Advisory Opinion 12.02.2008

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

Strasbourg, 12 February 2008

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

STRASBOURG 

12 February 2008

This opinion is final. It may be subject to editorial revision.

GRAND CHAMBER

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

Strasbourg 

12 February 2008

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Jean-Paul Costa, President,
Christos Rozakis,
Nicolas Bratza,
Boštjan M. Zupančič,
Peer Lorenzen,
Françoise Tulkens,
Loukis Loucaides,
Ireneu Cabral Barreto,

Corneliu Bîrsan,

Nina Vajić,
Mindia Ugrekhelidze,
Anatoly Kovler,
Vladimiro Zagrebelsky,

Antonella Mularoni,
Elisabet Fura-Sandström,

Egbert Myjer,

Dragoljub Popovic, judges,
and Erik Fribergh, Registrar,

Having deliberated in private on 5 December 2007 and 30 January 2008,

Delivers the following opinion, which was adopted on the last-mentioned date:

PROCEDURE

1.  By letter of 17 July 2007 to the President of the Court, the Chairperson of the Ministers’ Deputies of the Council of Europe requested the Court, in accordance with Article 47 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), to give an advisory opinion on the questions set out below.

2.  Under Rule 84 § 1 of the Rules of Court, the Registrar sent a copy of the request to all the members of the Court. The request was assigned to the Grand Chamber of the Court (Article 31(b) of the Convention), the composition of which was determined according to the provisions of Article 27 § 3 of the Convention and Rule 24 of the Rules of Court. The composition of the Grand Chamber was subsequently changed in accordance with Rules 24 §§ 2 and 3, 28 and 82: Judge Spielmann withdrew from sitting in the case on 22 January 2008 and was replaced by Judge Mularoni; Judge Butkevych, who was prevented from taking part in further consideration of the case, was replaced by Judge Cabral Barreto.

3.  By letter of 10 August 2007, the Registrar of the Court informed the Contracting Parties and the Parliamentary Assembly of the Council of Europe that they could submit written comments to the Court on the request no later than 15 October 2007 (Rules 84 § 2 and 85 § 1). The governments of thirteen Contracting Parties (Austria, the Czech Republic, France, Georgia, Malta, Monaco, Portugal, Slovakia, Slovenia, Spain, Switzerland, Turkey and the United Kingdom), and also the Parliamentary Assembly, submitted written comments within the time allowed.

4.  On 3 October 2007 the Registrar, at the request of the judge rapporteur, invited the Contracting Parties to provide information by 23 October 2007 in reply to the following question: “Are there any rules designed to ensure the presence of women (or, as the case may be, of the under-represented gender) within the Supreme and/or Constitutional Courts of your country? If so, please specify their nature and content” (Rule 49 § 3 (a) of the Rules of Court). Thirty-seven governments replied to the question within the time allowed.

5.  Copies of the comments and replies received (see paragraphs 3 and 4 above) were transmitted to the Committee of Ministers, each of the Contracting Parties, the Parliamentary Assembly and the members of the Court (Rule 85 § 2 of the Rules of Court).

6.  After the close of the written procedure, the President of the Court decided that there was no need to give the Contracting Parties which had submitted written comments an opportunity to develop them at an oral hearing (Rule 86).

THE QUESTIONS ASKED

7.  The questions asked in the request for an advisory opinion were worded as follows:

(a) can a list of candidates for the post of judge at the European Court of Human Rights, which satisfies the criteria listed in Article 21 of the Convention, be refused solely on the basis of gender-related issues?

(b)  are Resolution 1366 (2004) and Resolution 1426 (2005) in breach of the Assembly’s responsibilities under Article 22 of the Convention to consider a list, or a name on such list, on the basis of the criteria listed in Article 21 of the Convention?

THE BACKGROUND TO THE REQUEST FOR AN OPINION

8.  The present request for an opinion arose out of the following correspondence between the Maltese authorities and the Parliamentary Assembly concerning the composition of the Maltese list of candidates for the post of judge at the Court.

9.  On 26 January 2007 Mr René van der Linden, President of the Parliamentary Assembly, wrote to Mr Jeffrey Pullicino Orlando, chairperson of the Maltese delegation to the Assembly, in the following terms:

“Dear Chairman,

As you are aware, on 17 July 2006, your authorities submitted a list of candidates for the post of Judge to the European Court of Human Rights.

This list does not, however, include at least one candidate belonging to the sex which is under‑represented (female) in the Court and thus does not fulfil the criterion laid down in paragraph 3.ii. of Assembly Resolution 1366 (2004), as modified by Resolution 1426 (2005).

[closing formula]”

10.  On 22 February 2007 Mr Tonio Borg, Deputy Prime Minister, sent the following letter to Mr van der Linden :

“Dear Mr President,

I refer to your letter dated 26th January 2007 addressed to the chairperson of the Maltese delegation to the Parliamentary Assembly wherein you informed him that the list submitted by the Maltese Authorities does not fulfil the criterion laid down in paragraph 3. ii of Assembly Resolution 1366 (2004).

Any High Contracting Party, in submitting its list of candidates, is obliged to observe art 21 of the European Convention on Human Rights. This article provides that the list should contain the names of candidates “of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognized competence.”

Nowhere in the Convention is it stipulated that one candidate belonging to the sex which is under represented in the Court must feature in the list.

Besides, the Maltese Government acted in the most transparent manner in preparing the submitted list. It first of all issued a public call for nominations – a procedure which has not been followed in a number of other member states of the Council of Europe. Only two female candidates applied. At the same time the entire composition of the three-member Constitutional Court of Malta – all males – applied for the post.

Upon examination it transpired that:

a)  the two female candidates did not possess the necessary experience in the field of human rights as required by paragraph 19ii of the Parliamentary Assembly’s Recommendation 1649 (2004)

b)  secondly, and without prejudice to paragraph (a), the three members selected, had vast experience of the subject (including at least twenty years’ experience in human rights law) and were by far more qualified than any other candidate, male or female.

The process which led to the list of candidates submitted by Malta reflected, therefore, “the principles of democratic procedure, the rule of law, non-discrimination, accountability and transparency” (cf. Rec. 1649 (2004)).

The Maltese Government has therefore submitted a list which is in conformity with the European Convention on Human Rights; it is respectfully submitted that this list can only be refused if it does not conform with the criteria listed in article 21 of the Convention and not on gender-related issues which are not mentioned or covered by the Convention; so much so that recently the Parliamentary Assembly requested the Committee of Ministers to amend the Convention to oblige a High Contracting Party to submit the name of a candidate from the sex under-represented in the Court (female). This request was rejected, which therefore confirms the position of the Maltese Government that the Assembly has no right under the Convention as it stands today, to reject any list of candidates on gender issues.

Besides, as I have pointed out, the Maltese Government did its utmost to find a female candidate with the required expertise by issuing a public call for nominations. The fact that in Malta only in recent years has the number of female lawyers increased was completely ignored by the Assembly; and a one-size-fits-all rule, which is alien to the provisions of the Convention, was applied.

In the circumstances I suggest that a proper dialogue be opened between the two sides to solve the current impasse. I assure you that had there been other female candidates who satisfied the criteria of art 21, and who were as capable as or more capable than the three judges nominated, they would certainly have been included in the list.

