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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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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.

33 DH-SYSC-I (2017)010 absence of certain members, there might be room to consider how to ensure a full participation in light of the importance of the questions examined by this Committee. 68 85. The second question concerns the duration of the interviews. In light of the contributions received following the “open call”, but also in the discussion within the Plenary Committee, the 30-minute interview does not appear to be sufficient in light of the importance of the post as well as of the perception of the seriousness of the nomination process. These concerns merit consideration, even if the prolongation of the interviews would require taking into account practical, logistical and budgetary elements (overnights stays, cost of interpretation, etc.). The third question concerns the conduct of the interviews. During the exchange of views with the Secretary General of the Assembly, the necessity for standardized rules for the interview was discussed. It was indicated that it was not certain whether the Election Committee members would agree on that. As noted by a member of the Drafting Group, the candidates are interviewed for this very important function and should be able to deal with the uncertainties and difficulties of this interview; they will be confronted to situations that are at least as difficult when they will be serving the Court. Against this background and with a view to ensuring an increased transparency, what could be considered is the publication of the Committee’s guidelines for these meetings. 69 86. Finally, as regards the outcome of the procedure before the Committee, an additional question that needs to be addressed is the situation where the Committee of Election of Judges finds that one candidate is not suitable for election but does not wish to reject the list in its entirety. Would it be possible to present to the Plenary a list with less than three candidates? Here again, the possibility that the Drafting Group seeks the advice of the Directorate of Legal Advice and Public International Law as to the specific modalities where this could exceptionally be made possible as well as on the impact on the current procedure could be considered (see also above, § 45). The procedure before the Plenary 87. The election by the Plenary would deserve a careful consideration as it is at the heart of the criticism against the appointment procedure, often characterised by lobbying. Even if the recommendation of the Election Committee (and previously the Sub- Committee) is often respected by the Plenary, 70 it could be useful to consider the need for 68 The presence from 2015 until January 2017 was as follows : 24 January 2017 – 15 members; 12 January 2017 – 13 members; 6 October 2016 – 12 members; 19 June 2016 – 14 members; 17 April 2016 – 13 members; 12 January 2016 – 8 members; 17 September 2015 – 11 members; 9-10 June 2015 – 13 titular members and 6 alternate members; 30-31 March 2015, 16 members and 6 alternate. 69 See doc. DH-SYSC-I (2016)008, § 7: “the Committee is guided by the rules of PACE and by its own guidelines”. 70 Out of 23 elections in 2013-2017, the PACE followed the recommendations of the Committee on the election of judges 20 times. So far in 2017, the PACE followed none of the Committee’s recommendations in any of the two elections that have taken place. The PACE elected a judge despite the Committee having recommended another candidate on the list by a large majority, and another judge despite the Committee having recommended another candidate by a majority. In 2016, the PACE followed the Committee’s recommendation in 4 out of 5 elections. It elected a judge despite the Committee having recommended