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

32 DH-SYSC-I (2017)010
In addition to the measures required to respond to the challenges of the selection
procedure, there would be a need to examine certain measures aimed at further
strengthening the procedure before PACE, from the submission of the list to the election.
It appears that the Committee on the Election of Judges is examining its procedure at
present. The reflections below could feed into this work. They are based on information
gathered during the exchange of views with the Secretary General of the Assembly and
on subsequent discussions held within the Plenary Committees.
82. The below considerations concern aspects such as the composition of the
Committee of Judges, the conduct of its interviews, the nature of the recommendations
given to the Plenary and the voting procedure and the Plenary’s role. It appears that if the
Assembly wishes to make certain changes in its procedure, this could be made in the
framework of the existing structures, namely the Assembly’s Rules of Procedure.
The procedure before the Committee on the Election of Judges
83. In general, all questions regarding the procedure within the Committee are crucial
given that the main safeguards of the entire appointment procedure lie within the
procedure in that Committee. As far as the composition of the Committee on the Election
of Judges is concerned, certain experts raised questions as to its limited composition,
which is explained in § 72. As explained by the Secretary General of the Assembly, the
choice was made to have a smaller specialised committee with members having legal
background or experience nominated by political groups 65 instead of a larger committee
allowing for an equitable geographical distribution. These underlying reasons are indeed
crucial. However, is this limited number sufficient, in particular in the eyes of the
candidates and of their perception of the democratic legitimacy of the process?
Furthermore, certain experts in the DH-SYSC raised the question as to the
overrepresentation of certain nationalities in the Committee 66 and whether this was
justified by the argument of the legal expertise of the members.
84. As far as the interviews are concerned, three points have come out of the
discussions. The first question concerns the effective presence of members at the
meetings. 67 Even if domestic parliamentary duties are a matter of priority and justify the
Hon. Lord Justice Sedley, judge in the English Court of Appeal; and Professor Dr. Andrzej Zoll, former
President of the Constitutional High Court of Poland.
65 Among the other 8 Committees of PACE, only the members of the Monitoring Committee (they are 93
members including 8 ex officio members) and of the Committee on the Rules of Procedure, Immunities and
Institutional Affairs (they are 38 including 8 ex officio members) are appointed by the 5 political groups
according to the D’Hondt system.
66 E.g. two full members from Latvia, two from Greece, three from Ukraine.
67 According to the Assembly’s Rules (in particular Rule 47.3), a committee may deliberate when one-third
of its members are present. (As indicated in footnote 5 of this Rule, if it is not possible to divide the
number of members of a committee by 3, the quorum shall be calculated on the basis of the next lower
multiple of 3). However, if so requested by one-sixth of its members before voting begins on a draft
opinion, recommendation, or resolution as a whole, or on the election of the chairperson or vicechairpersons,
the vote may be taken only if a majority of committee’s members are present.