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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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26 DH-SYSC-I (2017)010 advisor of Governments in an early stage of the proceedings (in which a list has not been officially submitted to the Parliamentary Assembly), which would seem to imply keeping the current confidentiality rules” (see CDDH(2013)R79 Addendum II, § 59). 64. An additional question that needs to be considered is the actual impact of the Estonian proposal on the duration of the whole process, if the candidates are deemed unfit by the PACE/Panel. This situation would require the rejection of the list and the repetition of the entire national process. 65. As regards the means allocated to the Advisory Panel, the DH-SYSC has agreed that the Panel should be allocated the resources necessary to achieve its task. This question depends upon the conclusions that will be taken on the role of the Panel as discussed above (see § 49 regarding its budgetary situation in light of its Second Activity Report). D. The interpretation of the criteria Challenges 66. Certain elements regarding the interpretation of the criteria of Article 21 have been compiled in the Committee of Ministers’ Guidelines on the selection of candidates for the post of judge at the European Court of Human Rights taking into account the practice developed by the Parliamentary Assembly. Since then, all actors concerned have developed their interpretation, not least the Advisory Panel (see above § 40 and Appendix II to the present document). 67. As regards the interpretation of the criteria, the DH-SYSC considered that the Guidelines should be the text of reference for all actors in the process with a view to their application, while respecting the diversities of national systems. The risk of diverging interpretations of the criteria by the different actors of the process has been raised. The Committee considered that it would be useful that the Secretariat obtains more elements concerning notably the substance of the complementary information solicited by the Panel to the member States. The contribution received by the Secretariat of the Advisory Panel demonstrates that the additional questions asked by the Panel concern the verification of factual elements mainly related to the professional experience of the candidate. 48 It is also noted that as far as additional, unsolicited sources of information received by the Panel are concerned, they have never constituted the basis of rejection of a candidate but only means for further verification. The Panel’s final assessment of a candidate’s suitability is only based on material supplied by the Government concerned. 49 48 See doc. DH-SYSC-I (2017)009, p. 12 and 13. 49 See the Second activity report of the Advisory Panel, 25 February 2016, doc. Advisory Panel (2016)1, § 26.

27 DH-SYSC-I (2017)010 Possible responses within the framework of the existing structures 68. While the DH-SYSC had emphasized that the Guidelines should be the text of reference for all actors concerned, it appears that a further examination of the necessity for a codification of the interpretation of the criteria with a view to securing, as far as possible, their homogenous interpretation and application by all actors concerned in the selection and election process, deserves to be conducted. The following arguments seem to call for such an approach: - It is argued by the actors concerned that certain criteria are complex to interpret: 50 while certain criteria are objectively measurable, despite inevitable variations in the designation/election processes of judges, certain others, such as “the second part of paragraph 1 (“jurisconsults of recognised competence”) represents an amorphous category in need of further objective guidelines”. 51 The same applies to other criteria that are nuanced, such as the determination as to whether a person is of “high moral character”. The difficulty to measure the latter has already been discussed by the Drafting Group; - A non-homogenous interpretation of the criteria by all actors concerned may create the perception of a lack of transparency and misunderstandings both for the member States and the candidates. This could address certain concerns put forward by Estonia (see § 59 above and footnote 47); - Such a codification with a possible up-date of good practices could also facilitate the work of the States Parties in the selection process (see the table prepared by the Secretariat in Appendix I to this document); - The question of the codification of the interpretation of the criteria could also be necessary in view of the decisions to be taken regarding the formalization of the importance of certain requirements regarding the candidates (see above, § 40). 69. Possible follow-up work could lead to a revision of the explanatory memorandum of the 2012 Guidelines. It could serve as a roadmap, facilitating, to the extent possible, a homogenous interpretation and application of the criteria. The work of the EU Panel may also be considered to this effect. 52 The latter takes for instance into consideration the aptitude of applicants to work in an international environment. 50 See exchange of views with Mr Wojciech Sawicki, doc. DH-SYSC-I (2016)008, § 5; see also the Second activity report of the Advisory Panel referred to in footnote 49. 51 Andrew Drzemczewski, former Head of the Legal Affairs and Human Rights Department of PACE, “The Parliamentary Assembly’s Committee on the Election of Judges to the European Court of Human Rights”, HRLJ, Vol. 35, No. 1–8, 2015, pp. 269–274, sp. 271–272. 52 First report of 17 February 2011; second activity report of 22 January 2013 and third report of 13 December 2013. All three reports are available on line: http://curia.europa.eu. The first and second reports are published at 33 HRLJ, pp.459–464 and pp. 465–470(2013); the third activity report is published at 34 HRLJ, pp. 197–203 (2014).

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