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

28 DH-SYSC-I (2017)010
II.
THE ELECTION PROCESS
A. The procedure
70. The travaux préparatoires of the adoption of the Convention indicate that the
issue of how the nominations procedure would be conducted was not even discussed. It
was originally envisaged that judges would be elected by a simple majority of the votes
cast in both the Parliamentary Assembly and the Committee of Ministers, with each body
voting independently. While subsequent drafts of the Convention suggested an absolute
majority of votes, they too envisaged that both organs would elect judges. With no
explanation, the draft that was ultimately adopted omitted reference to the Committee of
Ministers and consolidated the role in the Parliamentary Assembly. 53
71. The procedure has been developed over the years. 54 The Assembly’s latitude
(“certain autonomy”) when it comes to establishing the procedure for the election of
judges has been also acknowledged by the Court. 55 The creation of the new general
Committee on the Election of Judges of the European Court of Human Rights in January
2015 56 was considered an important step in the process. By transforming it into a fullfledged
committee and by attaching more visibility to the outcome of the committee’s
work, as the report on the candidates is now published before the election, the Assembly
gave a more prominent role to this body.
72. The procedure can be described as follows: 57
“The Assembly invites its Committee on the Election of Judges to the European Court of
Human Rights (AS/Cdh) to make recommendations based on personal interviews with all
the candidates and assessments of their curricula vitae. Upon receipt of these
53 Report presented by P.H. Teitgen to the Consultative Assembly of the Council of Europe (1949) in
Collected Edition of the “Travaux Préparatoires” of the European Convention on Human Rights, Martinus
Nijhoff, the Hague, 1977), Volume I, p. 210; Volume IV, p. 72.
54 See doc. Procedure for electing judges to the European Court of Human Rights – Information document
prepared by the Secretariat of the Parliamentary Assembly – Committee on the election of judges to the
Court, AS/CdH/(2017) 01 rev 2.
55 See Advisory opinion on certain legal questions concerning the list of candidates submitted with a view
to the election of judges at the European Court of Human Rights, Grand Chamber, 12 February 2008, § 45;
see Advisory opinion (No. 2) on certain legal questions concerning the list of candidates submitted with a
view to the election of judges at the European Court of Human Rights, Grand Chamber, 22 February 2010,
§ 39: “The third fundamental principle in this sphere is the balance and division of powers between the
High Contracting Parties and the Parliamentary Assembly under Article 22 of the Convention. By virtue of
that provision, each High Contracting Party must nominate candidates who each satisfy all the criteria laid
down in Article 21 § 1; the Assembly, meanwhile, has the task of electing a judge from among them. The
system thereby established seeks to ensure that the entities involved – the State concerned and the
Assembly – enjoy a certain autonomy, within the limits of their respective powers, allowing them to
determine how the procedural rules laid down in Article 22 are to be applied (see the first advisory opinion
[…] §§ 43-44).”
56 See Parliamentary Assembly Resolution (2002)2014.
57 The description of the procedure in §§ 72-78 is based on an Article by 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.