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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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40 DH-SYSC-I (2017)010 that do is 21. Additionally, among the 33 States that afford some sort of recognition of service in international courts for public servants, 28 allow the latter to return either to their previous or equivalent post in the national judiciary. Among the 33 States that afford some sort of recognition of service in international courts for public servants, 20 count the years of service in an international court for career advancement purposes. Among the 33 States that afford some sort of recognition of service in international courts for public servants, 19 count the time worked in international organisations as years of pensionable service. 107. Finally, 14 member States afford some sort of recognition of service in international courts for university professors. But for some of these States the legislation would not accommodate the 9-year term at the ECHR – the number of States that do is 10. Additionally, among the 31 States that afford some sort of recognition of service in international courts for university professors, 7 allow the latter to return either to their previous or equivalent post in the national judiciary. Among the 15 States that afford some sort of recognition of service in international courts for university professors, 6 count the years of service in an international court for career advancement purposes. Among the 14 States that afford some sort of recognition of service in international courts for university professors, 6 count the time worked in international organisations as years of pensionable service. 108. Pending additional information as well as the decisions and discussions of the Drafting Group, follow-up work could be considered in order to secure an appropriate response by member States to this matter. Such a response may also address the concerns regarding the nine-year term of office (see above §§ 35-37). Any follow-up to this question could take place within the existing structures; possibly leading to a CM recommendation. This work should take into account the diversity of legal, constitutional and political systems. In this regard, it is also recalled that in his abovementioned letter, the former President of the Court had noted: “the reintegration, or integration, of a former judge of this Court into the national judiciary is not the only solution that can be envisaged. The constraints surrounding senior appointments within the national judiciary must be borne in mind, of course. Therefore, other possibilities to take advantage of the valuable experience of former judges of the Court should be explored”. C. Working conditions at the Court: possible responses within the framework of the existing structures 109. The responses facilitating the swift integration of judges and their continuous training as well as those addressing questions relating to their personal and family life would need to be provided by the Court. It appears that they can mainly be implemented by the latter. The DH-SYSC decided that that this question will be examined in the light of the Court’s expected contribution. 110. What can be noted, at this juncture, is the information already provided by the Representative of the Registry on the project of personalised judicial assistance. The Court has just received a group of 9 trainees who will be working directly with 9 judges,

41 DH-SYSC-I (2017)010 assisting them with legal research in different contexts (e.g. for opinions, lectures, articles, etc.). This is a test scheme, making use of the trainees who come to the Court as part of the usual intake of trainees by the Council of Europe (2 groups of trainees each year, September-January and March-July). These are non-remunerated traineeships, with the judges taking on the role of trainer/mentor for the duration of the stage. Other persons, such as those coming to the Court as part of an agreement with an external body (e.g. university), can work as a judicial assistant on the same basis. The minimum academic requirement is to have completed at least the first years of a master’s degree in law. Assistants are subject to the same duties as staff regarding independence, loyalty and discretion. The programme will be evaluated after the first year. 111. With respect to the lack of knowledge about the work at the Court as a deterrent to apply, it was suggested that one of the means to inform potential candidates without infringing upon the independence and autonomy of the Court would be to consider asking the former judge/judges to make themselves available to answer any questions from those candidates on a confidential basis. This measure is already in place in some member States on an unofficial basis. IV. AD HOC JUDGES A. Challenges 112. During the 1 st meeting of DH-SYSC-I, it was agreed that a comprehensive approach examining all parameters of the selection/election of judges could not set aside questions related to ad hoc judges. 92 An ad hoc judge may be appointed when the elected judge is unable to sit in the chamber, withdraws, or is exempted or if there is none. This may occur, for instance, where a conflict of interest prevents the sitting judge from ruling on a case brought before the Court. The need to appoint an ad hoc judge may also arise when a sitting judge resigns or retires. 93 In such cases, the ad hoc judge covers cases until a new judge is elected by the Assembly with respect to a given State. The procedure for appointing an ad hoc judge that was in place before the adoption of Protocol No. 14 allowed the State Party substantial discretion in choosing the person to be appointed as ad hoc judge for a given case after the proceedings had begun, namely, when the content of the complaint was already known. Thus, it was argued that this procedure contradicted the equality of arms principle and raised concerns regarding the independence and impartiality of the ad hoc judge. 113. Protocol No. 14 remedied this situation. New Article 26 § 4 of the Convention provides for a judge’s replacement by a person – the ad hoc judge – “… chosen by the President of the Court from a list submitted in advance by that Party”. 94 When a State 92 The possibility for States Parties to nominate a judge of common interest (e.g. Behrami and Saramati v. France, Germany and Norway, Nos. 71412/01 and 78166/01) did not require any specific examination. 93 See Rule 29 of the Rules of Court. 94 As specified in the amended Rules of Court, the States Parties have to submit to the Court in advance a list containing the names of three to five persons eligible to serve as ad hoc judges for a renewable period

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