Finally I firmly believe that the Convention can only be amended by the unanimous consent of the High Contracting Parties and not through Resolutions of any body of the Council of Europe.

In this context, I respectfully submit that since your refusal of the list on gender-related issues raises a matter of interpretation of article 21 and 22 of the Convention, the question should be referred to the Committee of Ministers by both sides; then the Committee may request an Advisory opinion of the European Court of Human Rights under article 47 of the Convention. The Maltese Government is ready to abide by the conclusions of such an opinion, and so I believe would be the Assembly.

[closing formula]”

11.  On 25 April 2007 Mr van der Linden sent the following letter to Mr Borg:

 “Dear Deputy Prime Minister,

In my letter to you dated 19 March I indicated that I would inform you of the outcome of the Parliamentary Assembly’s debate on the subject “candidates for the European Court of Human Rights”, which took place last week during the Assembly’s April Part-Session in Strasbourg.

Please find enclosed with this letter an extract from the Report of the debate which took place on 17th April. In the light of the decision on this subject by the Assembly, no amendment has been introduced in the current Assembly’s selection criteria.

As I have already indicated to Mr J. Pullicino Orlando, Chairperson of the Maltese delegation to the Assembly in my letter of 26 January 2007, the Maltese list of candidates for the post of Judge to the European Court of Human Rights does not include at least one candidate belonging to the under‑represented sex in the Court and thus does not fulfil the criterion laid down in paragraph 3.ii of Assembly Resolution 1366 (2004), as modified by Resolution 1426 (2005).

Consequently, the Assembly looks forward to receiving a list of candidates from the Maltese authorities which conforms with the requirements of the European Convention of Human Rights and those specified in the above Assembly texts.

[closing formula]”

12.  On 8 May 2007 Mr Borg wrote the following letter to Mr van der Linden:

“Dear Mr President

Thank you for your letter dated 25th April 2007. May I however point out that the Maltese Authorities have already sent a list of candidates which conforms with the requirements of the European Convention of Human Rights.

It was for this reason that in my letter dated 22nd February 2007, I had suggested that the matter be jointly referred to the Committee of Ministers so that it will then be sent to the European Court for an Advisory Opinion under article 47 of the Convention, as to whether the refusal of the list of candidates is in accordance with the European Convention.

I would be happy to receive an answer to this part of my letter.

[closing formula]”

13.  On 14 May 2007 Mr van der Linden replied as follows:

“Dear Deputy Prime Minister,

...

As concerns the Maltese list of candidates for the post of judge to the European Court of Human Rights, I reiterate what I wrote in my letter of 25 April, in which I referred to both the requirements of the European Convention of Human Rights and those specified in Assembly texts. Assembly Resolution 1366 (2004), as modified by Resolution 1426 (2005), reflects well‑established and uncontested procedures.

In so far as Advisory Opinions of the European Court of Human Rights are concerned, this is a matter with respect to which the Parliamentary Assembly has no competence.

[closing formula]”

14.  On 27 June 2007 Mr Joseph Licari, Permanent Representative of Malta to the Council of Europe, wrote the following letter to the Chairperson of the Committee of Ministers of the Council of Europe:

“Dear Chairperson,

On 26th January 2007, the President of the Parliamentary Assembly of the Council of Europe informed the chairman of the Maltese Delegation to the Parliamentary Assembly that the list submitted for the post of Judge to the European Court did not fulfil the criterion laid down in paragraph 3.ii. of Assembly Resolution 1366 (2004) as modified by Resolution 1426 (2005) since the list did not include at least one candidate belonging to the sex which is under-represented (female). (Doc 1)

The Maltese Government replied to this letter on 22nd February 2007 (Doc 2) emphasizing the following points:

a)  that a public call for expression of interest had been issued;

b)  that only two female candidates had applied, while the entire composition (3) of the Constitutional Court had submitted an application;

c)  while the two female candidates did not possess the necessary experience in the field of human rights, the three members selected viz the entire composition of the Constitutional Court had vast experience in the subject and were by far more qualified than all the other candidates – male or female.

d)  that a list can only be refused if it does not conform with the criteria established in article 21 of the Convention and not on gender-related issues which are not mentioned in the Convention.

In the letter the Maltese Government made it clear that the refusal on gender-related issues raises a matter of interpretation of articles 21 and 22 of the Convention. It also invited the President of the Parliamentary Assembly to co-sponsor a request with Malta to the Committee of Ministers under article 47 of the Convention for a referral to the European Court for an advisory opinion on the matter.

Following unsuccessful attempts at amending the aforementioned Resolutions by a group of members of the Parliamentary Assembly, the Maltese Government revived its request – in a letter dated 8th May 2007, for a joint request to the Committee of Ministers. (Doc 3)

On 14th May 2007, the President of the Parliamentary Assembly replied that “this is a matter with respect to which the Parliamentary Assembly has no competence.” (Doc 4)

Consequently, on behalf of the Maltese Government, I am hereby requesting that the Committee of Ministers in virtue of article 47 of the European Convention requests an advisory opinion on the following issues:

a)  can a list of candidates for the post of Judge on the European Court of Human Rights, which satisfies the criteria listed in article 21 of the Convention, be refused solely on the basis of gender-related issues?

b)  is Resolution 1366 (2004) and Resolution 1426 (2005) in breach of the Assembly’s powers and responsibilities under the Convention to refuse a list, or a name on such list, only on the basis of the criteria listed on article 21 of the Convention?

[closing formula]”

RELEVANT TEXTS

I.  THE RELEVANT PROVISIONS OF THE CONVENTION

15.  The request from the Committee of Ministers was made in accordance with Article 47 of the Convention, which provides:

Article 47
Advisory opinions

“1.  The Court may, at the request of the Committee of Ministers, give advisory opinions on legal questions concerning the interpretation of the Convention and the protocols thereto.

2.  Such opinions shall not deal with any question relating to the content or scope of the rights or freedoms defined in Section I of the Convention and the protocols thereto, or with any other question which the Court or the Committee of Ministers might have to consider in consequence of any such proceedings as could be instituted in accordance with the Convention.

3.  Decisions of the Committee of Ministers to request an advisory opinion of the Court shall require a majority vote of the representatives entitled to sit on the Committee.”

16.  Articles 48 and 49 of the Convention read as follows:

Article 48
Advisory jurisdiction of the Court

“The Court shall decide whether a request for an advisory opinion submitted by the Committee of Ministers is within its competence as defined in Article 47.”

Article 49
Reasons for advisory opinions

“1.  Reasons shall be given for advisory opinions of the Court.

2.  If the advisory opinion does not represent, in whole or in part, the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.

3.  Advisory opinions of the Court shall be communicated to the Committee of Ministers.”

17.  The request for an advisory opinion refers to Articles 21 and 22 of the Convention, the relevant parts of which provide:

Article 21
Criteria for office

“1.  The judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence.”

2.  ...

3  ....”

Article 22
Election of judges

“1.  The judges shall be elected by the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes cast from a list of three candidates nominated by the High Contracting Party.

2.  The same procedure shall be followed to complete the Court in the event of the accession of new High Contracting Parties and in filling casual vacancies.”

