32 DH-SYSC-I (2017)010 In addition to the measures required to respond to the challenges ofthe selection procedure, there would be a need to examine certain measures aimed at further strengthening the procedure before PACE, from the submission ofthe 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 ofviews with the Secretary General ofthe Assembly and on subsequent discussions held withinthe Plenary Committees. 82. The below considerations concern aspects such as the composition ofthe Committee of Judges, the conduct of its interviews, the nature ofthe 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 inthe framework ofthe 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 withinthe Committee are crucial given that the main safeguards ofthe entire appointment procedure lie withinthe procedure in that Committee. As far as the composition ofthe 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 ofthe 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 inthe eyes ofthe candidates and oftheir perception ofthe democratic legitimacy ofthe process? Furthermore, certain experts intheDH-SYSC raised the question as to the overrepresentation of certain nationalities inthe Committee 66 and whether this was justified by the argument ofthe legal expertise ofthe members. 84. As far as theinterviews are concerned, three points have come out ofthe 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 inthe English Court of Appeal; and Professor Dr. Andrzej Zoll, former President ofthe Constitutional High Court of Poland. 65 Among the other 8 Committees of PACE, only the members ofthe Monitoring Committee (they are 93 members including 8 ex officio members) and ofthe 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 ofthe 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 ofthe 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 ofthe importance ofthe questions examined by this Committee. 68 85. The second question concerns the duration oftheinterviews. In light ofthe contributions received following the “open call”, but also inthe discussion withinthe Plenary Committee, the 30-minute interview does not appear to be sufficient in light ofthe importance ofthe post as well as ofthe perception ofthe seriousness ofthe nomination process. These concerns merit consideration, even if the prolongation oftheinterviews would require taking into account practical, logistical and budgetary elements (overnights stays, cost ofinterpretation, etc.). The third question concerns the conduct oftheinterviews. During the exchange ofviews with the Secretary General ofthe Assembly, the necessity for standardized rules for theinterview was discussed. It was indicated that it was not certain whether the Election Committee members would agree on that. As noted by a member ofthe 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 ofthe Committee’s guidelines for these meetings. 69 86. Finally, as regards the outcome ofthe 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 ofthe 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 ofthe criticism against the appointment procedure, often characterised by lobbying. Even if the recommendation ofthe 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 ofthe Committee on the election of judges 20 times. So far in 2017, the PACE followed none ofthe Committee’s recommendations in any ofthe 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