Advisory Opinion (no. 2) 22.01.2010

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
(No. 2)

Strasbourg, 22 January 2010

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 (No. 2)

STRASBOURG 

22 January 2010

This opinion is final but 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 (No. 2)

Strasbourg 

22 January 2010

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

Jean-Paul Costa, President,

Christos Rozakis,

Nicolas Bratza,

Peer Lorenzen,

Françoise Tulkens,

Josep Casadevall,

Ireneu Cabral Barreto,

Boštjan M. Zupančič,

Vladimiro Zagrebelsky,

Elisabeth Steiner,

Elisabet Fura,

Ljiljana Mijović,

David Thór Björgvinsson,

Danutė Jočienė,

George Nicolaou,

Mirjana Lazarova Trajkovska,

Nona Tsotsoria, judges,

and Erik Fribergh, Registrar,

Having deliberated in private on 4 November 2009 and 13 January 2010,

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

PROCEDURE

1.  By letter of 15 July 2009 to the President of the European Court of Human Rights (“the Court”), the Chairperson of the Ministers' Deputies of the Council of Europe requested the Court, under Article 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), to give an advisory opinion on the questions set out below.

2.  In accordance with Rule 84 § 1 of the Rules of Court, the Registrar sent a copy of the request to all 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 in accordance with the provisions of Article 27 § 3 of the Convention and Rule 24.

3.  By letters of 17 July 2009 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 25 September 2009 (Rule 84 § 2 and Rule 85 § 1). The governments of sixteen Contracting Parties (the Czech Republic, Estonia, France, Greece, Ireland, Malta, Moldova, the Netherlands, Poland, Portugal, Russia, Serbia, Slovakia, Sweden, Ukraine and the United Kingdom), and also the Parliamentary Assembly, submitted written comments within the time allowed.

4.  Copies of the comments and replies received (see paragraph 3 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).

5.  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

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

1.

(a)  Can a list of three candidates, nominated by a High Contracting Party for election as a judge to the European Court of Human Rights in respect of the High Contracting Party and submitted to the Parliamentary Assembly, be withdrawn and replaced with a new list of three candidates by that High Contracting Party? If yes, is there any time limit?

(b)  Can candidates for the post of judge at the European Court of Human Rights be considered as nominated by a High Contracting Party within the meaning of Article 22 of the European Convention on Human Rights if the list containing their names has been withdrawn by that High Contracting Party?

(c)  Is the Parliamentary Assembly obliged to consider a list of candidates submitted by a High Contracting Party which replaces a list previously submitted but withdrawn by that High Contracting Party?

2.

(a)  If one or more candidates on a list of candidates submitted to the Parliamentary Assembly by a High Contracting Party withdraw(s) before the Parliamentary Assembly has voted on the list, is that High Contracting Party obliged under the European Convention on Human Rights to submit an additional candidate or candidates to complete the list or is it entitled to submit a new list?

(b)  Are the conditions in paragraphs 1 and 2 of the Appendix to Resolution 1432 (2005) of the Parliamentary Assembly of the Council of Europe in breach of the Assembly's responsibilities under Article 22 of the European Convention on Human Rights to consider a list, or a name on such a list, on the basis of the criteria listed in Article 21 of the Convention?

BACKGROUND TO THE REQUEST FOR AN OPINION

7.  The present request for an opinion arose out of an exchange of letters between the Ukrainian authorities and the Parliamentary Assembly on the composition of the list of candidates for election as a judge of the Court in respect of Ukraine. The events that gave rise to the exchange may be summarised as follows.

8.  On 29 April 2007 the Ukrainian authorities sent the Council of Europe a list of three candidates for the post of judge at the Court, featuring the names of Mr S. Holovaty, Mr V. Marmazov and Ms G. Yudkivska.

