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Working document in view of the 3 DH-SYSC-I meeting

DH-SYSC-I(2017)010__EN

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14 DH-SYSC-I (2017)010 sufficient practical (judicial) experience in domestic legislation; as noted by the CDDH in its report and also highlighted in recent contributions following the “open call”. This requirement is closely linked to the possession of “qualification required for appointment to high judicial office” or to the qualification of “jurisconsult of recognized competence” in accordance with Article 21§1 of the Convention. It should also be highlighted that the CDDH, in its aforementioned report underlined the importance of an additional qualification, namely the “knowledge of general international law”, and concluded that it should be considered whether both requirements should be more clearly stipulated in the Convention. 26 40. It should thus be considered whether a possible formalization of the importance of both qualities would need to be made within the Convention or via a revision of the CM Guidelines. The qualities already appear in Guideline II. 4). Regarding the specific content of the first requirement, if it were formalized, the following should be taken into account by the Drafting Group: - the current Guidelines II. 2. and 4. read in conjunction with the explanation and good practice appearing in the explanatory memorandum: Candidates shall possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence. The requirement relating to the qualifications and competence of judges of the Court is contained in Article 21 of the Convention, which is binding on States as a matter of international treaty law. This implies that candidates must also possess these attributes. They must be professionally qualified and competent to exercise the office of judge at the Court. This may be reflected in requirements for specific qualifications or a certain length of experience, possibly fixed. Examples of good practice include the following: Applicants must have at least a Master’s degree in law and practical experience in legal affairs. They must fulfil the criteria for judges in Estonia as set out in art. 47 of the Court’s Act (Estonia). Applicants must show a high level of achievement and experience (Ireland). Candidates must meet the requirements for election to judge of either the Constitutional or the Supreme Court (Slovenia). Candidates must meet the requirements for appointment to higher national courts or be of equivalent professional standing (Poland, United Kingdom). 26 § 177.

15 DH-SYSC-I (2017)010 Candidates need to have knowledge of the national legal system(s) and of public international law. Practical legal experience is also desirable. The requirement relating to candidates’ legal knowledge derives from paragraph 8.a. of the Interlaken Declaration. Although this criterion does not supersede Article 21 of the Convention, a high level of knowledge in these fields should be taken as an implicit requirement for candidates for judge at the Court and relative levels of knowledge could be taken into account when choosing between applicants of otherwise equal merits. As the judges sit on an international court playing a subsidiary role in supervising national implementation of the Convention, it is important for them to have knowledge of both public international law and the national legal system(s). Although the Court’s composition benefits from a range of legal expertise, it is generally advantageous that applicants have expertise in human rights, notably the Convention and the Court’s case-law. Examples of good practice include the following: Applicants must have knowledge of public international law and of the national legal system (Albania). Applicants must possess a good knowledge of national law and a solid training and practical experience in the field of European human rights protection (Monaco). Applicants should in principle have judicial experience and a thorough knowledge of the Convention (the Netherlands). - the interpretation of the article 21§1 criterion by the Advisory Panel “The criteria provided for in Article 21(1) ECHR, although very general in its terms, fall to be understood and applied in the context of the Convention as a whole. The object and purpose of the Convention, as an instrument intended to guarantee rights which are practical and effective rather than theoretical and illusory, should accordingly be taken into account in its interpretation. The effectiveness of the Convention is influenced by the willingness of national authorities to follow the judgments of the Court. They would readily do so if the quality of the reasoning is high and if the reputation of the Court is beyond question. The process of establishing and maintaining the reputation of the Court is something which occurs over the long term and is, to a large extent, dependent on the quality and experience of the judges. The Court itself has emphasised the importance of the quality of judges for its own authority. 27 Having as judges at the Court persons who come from positions at a high level in the Member States obviously will have positive repercussions for the reputation of the Court. If it were to pass, for example, that a disproportionate number of judges were relatively young, lacking in extended experience and had not reached a prominent position in the national judicial system or in the academic world, then acceptance of the Court’s case law may be negatively influenced. In short, to fulfil the object and purpose of the Convention, a court should enjoy authority and respect with national judiciaries at the highest level and in member states generally. Apart from the importance of this for the standing and reputation of the Court as such, it also promotes a respectful dialogue between the Court and the highest national courts. This is important for the enforcement of Convention rights at national level in accordance with the jurisprudence of the Court which, in turn, would contribute to a reduction in the volume of cases coming before the Court. Although the Panel has continued to reflect and examine the criteria envisaged by Article 21(1) ECHR from different perspectives in the light of its actual experience in evaluating a large number of candidates over the last two years, the fundamentals of the criteria to be applied, as explained in the First Activity Report, remain essentially the same. In the broadest terms these include professional experience of long 27 See Advisory opinion on certain legal questions concerning the lists of candidates submitted with a view to the election of judges to the European Court of Human Rights (12 February 2008).

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