II.  TRAVAUX PRÉPARATOIRES TO PROTOCOL NO. 2

18.  During the travaux préparatoires prior to adoption of Protocol No. 2, the nature and scope of the new competence to be conferred on the Court were discussed. On this subject, the report presented by Mr Wahl on behalf of the Legal Committee of the Consultative Assembly (Doc. 1061 of 24 November 1959) includes the following passages:

“It is for consideration, consequently, whether the Court should not be given a general jurisdiction to interpret the Convention, which would therefore include matters arising out of the application of the Convention but not resulting from contentious proceedings brought under Article 48.

If the Court is given jurisdiction to give an authoritative interpretation on matters of this sort, it is important to keep it within proper limits. Its new competence should be limited to questions of a legal character. There are no doubt gaps in the Convention which will need to be filled; some of them require legal decisions and might well be left to the Court, but others are of a political character and we should put the Court in a false position if we asked it to take political decisions.

...

Within the limits thus laid down, there are a certain number of problems of interpretation of a legal character on which it would be useful to have an authoritative ruling. The following are just two examples of problems of a legal character about which the interpretation of the Convention is not clear:

1.  Whether a simple majority or an absolute majority is required for the election of the judges under Article 39. ...

2.  The procedure by which the Committee of Ministers should discharge its obligations under Article 32 of the Convention. ...”

19.  During the discussions in the Committee of Experts, the opinion was expressed that the term “legal”, used to describe the type of questions that could be submitted for an advisory opinion, served no purpose, since a question concerning the interpretation of a Convention should be considered as being of necessity a legal one. Conversely, it was said that the use of this term would underline the Committee’s desire to exclude any questions whose terms or whose solution would involve matters of policy (DH/Exp (61) 36, 18 January 1962).

III.  DOCUMENTS OF THE PARLIAMENTARY ASSEMBLY AND THE COMMITTEE OF MINISTERS

20.  Parliamentary Assembly Resolutions 1366 and 1426 read as follows:

Resolution 1366 (2004)
Candidates for the European Court of Human Rights

“1.  The Parliamentary Assembly, referring to its Recommendation 1649 (2004), continues to support the procedure by which candidates are asked to complete a standard curriculum vitae; it believes that the model to be used should be reviewed by the Ad hoc Sub-Committee on the Election of Judges to the European Court of Human Rights and that proposals for modification should be reported to the sub‑committee for adoption by the Assembly.

2.  The Assembly remains convinced that the twelve-month timetable it has adopted provides a practical model for all participants, but resolves nevertheless to keep its targets under review.

3.  The Assembly decides not to consider lists of candidates where:

i.  the areas of competence of the candidates appear to be unduly restricted;

ii.  the list does not include at least one candidate of each sex;

iii.  the candidates:

a.  do not appear to have sufficient knowledge of at least one of the two official languages, or

b.  do not appear to be of the stature to meet the criteria in Article 21, paragraph 1, of the European Convention on Human Rights.

4.  The Assembly continues to believe that the process of interview provides additional insight into the qualities of the candidates and decides:

i.  that nominated candidates should be informed as far as possible of the purpose of the interview and procedures for its conduct;

ii.  that alternative locations for interviews should be considered if there is a valid reason for holding interviews outside Strasbourg and Paris;

iii.  that further staggering or additional sessions of the sub-committee might permit an extension of the time available for each interview;

iv.  that the political groups, when nominating their representatives to the sub-committee, should aim to include at least 40% women, which is the parity threshold deemed necessary by the Council of Europe to exclude possible gender bias in decision-making processes;

v.  that candidates should be made aware of the criteria employed by the sub‑committee in reaching its decision;

vi. that one of the criteria used by the sub-committee should be that, in the case of equal merit, preference should be given to a candidate of the sex under-represented at the Court;

vii.  that a fair and efficient interview process requires a continuous process of training and re-assessment of the members and staff involved in selection panels;

viii.  that the obligation to promote an open and transparent process might require the sub-committee to give reasons for its recommendations and ranking of candidates;

ix.  that it would be desirable to provide timely feedback to both the individual candidate and the nominating state.

5.  The Assembly refers to its report on the procedure for elections held by the Parliamentary Assembly other than those of its President and Vice-Presidents, which is currently under preparation in the Committee on Rules of Procedure and Immunities, which aims at changing the procedure for the elections, for example by removing the requirement for a second ballot when a candidate fails to receive an overall majority on the first ballot or in the event of a tied result.

6.  The Assembly, being concerned to ensure the independence and impartiality of judges, considers that their appointment should run for nine years non-renewable.

7.  The Assembly decides to investigate at national and European level what obstacles currently exist to the nomination of women candidates, what measures could be taken to encourage female applicants, and to consider setting targets for achieving greater gender equality in the composition of the Court.”

Resolution 1426 (2005)
Candidates for the European Court of Human Rights

“1.  The Parliamentary Assembly has developed and adopted a procedure for examining candidatures for the European Court of Human Rights, laying down detailed criteria.

2.  Noting the continued existence of a clear imbalance between the sexes in the membership of the Court, the Assembly, in Resolution 1366 (2004) and Recommendation 1649 (2004) on candidates for the European Court of Human Rights, stressed the importance of restoring the balance and decided accordingly ‘not to consider lists of candidates where (...) the list does not include at least one candidate of each sex’.

3.  The Assembly notes that women are clearly still under-represented in the Court today, as only 11 of the 44 judges currently in office are women.

4.  The wording of paragraph 3.ii of the resolution quoted above effectively excludes any consideration of an all-female list of candidates, even if this would obviously contribute to furthering the Assembly’s purpose of achieving a more balanced representation of both sexes in the Court.

5.  Accordingly, the Assembly decides to introduce a special rule for considering candidatures for the European Court of Human Rights regarding the under‑represented sex in the Court and to amend paragraph 3.ii of Resolution 1366 (2004) as follows:

‘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 is the sex to which under 40% of the total number of judges belong.’”

21.  The report of the Committee on Legal Affairs and Human Rights concerning Resolution 1366 (Doc. 9963 of 7 October 2003) includes the following passage:

“... The candidates should be made aware of the criteria employed by the Sub‑Committee in reaching its decision. In assessing the candidates, the Sub‑Committee will have considered the completed model curriculum vitae. By interview, Members have the opportunity to explore and clarify their skills and abilities and to make further assessment of the candidate based on:

-  knowledge and awareness of European Convention jurisprudence

-  general legal knowledge and experience

-  intellectual and analytical ability

-  maturity and soundness of judgement

-  decisiveness and authority

-  communication and listening skills

-  integrity and independence

-  fairness and impartiality

-   understanding of people and society

-  courtesy and humanity

-  commitment to public service

-  conscientiousness and diligence”.

22.  In its Recommendation 1429 (1999) of 24 September 1999 on national procedures for nominating candidates for election to the European Court of Human Rights, the Parliamentary Assembly stated in particular:

“6.  In order to remedy these shortcomings and assist the governments of the member states in their procedures for selecting candidates for the next elections, the Assembly recommends that the Committee of Ministers invite the governments of the member states to apply the following criteria when drawing up lists of candidates for the office of judge in the European Court of Human Rights:

i.  issue a call for candidatures through the specialised press, so as to obtain candidates who are indeed eminent jurists satisfying the criteria laid down in Article 21, paragraph 1, of the Convention;

ii.  ensure that the candidates have experience in the field of human rights, either as practitioners or as activists in non-governmental organisations working in this area;

iii.  select candidates of both sexes in every case;

iv.  ensure that the candidates are in fact fluent in either French or English and are capable of working in one of these two languages;

v. put the names of the candidates in alphabetical order.

