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

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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).