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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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22 DH-SYSC-I (2017)010 (ii) The Committee would like to explore the possibility for the Panel to interview candidates if this is deemed necessary. It has been however argued that it would multiply the amount of interviews held and thereby prolong the selection process of candidates. 51. The present document examines the role(s) of the Panel in light of this guidance, taking into account the two contributions received by Belgium and Estonia, dealing specifically with this role. Three responses can thus be designed for the Panel. It appears that none of them would require an amendment to the Convention but to Resolution CM/Res(2010)26, as amended in 2014, as well as to the Assembly’s Rules of Procedure. The specific issue of the questions asked by the Panel to Governments is addressed under D. below. Responses within the framework of the existing structures: enhancement of the current procedure of the Advisory Panel 52. During the discussion at the DH-SYSC, certain experts confirmed the conclusions reached by the CDDH in 2013 (see § 47 above), namely that that the existence of the Advisory Panel has had a positive impact on the improvement of the national selection procedure. The idea of a participation of the Panel in the national selection interview was rejected during the discussion in the DH-SYSC. It was however argued that it could be useful to explore a more enhanced interaction between the Government and the Panel before reaching the final decision. It could also be useful to receive more information as to the transparency of the procedure vis a vis the candidate. 53. As regards the possibility to hold interviews by the Advisory Panel, it appears a priori that this could add an additional discouraging factor for candidates and could be counterbalanced by its participation in the Assembly Procedure (see option b) below). As noted by the Drafting Group at its 2 nd meeting, the possibility for the Panel to interview candidates in exceptional circumstances could be considered as discriminatory towards other potential candidates, or as going against the principle of respecting the confidentiality of the process. It has also been argued that it would multiply the amount of interviews held and thereby prolong the selection process of candidates. 54. A last but crucial question is that of Governments not submitting the list to the Panel before its submission to the Assembly. Recent incidents have been brought to the DH-SYSC attention whereby the lists were submitted to both instances almost simultaneously or by completely circumventing the Advisory Panel. Those lists were rejected by the Assembly. The above suggests that there is a need, shared by the Drafting Group as well as by some experts in the DH-SYSC, to render the consultation of the Panel an integral part of the selection process by national authorities before the transmission of the list to the Parliamentary Assembly. This could be achieved by a revision of Guideline VI.1. of the Guidelines that reads as follows: “the High Contacting Parties should submit their list of candidates to the Parliamentary Assembly after having obtained the Advisory Panel’s opinion on the candidates’ suitability to fulfill the requirements under the Convention”. The amendment could indicate that without the

23 DH-SYSC-I (2017)010 consultation of the Panel, the list would be automatically rejected. On the other hand, given that the question lies within the Assembly’s competence, another option could be that the latter consider revising its Rules of Procedure to this effect. Possible responses outside the existing structures a) The creation of an additional function: an advisory role to the Assembly 55. The communication with the Assembly is regulated by CM/Resolution (2010)26 which provides that “when a list of three candidates nominated by a High Contracting Party is being considered in accordance with Article 22 of the European Convention on Human Rights, the Panel shall make available to the Parliamentary Assembly in writing its views as to whether the candidates meet the criteria stipulated in Article 21§1 of the Convention. Such information shall be confidential.” From the data available in the second activity report of the Panel, it is noted that, despite the negative views of the Panel in six cases, the candidates were maintained on the list. The PACE rejected only one of those lists and accepted all others. In two cases, candidates who in the Panel’s view, did not fulfil the criteria of Article 21§1 of the Convention were recommended by the Committee on the Election of Judges. 56. The merits of the cooperation between both instances is shared by the President of the Advisory Panel as well as by the Secretary General of the Assembly. 44 During the discussions in the DH-SYSC, it appeared that there was a general consensus for an enhanced interaction between both of them. The possibility for the Advisory Panel to explain its views on the candidates to the PACE Committee on Election of Judges would in fact add an oral component to the existing arrangements and could contribute to a more informed opinion by the Committee of Election, in keeping with the confidentiality principle. 45 What needs to be defined is who (a representative of the Panel? all its members?) and when (before the hearing? in the deliberation process?) could this take place. In addition, should this oral report be supplemented by a more thorough written one? As agreed upon by the DH-SYSC, “it would also be important that the eventual strengthening of the motivation of the Panel’s decisions be explored in order to facilitate the work of the Committee on the Election of Judges, with respect to confidentiality, in order not to harm the reputation of candidates.” 57. In this regard, an additional element could be considered, namely the possibility for the Committee to hear also the views of the State as well as of the Court on its needs. 58. A more developed interaction between the two instances was presented in the contribution by Belgium. The proposal suggests that the members of the Panel are present in the hearing of the candidates without the right to intervene and to vote. This 44 See the intervention by Mr John Murray at the 1233 rd meeting of the Minister’s Deputies, 8 July 2015, Appendix III of the Second activity report of the Advisory Panel; see § 10 of doc. DH-SYSC (2016)008. 45 During the exchange of views with the DH-SYSC-I, Mr Sawicki noted that “there is nothing in the existing guidelines of the Election Committee allowing it to invite people of its choice for interviews but theoretically speaking this could be changed”, see doc. DH-SYSC-I (2016)008, § 10.

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