Экзамен зачет учебный год 2023 / [Andreas_Fllesdal,_Birgit_Peters,_Geir_Ulfstein]-1

Nevertheless, the attempts to improve national procedures are not entirely successful; the PACE had to recognise that ‘there is still signifi- cant variance as concerns fairness, transparency and consistency’.14 Indeed, it is concerned ‘by ad hoc and politicised processes in the nomination of candidates’.15 An assessment of these national procedures was made in a report dated 1 December 2008.16 While some national procedures closely follow the Assembly’s requirements or are even ‘exemplary’,17 very few of them appear to involve an independent organ at the pre-selection stage.

By the books, lists of candidates have to be transmitted directly to the PACE, but in practice lists have been sent first to the Secretary General and to the CoM through ambassadors.18 The PACE organises personal interviews of candidates by its sub-committee to ensure that candidates selected by States are competent. The sub-committee formulates a recommendation to the Bureau of the Assembly, and the Bureau forwards this recommendation to the Assembly. The candidate, having obtained an absolute majority of votes cast, is declared elected as a member of the Court. If no candidate obtains an absolute majority, a second ballot is held, after which the candidate who has obtained a relative majority of votes is declared elected. In practice, the recommendation formulated by the sub-committee is very often followed by the Assembly.

The above analysis has shown that the processes introduced to facilitate a more transparent election procedure at the national stage have remained relatively ineffective. The following section will demonstrate how the Court has come to take a more active role in the election proceedings.

17Ibid., at 14: ‘Several states’ selection procedures appear exemplary: Belgium makes a public call in the specialised press and transmits the information by other means to all universities and members of the legal profession, conducts interviews (including an assessment of language abilities), and gives an important role to an independent group of experts as well as academics with human rights expertise.’ The Netherlands, in addition to making an open call for candidatures in the specialised and general press, holding interviews, and providing for an independent panel of experts, has published a document describing the selection procedure in detail (see document AS/Jur (2008) 52).

18A. Drzemczewski, ‘The European Human Rights Convention: A New Court of Human Rights in Strasbourg as of 1 November 1998’, Washington and Lee Law Review 55:3 (1998) 697–736. A. Drzemczewski, ‘Election des Juges à la Cour Européenne de Strasbourg: un Aperçu’, L’Europe des libertés 33 (2010), at 6 (hereinafter Drzemczewski, ‘Election des Juges’).

before the drafting of Protocol 2, ‘the examples which were given of issues which might come within this general jurisdiction concerned primarily procedural points such as the election of judges…’23 The PACE has the competence to submit written comments to the Court when seised by the CoM to give an advisory opinion. Yet it is remarkable that the PACE has never been given the competence to seise the Court, even when the two new forms of requests by the CoM to the Court on execution of judgments were recently discussed and introduced by Protocol 14.24 There seems to be a long distrust of the PACE.

In its ‘Advisory Opinion on certain legal questions concerning the lists of candidates submitted with a view to the election of judges to the European Court of Human Rights’, the ECtHR (Grand Chamber, 12 February 2008) confirmed the main responsibility of the PACE with regard to the election process.25 But the support of the Court to the PACE’s activities is not unlimited. This request to the Court to give an advisory opinion related to the gender-based criteria imposed by the PACE to States when submitting a list of candidates.26 The criteria are not stipulated in article 21, but were added in the Resolutions adopted by the PACE.27 Indeed, this opinion related to the impasse between one government and the PACE following the refusal of the list sent by the Maltese authorities in July 2006, as it included no candidate belonging to the under-represented sex. The Maltese government invited the PACE to co-sponsor with it a request to the CoM under article 47 for a referral to the Court for an advisory opinion. As the PACE replied that it had no competence on this matter, the Maltese government requested on its own

23 As was recalled by the Court itself in ECtHR, Advisory Opinion, Decision on the competence of the Court to give an advisory opinion, 2 June 2004, at 28.

24ECHR, article 46, paras. 3, 4 and 5.

25Certain legal questions, Advisory Opinion: ‘As the body responsible for electing judges, it must also ensure in the final instance that each of the candidates on a given list fulfils all the conditions laid down by Article 21, paragraph 1, in order for it to preserve the freedom of choice conferred on it by Article 22, which it must exercise in the interests of the proper functioning and the authority of the Court.’

