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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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20 DH-SYSC-I (2017)010 ensure a fair and transparent national selection procedure”, the Committee of Ministers stated its conviction that “the establishment of a Panel of Experts mandated to advise on the suitability of candidates that the member States intend to put forward for office as judges of the Court would constitute an adequate mechanism in this regard”. This underlines the fact that the principal role of the Advisory Panel is to provide advice to States Parties during the process of selection of candidates. According to the Resolution, the Advisory Panel’s mandate is confidentially to advise the States Parties whether candidates for election as judges to the Court meet the criteria stipulated in Article 21 of the Convention. 47. The CDDH’s 2013 report on the review of the functioning of the Advisory Panel notably addressed procedural questions, the interaction between the various stakeholders involved in the process, the reasons for the Panel’s opinions and the confidentiality of the process. There was a general agreement that the work of the Advisory Panel is a useful additional safeguard to guarantee that proposed candidates for the post of judge at the Court are of the highest standards. 36 The report was commented upon by the Court. 37 Following the submission of the report, the Committee of Ministers adopted Resolution CM/Res(2014)44 amending Resolution CM/Res(2010)26 to take account of some of the recommendations made by the CDDH. 38 It also amended the Guidelines, specifying that the High Contracting Parties should submit their list of candidates to the Parliamentary Assembly after having obtained the Advisory Panel’s opinion on the candidates’ suitability to fulfil the requirements under the Convention. 48. The Advisory Panel adopted its first activity report for the period 2010–2013 on 11 December 2013. 39 The second Activity Report for the period 2014–2015 of 25 February 2016 was made public on 24 June 2016. 40 49. From the practical experience deriving from the second activity report as well from the views brought forward in the context of the drafting of the CDDH report on the longer-term future of the Convention system, 41 it appears that the Panel is facing challenges regarding its role in the selection procedure. ‣ The opinions are not always followed: among the 17 lists examined by the Panel in 2014-2015, in six cases, the candidates were maintained in the list despite a negative opinion by the Panel; 36 Document CDDH(2013)R79, Addendum II, § 55. 37 Document DD(2014)513, 16/04/2014. 38 Explicit mention to the Committee of Ministers’ Guidelines on the selection of candidates for the post of judge at the European Court of Human Rights and recommendation to submit the lists of candidates to the Advisory Panel at least three months before the time-limit set by PACE for submission of the list of candidates, see §§ 38 and 48 of the CDDH report on the review of the functioning of the Advisory Panel. 39 Activity Report of the Advisory Panel of Experts on Candidates for Election as Judge to the Court (2010–2013), Document Advisory Panel (2013)12 EN; in line also with the CDDH comments on the perceived lack of visibility (§ 50 of the CDDH 2013 report). 40 2 nd Activity Report of the Advisory Panel of Experts on Candidates for Election as Judge to the Court (2014-2015), document Advisory Panel(2016)1. 41 Contribution by Mr Christoph Grabenwarter, doc. GT-GDR-F(2014)018, also reproduced in doc. DH- SYSC-I (2016)001, pp. 2–6.

21 DH-SYSC-I (2017)010 ‣ The difficulty to decide on borderline cases without an interview despite the possibility to ask for additional information. The Panel members recognised that while an exchange of information, as well as the transmission of opinions, may be, and is, carried out effectively in writing, a meaningful and fruitful exchange of views can, in certain circumstances, only take place during a meeting. This has been especially so in cases of complex matters, such as the criteria for the assessment of candidates’ qualifications, the relationship with the other stakeholders in the election procedure or the examination of lists of candidates which give rise to exceptional difficulties. The Panel has not and does not propose to organise meetings at regular intervals, but only if it is justified both in terms of the workload and the importance of the issues to be discussed. In most cases, the Panel members have reached their final views exclusively through written procedure. Occasionally, conference calls have been organised, for example, to discuss additional information provided by a government or the curricula vitae of a replacement candidate. 42 ‣ The lack of financial means for a proper functioning of the Panel; for the time being it does not have sufficient means in case regular meetings should be held. Budgetary appropriation for the Panel in the Council of Europe’s ordinary budget for 2014-2015 amounted to €18,400 per year. This amount roughly covered the costs of two meetings. The Directorate of Legal Advice and Public International Law provides secretariat services to the Panel in addition to its statutory functions and without any compensation. The unprecedented workload in 2014-2015 could only be dealt with effectively thanks to additional budgetary resources provided from the Court’s budget which allowed the short-term recruitment of a temporary lawyer. 43 50. The work of the Advisory Panel was discussed by the Drafting Group and the Plenary Committee. The DH-SYSC has not retained the proposal of making the opinion delivered by the Panel binding, deeming it would go against the advisory nature of the Panel. The DH-SYSC agreed upon the following: (i) As regards the Panel’s intervention, all avenues should be explored. Some experts were in favour of the position of the DH-SYSC-I for the reinforcement of the role of the Panel in selection processes at the national level, if need be, by means of revision of the Guidelines of the Committee of Ministers on the selection of candidates at national level in order to specify that the consultation of the Panel is an integral part of the selection process by national authorities before the transmission of the list to the Parliamentary Assembly. Other experts envisaged a different role for the Panel, which could (also) exercise its advisory function within the Parliamentary Assembly. The Committee considered that in the framework of the analysis to be carried out, all pros and cons of the above options for the entire process should be examined. 42 See the 2 nd Activity Report of the Advisory Panel, § 28. 43 See the 2 nd Activity Report of the Advisory Panel, § 32.

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