1 year ago

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



24 DH-SYSC-I (2017)010 would allow the Panel to confirm or not its initial views through its presence in the interview and also to enlighten the members of the Committee on the Election of Judges. It would also allow the combination of the political element with the expert one, thus reinforcing the motivation of both instances. Beyond the budgetary constraints of this proposal, the impact on the candidates could be considered, namely whether, despite the absence of the right to vote, the presence of the Panel could give the perception of an instance judging twice. b) The replacement of the existing function: integration into the Assembly’s procedure (advisory role or full integration) 46 59. The proposal made by Estonia is based on the following challenges that it has identified: (i) the member States and the PACE do not always observe the opinions of the Panel and, in some cases, the member States have even decided to bypass the Panel altogether by not sending its lists to the Panel for consideration before presenting them to the PACE; 47 (ii) the current system has created a kind of competition dynamic between the different bodies of selection/election procedure with a risk of creating confusion and distrust among the public as well as among the candidates to the Court. The divergence of opinions concerning a judge potentially contributes to the undermining of the authority of the Court; (iii) the difficulty to assess candidates properly without a possibility to conduct interviews; (iv) the legitimacy concern. Given the impact the Panel has on the selection procedure, including its interpretation of the selection criteria, the fact that its work is not transparent and that the Convention itself does not mention the Panel, gives rise to questions of legitimacy and accountability. It remains unclear according to which rules the Panel communicates with the States, or third parties, to gather information about a particular candidate; (v) the Panel’s participation makes the selection/election procedure even longer than it already is. One of the recurrent themes of the discouraging factors for the candidates has been the length of the selection/election proceedings. 60. Estonia thus suggested to integrate the Panel, i.e. the members of the Panel, into the procedure before the Assembly. The Panel’s integration into the Assembly Committee would mean that the Panel’s mandate is no longer giving prior advice to the member states but either giving advice to the Committee (the Panel retains its advice giving function) or that the members of the Panel act on equal basis with the members of 46 The former Registrar of the Court had envisaged such an integration. It is not clear to which of the two options (a) or b)) he referred: 46 “One idea could for instance be to integrate the members of the Advisory Panel of Judges into the procedure before the Parliamentary Assembly?” noted Erik Fribergh, the former Registrar of the Court in “The European Convention and Court of Human Rights: our shared treasures”, HRLJ, Vol. 35, No. 9–12, p. 313–318. 47 According to the proposal, the reasons are diverse: «They include misunderstandings and variance of opinions concerning the criteria set for the candidates by the Convention (e.g. the States worry that the Panel is setting standards for candidates that are not foreseen and that are oftentimes impossible to follow) and regarding the systems of academic ranks; the Panel’s involvement might sometimes interfere with the States’ political agendas; the Panel’s involvement is considered as interfering into domestic matters; in case the Panel is not accepting the candidates selected by the State, it discredits the authority of the national selection committee, etc.

25 DH-SYSC-I (2017)010 the Committee (full integration). According to the proposal, different options are possible for the integration and they should be considered carefully. 61. The possible benefits presented in the Estonian proposal can be summarised as follows: It would shorten the selection process. It would simplify the procedure and reduce the possible levels of conflict between the different bodies involved in the selection/election procedure. Instead of three different levels of decision-making bodies, there would be two – one at a national level and the other at an international level. The Panel’s contribution would become more effective and transparent since they could actively take part in interviewing the candidates and probing their qualifications and professional merit. Simultaneously, the PACE Committee would benefit from the expertise of the Panel members while conducting the interviews. The integration would potentially help to diminish the concerns regarding the procedure before the PACE being too politicised. The inclusion of expert members to the work of the PACE sub-committee would balance the risk of the Committee’s politically charged opinions. On the other hand, again, the members of the Committee would balance the impact of the experts’ role in interpreting the criteria and requirements as set for the candidates and judges by the Convention and respective guidelines. Integrating the Panel with the Committee might have the effect of disciplining the election process in the Assembly. Including expert members to the work of the Committee will make the latter’s opinion potentially more authoritative and harder to ignore for the PACE. This, again, might have the effect of reducing the election of politically suitable candidates. 62. The proposal and the underlying challenges need to be weighed against the advantages of the original role of the Advisory Panel, which are not affected but only supplemented under option a) in the form being presented in §56. Integrating the Panel, i.e. the members of the Panel into the procedures before the PACE would run counter the initial purpose of the Panel of giving confidential advice to States Parties, which, as highlighted by certain experts had an impact on the quality of the national selection process. This would mean that a system of “check and balances” would be completely missing in the national selection process before the submission of the list to PACE. In addition, other experts mentioned that a merger would have a discouraging impact on candidates or that it would be inappropriate to merge bodies that have different perspectives. 63. The original idea was that the Advisory Panel would most likely be more effective if the attention of governments was drawn confidentially to unqualified candidates, so that a government could change the list before it was officially submitted to the Parliamentary Assembly. It is recalled that in its 2013 report on the review of the functioning of the Advisory Panel, the CDDH was in favour of the approach according to which “the Advisory Panel is likely to be more effective if it remains the confidential

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