7.  The Assembly also recommends that the Committee of Ministers invite the governments of member states to consult their national parliaments when drawing up the lists so as to ensure the transparency of the national selection procedure.”

23.  In its Recommendation 1649 (2004), adopted on 30 January 2004, the Parliamentary Assembly invited the Committee of Ministers in the following terms to amend Article 22 of the Convention, in the context of the drafting of Protocol No. 14:

“18.  In particular, the Assembly believes that it is not satisfactory merely to assert that the gender balance of the Court reflects the under-representation of women in the judiciary of the member states. It is in the interest of impartiality and of the Court’s effectiveness for the Committee of Ministers, the Assembly, and the high contracting parties to address the issue of the gender imbalance of the Court by considering – and where necessary, improving – the procedures for the appointment of judges.

19.  In addition to the moral qualities and experience rightly expected of candidates, laid down in Article 21, paragraph 1, of the Convention, the Assembly recommends that the Committee of Ministers invite the governments of the member states to meet six other criteria before submitting lists of candidates for the office of judge in the European Court of Human Rights, namely to ensure:

i.  that a call for candidatures has been issued through the specialised press;

ii.  that candidates have experience in the field of human rights;

iii.  that every list contains candidates of both sexes;

iv.  that the candidates have a sufficient knowledge of at least one of the two official languages;

v.  that the names of the candidates are placed in alphabetical order;

vi.  that as far as possible no candidate should be submitted whose election might result in the necessity to appoint an ad hoc judge.

20.  The Assembly also urges the governments of member states to notify their parliaments and their appropriate committees of their procedures and timetables when drawing up lists of candidates for the Court.

21.  It invites the Committee of Ministers, on the occasion of the forthcoming revision of the Convention, to introduce the following amendments:

‘Article 22 – Election of judges

1.  (...) containing at least one candidate of each sex. [otherwise unchanged]

2.  (...)

3.  The same procedure shall apply to the replacement of a judge who is compelled to withdraw. [otherwise unchanged]...’”

24.  In its reply adopted on 20 April 2005 (CM/AS(2005)Rec1649 final), the Committee of Ministers stated, inter alia:

“6.  It is in this spirit that the Committee of Ministers takes note of the six criteria in paragraph 19 of the Recommendation and invites the governments of Contracting Parties to make every attempt to meet them when preparing lists of candidates for election to the Court. However, it considers that criterion iii. (i.e. ‘that every list contains candidates of both sexes’) should be assessed against the background of paragraphs 7 to 9 below, and that criterion v. (‘that the names of candidates are placed in alphabetical order’) should not be regarded as preventing an independent body involved in the national nomination process from offering its views as to the relative merits of the three listed candidates.

7.  Having regard to the Assembly’s proposals for revision of the Convention (paragraph 21), the Assembly has already taken note of the fact that the Committee of Ministers chose not to implement the proposal to amend Article 22 of the Convention in order to provide that lists contain at least one candidate of each sex. The Committee of Ministers, recalling its constant position originally expressed as early as May 1997, wishes to make it clear that it fully shares the Assembly’s determination to secure a proper balance of the sexes in the composition of the Court and agrees therefore that lists of candidates should as a general rule contain at least one candidate of each sex.

8.  The Committee nonetheless believes that circumstances may exceptionally arise in which, as a result of the correct application of the other five criteria, 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. In this context, the Committee draws attention to the danger that such an obligation could under certain circumstances give rise to difficulties in satisfying the requirements of Article 21 of the Convention.

9.  The Committee of Ministers therefore invites the Assembly to consider the possibility of modifying its own rules in order to allow exceptional derogation from the rule where the authorities of the Contracting Party concerned present convincing arguments to the Committee of Ministers and the Assembly to the effect that, in order to respect the requirements concerning the individual qualifications of candidates, it could not do otherwise than to submit a single-sex list. ...”

25.  Hence, Protocol No. 14 leaves Article 22 unchanged. The explanatory report contains the following passage on the subject (paragraph 49):

“It was decided not to amend the first paragraph of Article 22 to prescribe that the lists of three candidates nominated by the High Contracting Parties should contain candidates of both sexes, since that might have interfered with the primary consideration to be given to the merits of potential candidates. However, Parties should do everything possible to ensure that their lists contain both male and female candidates.”

26.  On 19 March 2007 the Parliamentary Assembly’s Committee on Legal Affairs and Human Rights tabled a draft Resolution (Doc. 11208) aimed at amending paragraph 3.ii of Resolution 1366 (2004) as amended by Resolution 1426 (2005). The explanatory memorandum by the Rapporteur, Mrs Bemelmans-Videc, reads as follows:

“I. Introduction

1.  In January 2004, the Assembly adopted Resolution 1366 (2004) and Recommendation 1649 (2004). In these new texts, it confirmed the need to retain the selection procedure it established in 1996. It also emphasised the need to have candidates of the required level to exercise the function of judge in accordance with Article 21 of the European Convention on Human Rights, as well as the need for gender balance.

2.  In March 2005, Resolution 1366 (2004) was amended by Resolution 1426 (2005), under which single-sex lists of candidates may be considered by the Assembly if the sex is under-represented in the Court (under 40 % of judges).

3.  Under the current wording of the Resolution, the Ad Hoc Sub-Committee on the Election of Judges to the European Court of Human Rights has no choice but to recommend the rejection of single-sex lists if that sex is over-represented.

4.  On 5 October 2006, I and several other members presented a motion for a resolution (Doc 11067) to enable the existing rule to be waived in exceptional circumstances. At its meeting on 6 October 2006, the Committee on Legal Affairs and Human Rights (AS/Jur) endorsed this motion, in which we proposed adding a clause to paragraph 3.ii. of Resolution 1366 (2004) as amended by Resolution 1426 (2005). The Committee also appointed me rapporteur in the event of the matter being referred to it for report.

5.  Having considered the matter, the Bureau of the Assembly asked the Committee on Rules of Procedure and Immunities (AS/Pro) to provide it with an opinion on this subject.

6.  In its opinion, of 25 January 2007, the AS/Pro indicated that ‘given that, in Resolution 1366 (2004) as modified, the Assembly clearly defined the procedure for examining candidatures to the European Court of Human Rights and the criteria which the lists of candidates must meet, the procedure cannot be changed without an official amendment to the Resolution. The Assembly itself must therefore decide on any change to the procedure, on the basis of a new report and a new draft Resolution, which would have to be submitted to it for adoption’ (see document AS/Pro (2007) 02 rev).

7.  At its meeting on 26 January 2007, after having considered the AS/Pro’s opinion, the Bureau decided to instruct the Committee on Legal Affairs and Human Rights to prepare a report on the basis of the above-mentioned motion for a resolution (Doc 11067).

8.  On the same day, the matter was referred to our Committee for report.

II.  Amending Resolution 1366 (2004) to take account of exceptional circumstances

9.  In its reply to Recommendation 1649 (2004), the Committee of Ministers indicated that ‘circumstances may exceptionally arise in which, as a result of the correct application of the other five criteria [enumerated in paragraph 19 of the Recommendation], a Contracting Party may find itself obliged to submit a list containing candidates of only one sex in derogation from that rule.... In this context, the Committee draws attention to the danger that such an obligation could under certain circumstances give rise to difficulties in satisfying the requirements of Article 21 of the Convention’ (Doc 10506, emphasis added).