9.  On 24 July 2007 the Secretary General of the Parliamentary Assembly invited the three candidates to an interview with the Assembly's Sub-Committee on the Election of Judges to the European Court of Human Rights. On 17 September 2007 the sub-committee interviewed two of the three candidates. However, it was unable to interview the third candidate, Mr V. Marmazov, who subsequently announced, in a letter of 28 September 2007, that he had withdrawn his candidature “due to ... personal matters”.

10.  On 14 September 2007, shortly before the date of the interviews, the Permanent Representative of Ukraine had transmitted to the Council of Europe a decree and a letter from the President of Ukraine, Mr V. Yushchenko, announcing the withdrawal of the list of candidates in respect of Ukraine on the ground that the list did not “correspond to the requirements of Article 21 of the Convention and ... recommendations of the Council of Europe”. The letter added that “significant procedural violations [had been] committed”, that “the transparent voting procedure for the candidates [had] not been ensured” and that the Council of Judges of Ukraine had considered that one of the candidates had “no high moral character”.

11.  On 1 October 2007 the Assembly, meeting in plenary session, endorsed the conclusion of the Sub-Committee on the Election of Judges to the Court and the Bureau of the Assembly that there were no “exceptional circumstances”, as required by paragraph 1 of the Appendix to Resolution 1432 (2005), to justify the withdrawal of the Ukrainian list. On 2 October 2007 the President of the Assembly, Mr R. van der Linden, notified President Yushchenko and the Ukrainian Minister of Justice, Mr O. Lavrynovych, of that decision, asking them to “complete the list by replacing the candidate who withdrew his candidature”, namely Mr Marmazov.

12.  On 3 October 2007 the Ukrainian Minister of Justice informed the President of the Assembly that the Ukrainian Government had decided “to replace the candidate who withdrew his candidature, namely Mr Vasyl Marmazov, with [the] candidature of Mr Stanislav Shevchuk”. However, on 10 October 2007, at a meeting of the Ministers' Deputies, the Permanent Representative of Ukraine stated that his government did not accept the Assembly's conclusion that there were no exceptional circumstances justifying the withdrawal of the list. He argued that the withdrawal “fully correspond[ed] to Article 22 of the ECHR and to the sovereign right of the member state to submit and to withdraw the nominated candidates”. The Permanent Representative also indicated that his government intended to submit a new list to the Council of Europe.

13.  By letter of 5 November 2007 Mr S. Shevchuk informed the Assembly that he could not but “comply with” the decree of the President of Ukraine withdrawing the list and opening a new procedure for selecting candidates (see paragraph 9 above). He thereby declined the invitation that had been addressed to him in the meantime to attend an interview with the sub-committee.

14.  On 20 December 2007 the Permanent Representative of Ukraine submitted a new list of candidates, featuring the names of Mr V. Marmazov, Mr S. Shevchuk and Ms G. Yudkivska. By letter of 21 December 2007 the President of the Assembly, Mr van der Linden, replied by reiterating the position of the Bureau of the Assembly that it expected the Ukrainian authorities “to submit the name of a new third candidate to complete the list and not an entirely new list”.

15.  By letter of 9 July 2008 to the President of the Assembly, Mr de Puig, the Ukrainian Minister of Justice mentioned the possibility of requesting an advisory opinion from the Court.

16.  By letter of 15 June 2009 to the Chairman of the Committee of Ministers, the Ukrainian Minister for Foreign Affairs asked the Committee of Ministers to request an advisory opinion from the Court, under Article 47 of the Convention, on the respective powers of the Parliamentary Assembly and the High Contracting Parties to the Convention in the procedure for submitting a list of candidates in accordance with Article 22 of the Convention.

17.  In Recommendation 1875 (2009), adopted on 23 June 2009, the Assembly recommended that the Committee of Ministers seek an advisory opinion from the Court; the request “should not only deal with the purported right of a state to withdraw a list of candidates, once submitted, but also ought to cover the issue of the conformity, with the European Convention on Human Rights, of Ukraine's refusal to provide the name of a third candidate”.

18.  At their 1063rd meeting, held on 8 and 9 July 2009, the Ministers' Deputies decided to request an advisory opinion from the Court on the questions set out in paragraph 6 above.