26A. Mowbray, ‘The Consideration of Gender in the Process of Appointing Judges to the European Court of Human Rights’, Human Rights Law Review 8:3 (2008) 549–59.

27Parliamentary Assembly, ‘Candidates for the European Court of Human Rights’, Resolution 1366(2004), 30 January 2004, at 3: ‘The Assembly decides not to consider lists of candidates where … ii. The list does not include at least one candidate of each sex.’ According to Resolution 1426 (2005), Candidates for the ECtHR, PACE, 18 March 2005, at 3, ‘the Assembly decides not to consider lists of candidates where: … ii. The list does not include at least one candidate of each sex, except when the candidates belong to the sex which is under-represented in the Court …’

that the CoM ask the Court to give an advisory opinion on these matters. The Court started by recalling the attempt to have article 22 of the Convention amended on that point. Nevertheless, the CoM has always replied to the PACE that ‘circumstances may exceptionally arise in which,… a Contracting Party may find itself obliged to submit a list containing candidates of only one sex in derogation from that rule, and that it would therefore be undesirable to give such a rule binding force under the Convention’.28 This question was expressly addressed when discussing Protocol 14, and it was decided not to amend article 22.29 Consequently, it is clear that this advisory opinion concerns a dispute between a State Party and the PACE. In addition, it deals with conflicting views between the PACE and the CoM on the compulsory or noncompulsory criteria based on gender equality when submitting a list of three candidates. To a certain extent, the Court played the role of an arbitrator, holding that ‘there is a need to ensure that the situation which gave rise to the request for an opinion does not cause a blockage in the system’.30 Even if the Court chose words very carefully and maintained that the question raised before it ‘does not lend itself to a straightforward “yes” or “no” answer’, it clearly and strongly came down in favour of the State and of the CoM’s points of view, affirming that in such circumstances, ‘the Assembly may not reject the list in question…’

The second advisory opinion given by the Court followed a dispute between the PACE and the Ukrainian authorities. It raised the issue of the possibility for the State to withdraw a list that had already been submitted to the PACE, where it had already interviewed two of the candidates, the third having withdrawn his candidature for personal reasons. The PACE had asked the authorities to communicate the name of a third candidate in order to complete the list, and opposed the transmission of an entirely new list. Contrary to former practice, this time the PACE took the initiative to recommend the CoM to seek an advisory opinion from the Court.31 Written comments were sent by sixteen State parties and by the PACE. The Court affirmed that the questions ‘… also relate to the division of powers between the

28Committee of Ministers, ‘Candidates for the European Court of Human Rights’, Parliamentary Assembly Recommendation 1649 (2004), CM/AS(2005)Rec1649final, 20 April 2005, Reply of the CoM to the PACE.

29Protocol 14 to the ECHR, ‘Amending the Control System of the Convention’, Explanatory Report, CETS No. 194, at 49.

30Certain legal questions, Advisory Opinion, at 38.

31Recommendation 1875 (2009), adopted 23 June 2009.

Contracting States and the Parliamentary Assembly in the context of that procedure’.32 The Court first recalls one of the three main principles regarding the election of judges, that is to say ‘the balance and division of powers between the High Contracting Parties and the Assembly under Article 22 of the Convention’ (para. 39), which implies ‘that the entities involved – the State concerned and the Assembly – enjoy a certain autonomy, within the limits of their respective powers’ (ibid.), without going into further details. Unsurprisingly the Court, on the question of the possibility for a State to withdraw a list, held that States parties have such a right, ‘but only on condition that they do so before the deadline set for submission of the list to the Parliamentary Assembly. After that date, the High Contracting Parties will no longer be entitled to withdraw their lists’ (para. 49). In the same spirit, the Court held that ‘candidates on a list withdrawn by the High Contracting Party can no longer be regarded as candidates if the withdrawal occurs before the time-limit’ (para. 50). Thus, ‘If the withdrawal occurs before the time-limit referred to in paragraph 48 above, the High Contracting Party concerned may either replace any absent candidates or submit a new list of three candidates. If, however, the withdrawal occurs after that date, the High Contracting Party concerned must be restricted to replacing any absent candidates’ (para. 57). This advisory opinion is very clear and balanced, drawing a line between the national and the European stages.33 Moreover, the Court seemed to be sensitive both to the respect of the autonomy of the States and of the PACE.