10.  The Committee of Ministers therefore invited the Assembly ‘to consider the possibility of modifying its own rules in order to allow exceptional derogation from the rule where the authorities of the Contracting Party concerned present convincing arguments to the Committee of Ministers and the Assembly to the effect that, in order to respect the requirements concerning the individual qualifications of candidates, it could not do otherwise than to submit a single-sex list’ (again, emphasis added).

11.  In view of the difficulties which may be encountered in examining a list one aspect of which leaves no procedural choice but to recommend its rejection, whereas that aspect might exceptionally be justified, taking account of compliance with the other criteria for the selection of judges laid down by the Assembly, consideration should be given to providing for an exception to the rule.

12.  If taken to the extreme, complying with one of the criteria laid down by the Assembly in its procedure for the selection of judges may have the contrary effect of preventing compliance with the other selection criteria.

13.  In this connection, attention should be drawn to paragraph 49 of the explanatory report on Protocol No 14 to the European Convention on Human Rights, according to which ‘it was decided not to amend the first paragraph of Article 22 to prescribe that the lists of three candidates nominated by the High Contracting Parties should contain candidates of both sexes, since that might have interfered with the primary consideration to be given to the merits of potential candidates. However, Parties should do everything possible to ensure that their lists contain both male and female candidates’.

14.  When a state has done everything possible to include members of the under‑represented sex in the list of candidates – but without success because of the requirement to satisfy the other criteria concerning the choice of the best qualified candidates – and is able to prove this with objective and reasonable explanations, the Assembly should reserve the right, under strictly defined conditions and in truly exceptional circumstances, to accept the list.

15.  Automatic rejection of such lists would mean reducing the Assembly’s ability to choose between three candidates who satisfied the other selection criteria. Any automatic requirement to include a female or a male candidate on a list, even if none of the potential female or male candidates satisfied the relevant criterion, would have the effect of reducing the Assembly’s choice and would be contrary to the spirit of the rules requiring gender balance on the list.

16.  In exceptional circumstances justifying corresponding action, the decision by the sub-committee to accept a list of the kind in question should be approved by a two-thirds majority of the members present.

III.  Proposal

17.  The Assembly should therefore amend paragraph 3.ii. of Resolution 1366 (2004) as modified by Resolution 1426 (2005) as follows:

‘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 is the sex to which under 40% of the total number of judges belong, or in exceptional circumstances considered as such by the Ad hoc Sub-Committee on the Election of Judges to the European Court of Human Rights and agreed to by a two-thirds majority.’”

27.  The report tabled by Mr Mendes Bota on behalf of the Committee on Equal Opportunities for Women and Men proposed rejecting the draft resolution (Doc. 11208). The explanatory memorandum included the following passages:

“8.  The Committee on Legal Affairs and Human Rights is proposing to the Assembly to amend the rules introduced by the above-mentioned Resolutions, to allow the Assembly not to reject all-male lists in ‘exceptional circumstances’ so as not to ‘reduce the Assembly’s ability to choose between three candidates who satisfy all the other selection criteria’ (summary of Doc. 11208). Indeed, the Committee even considers that ‘[d]ifficulties have, however, been encountered because of the strict application of the criterion set out in paragraph 3 ii. of Resolution 1366 (2004) as amended by Resolution 1426 (2005), to the detriment of the other criteria required in terms of the qualifications of the candidates.’ This is nothing more than an assumption that damages the credibility of female candidates and female judges on the European Court of Human Rights.

9.  In fact, there is only one single country which has found it ‘difficult’ to comply with the rule of the Assembly that a female candidate must be included on the candidate list. The judge for this country – Malta – was elected in January 1998 and took up his functions in November 1998 for a six-year term. The country twice put forward an all-male candidate list to replace him (transmitted to the Assembly by the Committee of Ministers in March 2004 and in September 2006), but the elections have not been held as the lists do not comply with the Assembly’s rules. The proposal of the Committee on Legal Affairs and Human Rights is, in fact, a proposal designed to change the Assembly’s rules to suit one single country, rather than make that one single country abide by the Assembly’s rules which it has already flouted twice!

10.  The argument put forward by the Rapporteur of the Committee on Legal Affairs and Human Rights, Ms Bemelmans-Videc, to justify this proposal is that there may be exceptional circumstances where ‘a state has done everything possible to include members of the under-represented sex in the list of candidates – but without success because of the requirement to satisfy the other criteria concerning the choice of the best qualified candidates’. This argument is untenable, as it presupposes that a state may face a situation where there is not one single woman at least as qualified as a man – which is simply inconceivable.

11.  Why is this inconceivable? Few people know that there is no citizenship requirement to become a judge on the European Court of Human Rights. In other words, you do not need to hold the citizenship of the country proposing you – indeed, you do not even have to hold the citizenship of a High Contracting Party (i.e. a European citizenship). Thus, for example, a Swiss judge is currently serving on behalf of Liechtenstein, and, in the past, there has even been a Canadian judge on the Court. The necessary requirements to become a judge are, according to the Convention: ‘The judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence’. The Assembly itself has interpreted these requirements further in Resolution 1366 (2004).

12.  Malta is not the smallest member state of the Council of Europe by any means. It has nearly 400.000 inhabitants, half of them women. There are two female judges and six female magistrates in Malta, and many more female advocates (the current judge on the Court, Mr Giovanni Bonello, was an advocate in private practice before he was elected). The country thus has a sufficiently large pool of highly qualified female potential candidates. However, even if it had not, it could choose a well-qualified female candidate from another country (the United Kingdom and Italy would spring to mind, the two countries which most influenced Malta’s legal tradition over the centuries). In fact, Malta could even choose amongst the most famous human rights lawyers globally, from Mary Robinson over Asma Jahangir to Shirin Ebadi. These candidates would certainly not be less qualified than the three male candidates Malta has proposed so far.

13.  Furthermore, much smaller countries than Malta have included qualified women candidates on their candidate lists. In fact, in several cases, these candidates were even elected judges to the European Court for Human Rights, such as Mrs Isabelle Berro-Lefèvre for Monaco (population: around 32.000) and Mrs Antonella Mularoni for San Marino (population: around 30.000). The true impediment to the inclusion of a qualified woman candidate on the list submitted by Malta thus appears not to be a lack of qualified female candidates, but a lack of respect for the principle of gender equality.

C.  The need for gender balance on the Court and in selection procedures

14.  Being elected a member of the European Court of Human Rights is an honour, which brings with it heavy responsibilities, but also high public esteem; it is seen as the pinnacle of a legal career. It is obvious that the position of judge at the European Court of Human Rights should thus be open equally to women and men.

15.  However, in most countries, the selection procedure of the candidates at the national level is not fully transparent and dominated by men. With the ‘old boys network’ alive and kicking in most member states, it should thus come as no surprise that, already at that level, more male than female candidates are put forward – in the last three years, 94% of all candidate lists included more men than women candidates! These numbers suggest that the biggest bias against women candidates is still at the national level.

