule. For the duration of their appointment, an ad hoc judge shall
not represent any party or third party in any capacity in proceedings
before the Court.
2. The Contracting Party concerned
shall be presumed to have waived its right of appointment
(a) if it does not reply within
the thirty-day period set out in paragraph 1 (a) or by the end of
any extension of that time granted by the President of the Chamber;
(b) if it opts to appoint an
ad hoc judge but, at the time of notice given of the application
to the respondent Government under Rule 54 § 2, the Party
had not supplied the Registrar with a list as described in paragraph
1 (b) of this Rule or where the Chamber finds that less than three
of the persons indicated in the list satisfy the conditions laid
down in paragraph 1 (d) of this Rule.
3. The President of the Chamber
may decide not to invite the Contracting Party concerned to make
an appointment under paragraph 1 (a) of this Rule until notice of
the application is given to it under Rule 54 § 2. In that event,
pending any appointment by it, the Contracting Party concerned shall
be deemed to have appointed the first substitute judge to sit in
place of the elected judge.
4. An ad hoc judge shall, at
the beginning of the first sitting held to consider the case after
the judge has been appointed, take the oath or make the solemn declaration
provided for in Rule 3. This act shall be recorded in minutes.
5. Ad hoc judges are required
to make themselves available to the Court and, subject to Rule 26
§ 2, to attend the meetings of the Chamber.
Appendix 3
(open)
List of ad hoc judges
Albania
Ján ŠIKUTA
Xhezair ZAGANJORI
Altina XHOXHAJ
Andorra
Isabelle BERRO-LEFEVRE
Kristina PARDALOS
Armenia
No list submitted
Austria
Gerhard BAUMGARTNER
Barbara LEITL-STAUDINGER
Katharina PABEL
Ewald WIEDERIN
Mia WITTMANN-TIWALD
Azerbaijan
Latif HÜSEYNOV
Rovshan ISMAYILOV
Jeyhun GARAJAYEV
Belgium
André ALEN
Paul LEMMENS
Pierre VANDERNOOT
Eva BREMS
Bosnia and Herzegovina
Genc TRNAVCI
Faris VEHABOVIC
Dragomir VUKOJE
Bulgaria
Pavlina PANOVA
Ekaterina SALKOVA
Maiia ROUSSEVA
Croatia
No list submitted
Cyprus
Effie PAPADOPOULOU
George EROTOCRITOU
Stelios NATHANAEL
Costas PAMBALLIS
Costas CLERIDES
Czech Republic
Mahulena HOFMANNOVÁ
Zdeněk KÜHN
Pavel SIMON
Pavel ŠTURMA
Denmark
No list submitted
Estonia
Pavel GONTSAROV
Oliver KASK
Julia LAFFRANQUE (born VAHING)
Priit PIKAMÄE
Finland
Gustav BYGGLIN
Petri JÄÄSKELÄINEN
Anne E. NIEMI
Johanna NIEMI
Mikko PUUMALAINEN
France
Jean-Marie DELARUE
Régis de GOUTTES
Gilbert GUILLAUME
Cécile PETIT
Georgia
Konstantine VARDZELASHVILI
Irakli ADEISHVILI
Lali PAPIASHVILI
Germany
Rhona FETZER
Angela RAPP
Christiane SCHMALTZ
Bertram SCHMITT
Andreas ZIMMERMANN
Greece
Michaïl VRONTAKIS
Paraskevi NASKOU-PERRAKI
Stelios PERRAKIS
Hungary
No list submitted
Iceland
Hjördis HAKONARDOTTIR
Ragnhildur HELGADOTTIR
Skuli MAGNUSSON
Ireland
Mary Finlay GEOGHEGAN
Peter KELLY
Mary LAFFOY
John MAC MENAMIN
Italy
Ida CARACCIOLO
Andreana ESPOSITO
Carmela PANELLA
Claudio ZANGHI
Nicola LETTIERI
Latvia
No list submitted
Liechtenstein
No list submitted
Lithuania
No list submitted
Luxembourg
Françoise TULKENS
Giorgio MALINVERNI
Egbert MYJER
Malta
Joseph FILETTI
Geoffrey VALENZIA
David SCICLUNA
Abigail LOFARO
Anna FELICE
Moldova
Igor DOLEA
Xenofon ULIANOVSCHI
Tatiana RĂDUCANU
Monaco
No list submitted
Montenegro
No list submitted
Netherlands
Evert ALKEMA
Pieter VAN DIJK
Wilhelmina THOMASSEN
Norway
Inge Lorange BACKER
Anne GRØSTAD
Dag Bugge NORDÉN
Poland
Katarzyna GONERA
Elzbieta KARSKA
Andrzej SWIATKOWSKI
Roman WIERUSZEWSKI
Pawel WILINSKI
Portugal
Alberto Augusto Andrade de Oliveira
Fernanda Martins Xavier e Nunes
Carlos Manuel Rodrigues de Almeida
Maria de Fatima Mata-Mouros de Aragao Soares Homem
Romania
Valerian CIOCLEI
Mihai POALELUNGI
Josep CASADEVALL
Russia
Andrei Yurievich BUSHEV
Olga Alexandrovna FEDOROVA
Alexei Alexandrovich KOSTIN
San Marino
Guido CASALI
Josep CASADEVALL
Nina VAJIC
Serbia
No list submitted
Slovak Republic
No list submitted
Slovenia
Arne Marjan MAVČIČ
Miodrag ĐORĐEVIĆ
Boštjan ZALAR
Spain
José Alejandro SAIZ ARNAIZ
Paz ANDRÉS SAENZ DE SANTAMARIA
Luis AGUIAR DE LUQUE
Sweden
Iain CAMERON
Johan HIRSCHFELDT
Anne RAMBERG
Krister THELIN
Switzerland
Giusep NAY
Elisabeth STEINER
Daniel THÜRER
Marc E. VILLIGER
“The former Yugoslav Republic of Macedonia”
No list submitted
Turkey
Turgut TARHANLI
Gönül ERÖNEN
Levent KÖKER
Mehmet TURHAN
Serap YAZICI
Ukraine
Mykhaylo BUROMENSKIY
Myroslava ANTONOVYCH
Sergiy Vladlenovych GONCHARENKO
United Kingdom
Stephen SEDLEY
Mary Howarth ARDEN
Robert John REED
Frederick Paul GIRVAN
John Anthony DYSON