I do not completely agree that the Court kept a ‘low profile’ in these advisory opinions.34 The Court clearly took a stand in favour of one of the options which was at issue, while respecting the requirements set up in the text of the Convention. If the Assembly wished to add some new criteria for the nomination of candidates, these criteria should be added to the text of the ECHR. In this process the Court tried to adopt a balanced approach in respect of the autonomy of the States and of the PACE and clearly assumed its role of an arbitrator by demanding conformity with law. In both opinions, the Court acted on the formal request of the CoM, but the facts related in substance to the relationship between the PACE and member states.

32Certain legal questions No. 2, Advisory Opinion, at 31.

33On the whole procedure, see Drzemczewski, ‘Election des Juges’, at 6.

34J.-F. Flauss and G. Cohen-Jonathan, ‘La CourEDH et le droit international’, Annuaire Français de Droit International 50 (2004), at 781.

1.2.2 The new panel of experts

In the past, the Court has tried to influence the election of new judges; indeed, the President of the ECtHR happened to lobby for the re-election of some judges, and attempted to influence governments (through ambassadors) and the PACE at the election stage.35 But a new step has recently been taken. The idea came from the former French President of the Court, who suggested36 that a panel be set up to advise governments before lists of candidates are transmitted to the PACE. This initiative, ‘seen from this perspective’ (the perspective of the improvement of the quality of lists submitted by the governments) was ‘welcomed’ by the PACE.37 The seven-person advisory panel is composed of former judges of the Court and other international courts, members of the highest national courts and lawyers of recognised competence. It has to be geographically and gender balanced. This panel is appointed by the CoM for a three-year term, renewable once upon the proposal of the Court’s President.38 According to former President Costa’s letter, it would ‘intervene before a list was submitted to the PACE by the contracting party so as not to interfere with the PACE’s Convention responsibilities in this area. Moreover, its role would be advisory; in other words, it would make recommendations to the nominating state including, as necessary, proposals to modify the list.’39

35The former President of the ECtHR admitted that he ‘lobbied for the re-election of the Moldovan and the Austrian judges’ and ‘tried to convince the deputies to refuse the lists submitted by the two governments and to inquire why the judge in function was not on the list’: F.J. Bruinsma and S. Parmentier, ‘Interview with L. Wildhaber, President of the ECHR’, Netherlands Quarterly Review of Human Rights 21:2 (2003), at 196.

36The idea also came from the former President of the Court, L. Wildhaber: Bruinsma and Parmentier, ibid., at 195: ‘I think it would be good to have an advisory body at the international level that would look for quality.’ This proposal was also mentioned in the Committee of Ministers, ‘Report of the Group of Wise Persons to the CoM’, CM(2006) 203, 15 November 2006, at 118 (hereinafter ‘Report of Wise Persons 2006’), which envisaged the screening of candidatures ‘by a committee of prominent personalities possibly chosen from among former members of the Court, current and former members of national supreme or constitutional courts and lawyers with acknowledged competence’.

37Parliamentary Assembly, ‘National Procedures for the Selection of Candidates for the ECtHR’, Resolution 1764 (2010), 8 October 2010; Parliamentary Assembly, ‘National Procedures for the Selection of Candidates for the ECtHR’, Doc. 12391 (R. Wohlwend), 6 October 2010 (hereinafter Doc. 12391).

38Ibid., at 9.

39Letter of President Costa. See also, Doc. 12391, at 10: ‘My understanding of the manner in which the proposed panel of experts would function is this: the panel would provide advice to governments by examining the curriculum vitae of the candidates selected before transmission of the list of the three candidates to the Assembly. This procedure

Nevertheless, some criticisms were expressed by the Reporter of the PACE, stating that:

This idea, modeled on the independent panel (Article 255 of the Treaty on the Functioning of the EU40) set up with the entry into force of the Lisbon Treaty, relates to another type of ‘animal’. Under the ECHR it is the PACE which elects judges from a list of three persons (in other words, it has a choice: Article 22), whereas the EU panel looks at the suitability of (single) candidates put forward for appointment by governments to the ECJ. Election of judges by the Assembly, in the Strasbourg system, provides ‘democratic legitimacy’, something which no other international court possesses. Similarly, states parties to our Convention might consider such a ‘hybrid creation’ as an inappropriate interference in their own national, hopefully rigorous, transparent and fair, selection procedures (as might also the Assembly, were it ever suggested that such a panel provide the Assembly, rather than states parties, with advice).41