16.  As our Rapporteur for opinion on the recent report on ‘improving CPT selection procedures’, Mrs Wurm, pointed out a few weeks ago, ‘the Committee on Legal Affairs and Human Rights is trying to play ‘quality’ against ‘gender equality’... This argument is a very old one and has been used in the past to try and avoid the introduction of ‘quotas’ or other forms of gender-based positive discrimination. What this argument does not take into account is that, like beauty, ‘quality’ is in the eye of the beholder. It has been proven by countless studies that selection panels tend to reproduce themselves, in particular as concerns their gender composition. In other words, regardless of the qualifications of candidates, male-dominated panels tend to select men.’

17.  A quick look at the gender composition of the selecting authorities at national level (governments, parliaments) reveals that most of them, if not all, are clearly male-dominated – Malta definitely is. At the level of the Assembly, the ad hoc Sub-Committee on the election of judges numbers four female titular members (24%) and thirteen male titular members (76%). The Assembly numbers the exactly same proportion itself: 24% women and 76% men. In other words, at every level of the selection procedure, the odds are stacked against female candidates.

18.  This is why it is necessary to continue to insist that each and every candidate list of three candidates to the European Court of Human Rights includes at least one woman. With the current representation of women on the Court at 30%, there is absolutely no reason to change that practice and allow all-male lists, which are, in fact, the result of discrimination against women at different levels of the selection procedure – even if this discrimination is not necessarily a conscious act.

19.  In addition, the draft resolution submitted by the Committee on Legal Affairs and Human Rights is very widely worded, leaving it entirely to the (male dominated) Ad hoc Sub-Committee and the Committee on Legal Affairs and Human Rights to decide what the ‘exceptional circumstances’ allowing all-male candidate lists should comprise. Since both of these bodies consider that Malta’s current case poses such ‘exceptional circumstances’ – although Malta is a country with a population of nearly 400.000 with plenty of well-qualified female potential candidates, which also has the possibility of fielding a non-Maltese female candidate – one wonders which other countries would have the back-door opened to them to present all-male candidate lists, returning the Assembly to the status quo ante when it often could not elect a female judge even if it wanted to!”

28.  On 17 April 2007 the draft resolution was rejected by the Plenary Session of the Parliamentary Assembly by 41 votes to 17.

29.  An information document produced by the Sub-Committee on the Election of Judges to the European Court of Human Rights (AS/Jur/Cdh (2007) 05 of 22 October 2007) contains the following passages:

“Steps taken by the Assembly to improve the procedure for examining candidatures for the election of judges to the European Court of Human Rights

7.  The Assembly decided to improve its own procedure for choosing between the three candidates nominated by each Contracting Party. To this end, it adopted Resolution 1082 (1996) and Recommendation 1295 (1996) in April 1996 and Resolution 1200 (1999) in September 1999.

8.  In these texts, the Assembly expressed the view that it would be useful if the information to be provided by the candidates were presented on broadly similar lines to facilitate comparison between the candidates. For that reason a standard curriculum vitae was sent out (see appendix I to Resolution 1200 (1999)). The Assembly also decided to ask candidates to participate in a series of personal interviews. The Committee on Legal Affairs and Human Rights established a special ad hoc Sub‑Committee to conduct the interviews.

9.  The Assembly confirmed the system of interviews in its Resolution 1200 (1999) on the election of judges to the European Court of Human Rights. In its Recommendation 1429 (1999) it made proposals for nominating candidates at national level. By its Order 558 (1999), it instructed its Sub-Committee on the election of judges ‘to make sure that in future elections to the Court member states apply the criteria which it has drawn up for the establishment of lists of candidates, and in particular the presence of candidates of both sexes’.

10.  In January 2004, the Assembly adopted Resolution 1366 (2004) and Recommendation 1649 (2004). In these texts, it confirmed the necessity to keep the procedure of selection which had been set up. It also emphasised the need to receive candidates having all the required level to exercise the function of judge as well as the need for gender balance. In March 2005, Resolution 1366 (2004) was amended by Resolution 1426 (2005) by which single-sex lists of candidates would be considered if the sex is under-represented (under 40 % of judges). It accordingly decided to reject lists of candidates not fulfilling those criteria. This has in fact happened on some occasions.

Criteria recommended for submission of lists of candidates for the office of judge

11.  Paragraph 19 of Assembly Recommendation 1649 (2004) specifies:

‘In addition to the moral qualities and experience rightly expected of candidates, laid down in Article 21, paragraph 1, of the Convention, the Assembly recommends that the Committee of Ministers invite the governments of the member states to meet six other criteria before submitting lists of candidates for the office of judge in the European Court of Human Rights, namely to ensure:

i.  that a call for candidatures has been issued through the specialised press;

ii.  that candidates have experience in the field of human rights;

iii.  that every list contains candidates of both sexes ;

iv.  that the candidates have a sufficient knowledge of at least one of the two official languages;

v.  that the names of the candidates are placed in alphabetical order;

vi.  that as far as possible no candidate should be submitted whose election might result in the necessity to appoint an ad hoc judge’.

Results of the interviews

12.  The Sub-Committee considers the candidates not only as individuals but also with an eye to a harmonious composition of the Court, taking into account, for example, their professional backgrounds and a gender balance. It formulates a recommendation to the Bureau of the Assembly, which the Bureau forwards to the Assembly members and may decide to declassify (make public).

Election by the Assembly

13.  On the basis of the candidatures transmitted to it, the Assembly elects the judges to the European Court of Human Rights during its part-sessions. The candidate having obtained an absolute majority of votes cast is declared elected a member of the Court. If no candidate has obtained an absolute majority, a second ballot is held, after which the candidate who has obtained a relative majority of votes cast is declared elected. Election results are publicly announced by the President of the Assembly during the part-session.”

IV.  INTERNATIONAL INSTRUMENTS

30.  The United Nations Convention on the Elimination of All Forms of Discrimination against Women, which entered into force on 3 September 1981, contains the following provisions:

Article 4

“1.  Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.

...”

Article 7

“States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right:

...

(b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government;

...”

Article 8

“States Parties shall take all appropriate measures to ensure to women, on equal terms with men and without any discrimination, the opportunity to represent their Governments at the international level and to participate in the work of international organizations.”

31.  The Staff Regulations applicable to officials and other servants of the European Communities (Regulation No. 31 (EEC) of 1962, as amended) include the following provisions:

Article 1d

“...

2. With a view to ensuring full equality in practice between men and women in working life, which shall be an essential element to be considered in the implementation of all aspects of these Staff Regulations, the principle of equal treatment shall not prevent the institutions of the European Communities from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.

 3. The institutions shall determine, by agreement, after consulting the Staff Regulations Committee, measures and actions to promote equal opportunities for men and women in the areas covered by these Staff Regulations, and shall adopt the appropriate provisions notably to redress such de facto inequalities as hamper opportunities for women in these areas.

...”

V.   THE RULES IN FORCE WITHIN THE COUNCIL OF EUROPE

32.  Article 12, paragraph 1 of the Staff Regulations of the Council of Europe reads as follows:

“Recruitment should be aimed at ensuring the employment of staff of the highest ability, efficiency and integrity, with due regard to a fair geographical distribution of posts and positions, in accordance with relevant decisions of the Committee of Ministers. In addition, the Secretary General shall seek to ensure a fair distribution of appointments between the sexes.”

