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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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18 DH-SYSC-I (2017)010 It is also the case that a judge who may not meet the criteria of Article 21(1) ECHR as someone qualified “for appointment to high judicial office”, may, because of a parallel academic career with important publications in relevant fields of law, meet the criteria of jurisconsult “of recognised competence”.” The requirement to present a list of three candidates Challenges 41. The difficulty to present a list of three candidates ofthe highest possible quality”, mainly as regards small member States, was noted during the first discussion of the DH-SYSC-I. The Plenary Committee decided that the question of the number of candidates deserved further examination not only in light of the abovementioned difficulty but in view of the examination of the system of selection and election as a whole. Possible responses outside the framework of the existing structures 42. The question of a one-candidate list was never discussed in the course of the current work. The discussion of the 3 rd meeting could consider the proposal by David Kosař 30 arguing that switching to one candidate would make the selection process easier. He noted that the responsibilities of the relevant players would be clearer and States could no longer blame PACE for not choosing the first best candidate. He also argued that switching to one candidate would put pressure on the nominating government to submit the best possible candidates and increase the chances that the top candidates would be willing to join the contest. In addition to the necessity to amend the Convention, this question needs to be considered not only in relation to the current system but also in relation to alternative models regarding the election procedure (see below § 90 onwards). As far as the current system of selection and election is concerned, it would be necessary to consider whether the above proposal constitutes or not an encouraging factor for candidates. Wouldn’t this option include or appear to include the risk of privileging the preferred governmental candidate? It could be recalled that, in the context of the current procedure, the Parliamentary Assembly attempted to respond to such risks through the introduction of the requirement of submission of lists in an alphabetical order, even if this is not always followed by the Gouvernement. 31 43. The introduction of the one-candidate model would change profoundly the role of PACE 32 and would also render the examination of the quality of the national selection 30 David Kosař, “Selecting Strasbourg Judges: A Critique” in Electing Europe’s Judges, A Critical Review of the Appointment Procedures to the European Courts, ed. Michal Bobek, Oxford University Press, 2015, p.160. 31 Parliamentary Assembly Recommendations 1429 (1999) and 1649 (2004) and the Appendix to Resolution 1432 (2005). 32 David Kosař, see footnote 30: “It would no longer have a real choice. It would become a veto gate”.

19 DH-SYSC-I (2017)010 procedure a crucial element of the process and a precondition of the decision to be taken on the candidate. 33 44. The two-candidate model was discussed for the first time during the DH-SYSC meeting. Certain experts noted that this model could overcome the difficulty to find three qualified candidates, raise the level of competition and allow the presentation of the most qualified ones. On the other hand, it was argued that the pluralistic element of the twocandidate model list would, in fact, be artificial in light of the gender requirement. The list would in fact be a list of two sexes, unless the possibility to derogate from this rule in the presence of exceptional circumstances would apply also in this instance. 45. The introduction of one of the above models would require an amendment of the Convention. It could be recalled that the current model of three candidates, had initially found support in the Drafting Group. 34 During the discussions, it was noted that the model constitutes a guarantee for the independence of the list. The discussion on the various models could also take into consideration the possibility without changing the Convention, to present a list < 3 when a member State advances exceptional circumstances rendering impossible to present three sufficiently qualified candidates (see also below under the election process). The possibility that the Drafting Group seeks the advice of the Directorate of Legal Advice and Public International Law on the modalities of this option and the necessity to amend the Convention could be considered. C. The role of the Advisory Panel in the selection and election process Challenges 46. On 10 November 2010, the Committee of Ministers adopted Resolution CM/Res(2010)26 on the establishment of an Advisory Panel of Experts on Candidates for Election as Judge to the European Court of Human Rights (‘the Advisory Panel”). 35 Referring to “the responsibility of the High Contracting Parties to the Convention to 33 See mutatis mutandis, the report by Christopher Chope (United-Kingdom, EKG): “Nomination of candidates and election of judges to the European Court of Human Rights”, Doc. 11767, 01 December 2008, § 28: “When the Sub-Committee on the Election of Judges interviews candidates, it does so in alphabetical order, without taking into account the reasons (if provided) for the order of preference. In my view, it may be useful for the Sub-Committee to take cognisance of the national preference, in particular if the national selection procedure has been open and fair, and if it has been carried out objectively by an independent body. Under these conditions, the Assembly’s task could become easier, as it might indeed be inclined to follow the proposal of the government concerned. To sum up, member states should be able, when submitting their lists of candidates to the Assembly, to indicate their preference and describe the national selection procedure followed; provided the Sub-Committee is satisfied that this procedure is fair and transparent, it should be able to take the national preference into account when formulating its recommendations”. 34 See report of the 2 nd meeting, doc. DH-SYSC (2016)R2, Appendix III, I. 3 iv). 35 The panel is composed of seven personalities. The current members are: Mr John Murray – Chairperson (Ireland); Ms Nina Vajic – Vice-chairperson (Croatia); Mr Matti Pellonpää (Finland); Mr Jean-Paul Costa (France);Mr Christoph Grabenwarter (Austria); Ms Lene Pagter Kristensen (Denmark); Ms Maria Gintowt-Jankowicz (Poland).

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