This panel was applauded by the former President of the Court, noting that the authority of the Court depends mostly on the quality of the judges.42 The members of the panel were actually appointed in December 2010. The panel is chaired by the former President of the ECtHR,

would be obligatory. If the panel were to find, after an examination of the curriculum vitae, that the list to be forwarded to the Assembly is composed of suitable candidates, it would so inform the state concerned without further comment. If, however, the panel were of the view that one or more of the persons on the list (to be) put forward to the Assembly was not suitable, it would provide its views, in a confidential procedure, to the state concerned, indicating to it why the said person or persons should not be on the list. Then, if ever the state concerned were not to heed the “advice” of the panel and transmit, to the Assembly, a list containing one or more persons deemed by the panel not to meet the criteria for office – as provided in Article 21, paragraph 1, of the Convention, – the panel would inform the Assembly of its reasons.’

40Consolidated Version of the Treaty on the Functioning of the EU, Official Journal of the EU, C83/47, 30 March 2010, article 255: ‘A panel shall be set up in order to give an opinion on candidates’ suitability to perform the duties of Judge and AdvocateGeneral of the Court of Justice and the General Court before the governments of the member States make the appointments referred to in Articles 253 and 254. The panel shall comprise seven persons chosen from among former members of the Court of justice and the General Court, members of national supreme courts and lawyers of recognized competence, one of whom shall be proposed by the European Parliament. The Council shall adopt a decision establishing the panel’s operating rules and a decision appointing its members. It shall act on the initiative of the President of the Court of Justice.’

41Doc. 12391, at 11.

42ECtHR, J.-P. Costa, ‘Foreword’, Annual Report 2010, provisional edition (Council of Europe, Strasbourg), January 2011, at 5.

L. Wildhaber, and is composed of six other experts.43 If a government refuses to follow the panel’s advice that a candidate is unsuitable, ‘the panel’s reasons would be communicated directly to the latter PACE for its information’.44 The functioning of the panel, initially settled for a three-year period, will be reviewed.45 The panel decides on the suitability of each candidate, and not of the whole list. The PACE’s approach is to consider the panel’s activity as an internal process operating in conjunction with the selection made by governments.

It seems that this initiative is symptomatic of the Court’s willingness to be involved in matters which go beyond its ‘jus dicere’ role. It is true that the election of many judges in the coming months and years is of high importance, in order to ensure a certain continuity of the case law of the Court.46 Taking previous practice into account, it is apparent that this new panel will not have much impact, as it is likely that it will be reluctant to reject candidates submitted by the governments. It is also sensitive to the fact that the PACE has a significant experience in examining lists. The panel held an inaugural meeting at the end of January 2011. In 2011 the panel examined the lists sent by three States: France, Switzerland and Belgium. As the procedure is confidential, it is not possible to know the impact of its examination. The French list was rejected in spring 2011 by the PACE, which had previously rejected eight other lists.47

In considering the interim advice sent recently by the British Commission in a bill of rights to the British government, one has the impression that there may be an attempt in the coming months, particularly under the chairmanship of the new British President of the Court, to increase the powers of this panel. In fact, the Commission shares the view that this panel does not go far enough; for example, it cannot interview all nominees

43 Katarzyna Gonera (Poland), Renate Jaeger (Germany), Chief Justice John L. Murray (Ireland), Matti Pellonpää (Finland), Professor Sami Selçuk (Turkey), Valery D. Zorkin (Russian Federation).

44 Committee of Ministers, Ad Hoc Working Party on the Follow-up Process to the Interlaken Declaration, ‘Election of Judges to the European Court of Human Rights’, GT-SUIVI.Interlaken(2010)8, 24 June 2010.

45Committee of Ministers, ‘Report on the Future of the European Court of Human Rights’ CM(2011)57 final, follow-up to the Interlaken and Izmir Conferences, 3 May 2011, at 7.

46The number of judges to elect in the following years at the ECtHR is: 7 for 2013, 2 for 2014, 11 for 2015, 10 for 2017, 1 for 2018 and 2 for 2019 (‘Election of Judges to the European Court of Human Rights’, GT-SUIVI.Interlaken(2010)8, 24 June 2010).