33.  Article 22 of the Council of Europe’s Regulations on appointments reads as follows:

“1.  In the event of equal merit between a woman and a man both of whom are candidates in an external recruitment or internal competition procedure, preference shall be given, notwithstanding the provisions of Article 21 paragraph 2, to the candidate of the sex which is under-represented in the grade and category to which the vacancy belongs.

2.  A sex is under-represented in relation to the other when the proportion of staff of that sex in the grade and category to which the vacancy belongs is below 40%.

...”

COMPARATIVE ANALYSIS

34.  The Court has analysed the provisions governing the composition of the following international courts: the International Court of Justice, the International Tribunal for the Law of the Sea, the International Criminal Court, the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the former Yugoslavia, the Court of Justice of the European Communities, the Inter‑American Court of Human Rights and the African Court on Human and Peoples’ Rights. The analysis reveals that, while all the systems employ geographical and legal criteria, representation on the basis of gender is less commonly advocated. Only the International Criminal Court and the African Court on Human and Peoples’ Rights have – non‑binding – rules aimed at promoting balanced representation of the sexes in their composition.

35.  Furthermore, the information provided by the governments of the Contracting States (see paragraph 4 above) shows that only three of them (Austria, Belgium and Latvia) have specific provisions in their legislation ensuring egalitarian representation in their Supreme and/or Constitutional Courts. However, some have legislation or action plans in place aimed at increasing the numbers of women in the public service in general and the Supreme and/or Constitutional Courts in particular.

THE COURT’S OPINION

I.  THE COURT’S ADVISORY JURISDICTION

36.  The Court observes first of all that its jurisdiction under Article 47 of the Convention is confined to “legal questions concerning the interpretation of the Convention and the protocols thereto”. It should be noted here that the restricting of advisory opinions to “legal questions” was stressed during the travaux préparatoires to Protocol No. 2. On that occasion it was decided to maintain the adjective “legal” in order to rule out any jurisdiction on the Court’s part regarding matters of policy (see paragraph 19 above). Of the governments that submitted observations, only the Austrian and Spanish Governments questioned the Court’s jurisdiction to give a ruling on the questions asked by the Committee of Ministers, since in their view these were of a political nature. The French Government, for their part, observed that “the Convention does not confer jurisdiction on the Court to assess the compatibility of Parliamentary Assembly resolutions with the Convention”. All the other governments either explicitly or implicitly recognised the Court’s jurisdiction in the present case.

37.  It transpires from the travaux préparatoires to Protocol No. 2 that the intention in giving the Court advisory jurisdiction was to confer on it “a general jurisdiction to interpret the Convention, which would therefore include matters arising out of the application of the Convention but not resulting from ‘contentious proceedings’” (see paragraph 18 above). The examples cited at the time to illustrate the type of questions which might fall within this general jurisdiction related mainly to procedural points concerning, among other subjects, the election of judges and the procedure followed by the Committee of Ministers in monitoring the execution of judgments.

38.  The Court notes that the first question asked is whether “a list of candidates for the post of judge at the European Court of Human Rights, which satisfies the criteria listed in Article 21 of the Convention, [can] be refused solely on the basis of gender‑related issues”. It seems clear that, in the context of the present request for an opinion, the “refusal” of a list by the Parliamentary Assembly amounts for the latter, legally speaking, to its refusing to elect a candidate from the list in accordance with Article 22 of the Convention and accordingly inviting the Contracting Party concerned to submit another, different list to it. The fact that, in practice, “refusal” of a list on the basis of gender-related considerations occurs before compliance with the criteria laid down by Article 21 § 1 has been checked by means, in particular, of the personal interviews (see paragraph 29 above), does nothing to alter this assessment. The question therefore concerns the rights and obligations of the Parliamentary Assembly in the procedure for electing judges, as derived from Article 22 in particular and from the Convention system in general. Accordingly, whatever its implications, it is of a legal character and as such falls within the scope of the Court’s jurisdiction under Article 47 § 1 of the Convention. Furthermore, it does not appear – nor has any government claimed – that the opinion requested concerns one of the matters excluded from the Court’s jurisdiction by the second paragraph of Article 47. Consequently, the Court has jurisdiction to answer the first question.

39.  Moreover, the Court considers it appropriate to give a ruling on this question in the interests of the proper functioning of the Convention system, as 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.

40.  The second question, meanwhile, is whether “[Parliamentary Assembly] Resolution 1366 (2004) and Resolution 1426 (2005) [are] in breach of the Assembly’s responsibilities under Article 22 of the Convention to consider such a list, or a name on such list, on the basis of the criteria listed in Article 21 of the Convention”. In so far as this question ultimately concerns the effects of the two Parliamentary Assembly resolutions in question, the Court has doubts as to whether it relates solely to “the interpretation of the Convention and the protocols thereto” within the meaning of Article 47 § 1. However, even assuming that it is competent to answer the second question, the Court considers that it is not necessary for it to do so, in view of the answer set out below to the first question.

II.  MERITS

41.  The Court reiterates that the election of judges is governed by Articles 21 § 1 and 22 of the Convention. The first of these provisions determines the qualifications which candidates for the post of judge at the Court must possess: they “shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence”. Article 22, meanwhile, lays down the procedure to be followed and stipulates that “[t]he judges shall be elected by the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes cast from a list of three candidates nominated by the High Contracting Party”.

42.  It is clear that the conditions laid down in Article 21 § 1 are mandatory and binding on all Contracting Parties in the same manner when it comes to selecting the candidates to be placed on the lists for submission to the Parliamentary Assembly. However, there is nothing to prevent Contracting Parties from taking account of additional criteria or considerations. These might include, for instance, an attempt to achieve a certain balance between the sexes or between different branches of the legal profession on a particular list or within the Court. Nevertheless, while considerations of this kind are legitimate, they cannot release Contracting Parties from the obligation to present a list of candidates each of whom fulfils all the conditions laid down in Article 21 § 1, which relate exclusively to candidates’ moral qualities and professional qualifications. Moreover, compliance with this requirement is also of considerable importance for the Court, in the sense that it is vital to its authority and the quality of its decisions that it be made up of members of the highest legal and moral standing.

43.  Further, the powers devolved to the Parliamentary Assembly by Article 22 entail both obligations and prerogatives. While it is clear that the Assembly is required to elect judges on the basis laid down by Article 22, it also has a certain latitude, in the absence of more detailed indications in that Article, when it comes to establishing the procedure for the election of judges. Thus, for instance, the Assembly, with this aim in mind, has devised a standard curriculum vitae for candidates, whom it also invites to take part in personal interviews before an ad hoc sub-committee set up for that purpose (see paragraph 29 above). In other words, the task of electing judges to the Court necessarily entails the ability to assess the candidates, reflected in particular in the ability to choose one candidate from the three nominated.

44.  In performing this task, the Parliamentary Assembly is bound first and foremost by Article 21 § 1. 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 § 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.