47Parliamentary Assembly, ‘Nomination of Candidates and Election of Judges to the European Court of Human Rights’, Doc. 11767, 1 December 2008, para. 8.

before giving its advice to the Assembly.48 Yet when the panel was set up, the registrar of the Court affirmed that a hearing of the candidates was not necessary, as it was the responsibility of the sub-committee of the PACE.49 Without putting into question the role of the PACE in that process, the idea may be to put more pressure on it and reduce its influence. The main responsibility should, however, still lie in the hands of the PACE, which has demonstrated its autonomy towards States.

The ECtHR is clearly the only international court where governmental officials do not have full control over elections. There now seems to be four actors: the nominating State, the PACE, the CoM and the Court (indirectly). The role and the authority of the PACE (the only democratic organ of the Council of Europe) should be safeguarded. It is also desirable that the panel acts in accordance with the guidelines set up by the PACE.

The weakest point in securing competent and independent judges is certainly the nomination by States. The fact that the CoM has issued guidelines in this matter and that the Brighton Declaration ‘Welcomes the adoption by the Committee of Ministers of the Guidelines on the selection of candidates for the post of judge at the European Court of Human Rights, and encourages the States Parties to implement them (…) and invites the Parliamentary Assembly and the Committee of Ministers to discuss how the procedures for electing judges can be further improved’,50 shows that the competence given to the PACE in this field (by the Statute of the Council of Europe) has been seriously called into question. Labelled as an improvement of the election process, an interference of the executive organ has taken place. This means that the election process will be even more dependent on the governments.

2.The implementation of the Court’s judgments

It is well known that ‘full execution of judgments helps to enhance the Court’s prestige and the effectiveness of its action and has the effect of limiting the number of applications submitted to it’.51

48Commission on a bill of rights, ‘Reform of the ECtHR Our Interim Advice to Government’, 28 July 2011, http://www.justice.gov.uk/downloads/about/cbr/cbr-court-reform- interim-advice.pdf/ (11 July 2012).

49Committee of Ministers, Ad hoc working party on the follow-up process to the Interlaken Declaration, GT-SUIVI.Interlaken(2010)CB5, Synopsis, Meeting of 29 June 2010, 5 July 2010, at 15.

50CoE, High Level Conference on the Future of the European Court of Human Rights, Brighton Declaration, 20 April 2012, para. 25(a) and (b).

51‘Report of Wise Persons’, at 25.

Considering the terminology and distinction used by R. Grant and R. Keohane,52 I share the view that the European system of human rights protection has evolved towards a ‘participatory model of accountability’. This model involves a plurality of actors, and this seems to have enhanced the effectiveness of the monitoring procedure. According to the ECHR, the supervision of the execution of the judgments is a matter for the CoM alone.53 In reality, the arrangement has become much more complex: the Court has come to play a greater part in the process of supervising this execution. By its own initiative, the PACE has also de facto and even de jure imposed an increasingly institutionalised right of inspection on the CoM. The following assessment will show that, with regard to the implementation of the judgments, the activities of the CoM and of the Court often overlap, as do the functions of the PACE with the CoM. There is no triangular relationship, but rather, a double bilateral connection; in this regard, the CoM comes under pressure both from the Court and from the PACE. The Court has taken the risk of redefining its relationship with the CoM, raising the argument that its involvement is necessary in order to enhance the effectiveness of the implementation of the judgments.

2.1 The CoM and the Court in a more cooperative interconnection

The workload of the CoM is dramatically increasing (more than 10,000 pending cases) and the last few years have seen a significant increase in the number of cases relating to complex and sensitive issues. For instance, in 2010, the number of new cases was three times the number of cases which had been closed by a final resolution.54

To a certain extent, the CoM has to admit its failure to effectively supervise the implementation of the judgments. As the financial and

52 R. Grant and R. Keohane, ‘Accountability and Abuses of Power in World Politics’, American Political Science Review 99:1 (2005) 29–43, 29, who ‘distinguish two basic concepts of accountability: delegation and participation’, among which they expose a plurality of models. See E. Lambert-Abdelgawad, ‘The Execution of the Judgments of the ECtHR: Towards a Non-coercive and Participatory Model of Accountability’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 69:3 (2009) 471–506.

53E. Lambert-Abdelgawad, The Execution of Judgments of the European Court of Human Rights, Human Rights Files No. 19, 2nd edn (Strasbourg: Council of Europe Publishing, 2008).

54Committee of Ministers, ‘Supervision of the Execution of Judgments of the ECtHR’, 4th Annual Report (Strasbourg: Council of Europe, 2011), at 31.