45.  It is obvious too that the Assembly may take account of additional criteria which it considers relevant for the purposes of choosing between the candidates put forward by a Contracting Party and may, as it has done in a bid to ensure transparency and foreseeability, incorporate those criteria in its resolutions and recommendations. Indeed, neither Article 22 nor the Convention system sets any explicit limits on the criteria which can be employed by the Parliamentary Assembly in choosing between the candidates put forward. Hence, it is the Assembly’s custom to consider candidates also “with an eye to a harmonious composition of the Court, taking into account, for example, their professional backgrounds and a gender balance” (see paragraph 29 above). Such rules undoubtedly have a certain influence on the approach taken by Contracting Parties in establishing their lists of candidates (see, in particular, the reply by the Committee of Ministers to Parliamentary Assembly Recommendation 1649 (2004), paragraph 24 above).

46.  Nevertheless, with a view to answering the first question asked by the Committee of Ministers, the Court must also determine whether the Assembly may reject a list on the ground that a condition not explicitly laid down by Article 21 § 1 has not been met, in this instance the condition whereby, in accordance with Parliamentary Assembly Resolutions 1366 (2004) and 1426 (2005), each list should include at least one candidate of the sex under-represented in the Court.

47.  In that connection the Court notes that the inclusion of a member of the under‑represented sex is not the only criterion applied by the Assembly which is not explicitly laid down in Article 21 § 1. The same is true of the criterion that candidates should have “sufficient knowledge of at least one of the two official languages” (see Resolution 1366 (2004), point 3) and of the criteria listed in the report of the Committee on Legal Affairs and Human Rights concerning Resolution 1366 (see paragraph 21 above). In the Court’s view, however, the latter criteria can be legitimately considered to flow implicitly from Article 21 § 1 and, in a sense, to explain it in greater detail. Hence, for example, a sufficient knowledge of at least one of the official languages is necessary in order to make a useful contribution to the Court’s work, given that the Court uses only those two languages (Rule 34 § 1 of the Rules of Court).

48.  However, in the Court’s view, what distinguishes the criterion relating to a candidate’s sex from the criteria referred to in the preceding paragraph is the lack of an implicit link with the general criteria concerning judges’ qualifications laid down in Article 21 § 1. The question therefore arises whether it can none the less constitute grounds for rejection of a list by the Parliamentary Assembly.

49.  It should be noted in that regard that the criterion in question derives from a gender-equality policy which reflects the importance of equality between the sexes in contemporary society and the role played by the prohibition of discrimination and by positive discrimination measures in attaining that objective. The measures concerned in the present case certainly fall into the latter category. Moreover, there is far‑reaching consensus as to the need to promote gender balance within the State and in the national and international public service, including the judiciary. This is demonstrated in particular not just by the relevant Parliamentary Assembly resolutions and recommendations but also by a range of international instruments such as the United Nations Convention on the Elimination of All Forms of Discrimination against Women (see paragraph 30 above) and by the staffing policy of a large number of international organisations including the Council of Europe and the European Union (see paragraphs 31 to 33 above). Although only a minority of States have adopted specific rules aimed at ensuring a certain balance between the sexes in the courts, a great many of them seek to promote such a balance through appropriate policies. The same trend can be observed in the international courts (see paragraphs 34 and 35 above) and is also reflected in Rules 14, 15 § 3 and 25 § 2 of the Rules of Court.

50.  As regards the application of this criterion to the Court, it should be observed that the Committee of Ministers “fully shares the Assembly’s determination to secure a proper balance of the sexes in the composition of the Court and agrees therefore that lists of candidates should as a general rule contain at least one candidate of each sex” (see CM/AS(2005)Rec1649 final, paragraph 24 above). However, the Committee of Ministers chose not to act upon the Assembly’s proposals to amend Article 22 of the Convention to ensure that the lists contained at least one candidate of each sex. It took the view that “circumstances may exceptionally arise in which, as a result of the correct application of the other five criteria, 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. In this context, the Committee draws attention to the danger that such an obligation could under certain circumstances give rise to difficulties in satisfying the requirements of Article 21 of the Convention”. The same concern is expressed in the explanatory report on Protocol No. 14 (see paragraph 25 above).

51.  In the Court’s view, the Contracting Parties, which alone have the power to amend the Convention, have thus set the boundaries which the Assembly may not overstep in its pursuit of a policy aimed at ensuring that the lists include a candidate of the under-represented sex: such a policy must not have the effect of making it more difficult for Contracting Parties to put forward candidates who also satisfy all the requirements of Article 21 § 1, which are accordingly to be given primary consideration. That is why the Committee of Ministers expressly invited the Assembly “to consider the possibility of modifying its own rules in order to allow exceptional derogation from the rule where the authorities of the Contracting Party concerned present convincing arguments to the Committee of Ministers and the Assembly to the effect that, in order to respect the requirements concerning the individual qualifications of candidates, it could not do otherwise than to submit a single-sex list” (see paragraph 24 above). In other words, the Contracting Parties have, admittedly, accepted the principle of nominating candidates of the sex under‑represented at the Court, but not without provision being made for derogations from the rule. The obligation is therefore one of means, not of outcome.

52.  Such a situation may arise in particular for States where the number of persons engaged in the legal profession is small. These States must not be placed in a position where, in order to fulfil the criterion concerning the sex of candidates, they can only nominate candidates who satisfy the criteria of Article 21 § 1 if they choose non‑nationals. Although useful in certain cases the latter option, were it to be imposed, would need to be approached with caution from the point of view of respecting States’ sovereignty in the matter. It would be unacceptable for a State to be forced to nominate non‑national candidates solely in order to satisfy the criterion relating to a candidate’s sex, which is not enshrined in the Convention. Furthermore, this would be liable to produce a situation where the elected candidate did not have the same knowledge of the legal system, language or indeed cultural and other traditions of the country concerned as a candidate from that country. Indeed, the main reason why one of the judges hearing a case must be the “national judge”, a rule that dates back to the beginnings of the Convention and is today enshrined in Article 27 § 2, is precisely to ensure that the judges hearing the case are fully acquainted with the relevant domestic law of the respondent State and the context in which it is set. Accordingly, it would be incompatible with the Convention to require a State to nominate a candidate of a different nationality solely in order to achieve a gender balance.

53.  Accordingly, although the aim of ensuring a certain mix in the composition of the lists of candidates is legitimate and generally accepted, it may not be pursued without provision being made for some exceptions designed to enable each Contracting Party to choose national candidates who satisfy all the requirements of Article 21 § 1. Of course, the precise nature and scope of such exceptions have yet to be defined.

54.  In the light of the foregoing, the Court considers that the first question asked by the Committee of Ministers, couched as it is in general terms, does not lend itself to a straightforward “yes” or “no” answer. In any event it is clear that, in not allowing any exceptions to the rule that the under‑represented sex must be represented, the current practice of the Parliamentary Assembly is not compatible with the Convention: where a Contracting Party has taken all the necessary and appropriate steps with a view to ensuring that the list contains a candidate of the under‑represented sex, but without success, and especially where it has followed the Assembly’s recommendations advocating an open and transparent procedure involving a call for candidatures (see paragraph 22 above), the Assembly may not reject the list in question on the sole ground that no such candidate features on it. Accordingly, exceptions to the principle that lists must contain a candidate of the under-represented sex should be defined as soon as possible.

FOR THESE REASONS, THE COURT, UNANIMOUSLY

1.Decides that it has jurisdiction to answer the first question and that it is not necessary for it to answer the second;

2.Delivers the opinion that the first question should be answered by reference to the observations outlined above.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 12 February 2008.

Erik FriberghJean-Paul Costa
RegistrarPresident

 

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