RELEVANT TEXTS

I.  THE CONVENTION

19.  The request from the Committee of Ministers, submitted in accordance with Article 47 of the Convention, concerns Article 22 of the Convention. These two Articles provide:

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.”

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.”

20.  In addition, Article 21 § 1 of the Convention, concerning the criteria for office as a judge, and Article 32 provide:

Article 21 § 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.”

Article 32
Jurisdiction of the Court

“1.  The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided in Articles 33, 34 and 47.

2.  In the event of dispute as to whether the Court has jurisdiction, the Court shall decide.”

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

21.  Resolution 1432 (2005) of the Parliamentary Assembly and the Appendix thereto read as follows:

“1.  The Bureau of the Parliamentary Assembly instructed the Committee on Rules of Procedure and Immunities on 6 November 2002, in accordance with Rule 65.2 of the Assembly's Rules of Procedure, to examine the procedure for the election of judges to the European Court of Human Rights with a view to proposing changes to the rules and regulations.

2.  Consequently, the Assembly decides to add the following words at the end

i.  of Rule 40.b of the Rules of Procedure:

'in the event of a tie-vote between candidates in the second ballot, successive ballots shall be held until one candidate obtains a relative majority';

ii.  of Rule 47.4 of the Rules of Procedure:

'However, only members of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) and members of the Ad hoc Sub-Committee on the Election of Judges to the European Court of Human Rights may attend meetings of their respective committees'.

3.  Furthermore, the Assembly approves the appended modalities for the election procedure of judges to the European Court of Human Rights and of the Council of Europe Commissioner for Human Rights.

4.  The Assembly decides that these changes shall enter into force as from their adoption by the Assembly.

Appendix to Resolution 1432 (2005)

Modalities for the election procedure of judges to the European Court of Human Rights and the Council of Europe Commissioner for Human Rights

1.  In principle, the list of candidates for the election of judges, once submitted to the Parliamentary Assembly, should not be modified. The Assembly shall only exceptionally accept partial or complete modification of the list on the initiative of the government concerned.

2.  The Assembly shall interrupt the procedure if one of the three candidates on a list for the post of judge or Commissioner for Human Rights withdraws before the first ballot. In such cases, it shall ask the government concerned (in respect of judges) or the Committee of Ministers (in respect of the Commissioner) to complete the list of candidates.

3.  The Assembly confirms its practice of listing candidates for the post of judge in alphabetical order on the ballot paper. This shall also remain the practice in those cases where the government, disregarding the Assembly's position as set out in Recommendations 1429 (1999) and 1649 (2004), has expressed a preference for one of the candidates. Any such expressions of governmental preference shall play no role in the deliberations of the Ad hoc Sub-Committee on the Election of Judges to the European Court of Human Rights, where only the criteria provided for in the European Convention on Human Rights and those established by the Assembly itself shall be relevant.

4.  Furthermore, the Assembly confirms that the candidates for the post of Council of Europe Commissioner for Human Rights shall be listed in alphabetical order on the ballot paper.”

22.  The report of the Committee on Rules of Procedure and Immunities concerning Resolution 1432 (2005) and the Appendix thereto, adopted on 21 December 2004, includes the following passages:

“4.  In connection with elections held by the Parliamentary Assembly in 2002 several questions were raised:

i.  Is it possible and until when for Governments to withdraw a list of candidates for the post of judge to the European Court of Human Rights?

ii.  What happens if one of the three candidates on a list for the post of judge or Council of Europe Commissioner for Human Rights withdraws before the first ballot?

...

5.  Most of these matters were dealt with in a legal opinion of the Secretary General of the Council of Europe (AS/Bur (2002) 77), submitted to the Bureau of the Assembly on 6 November 2002. This opinion had been requested following a problem during the election of a judge to the European Court of Human Rights in September 2002 ...

C.  WITHDRAWAL OF THE LIST OF CANDIDATES FOR THE POST OF JUDGE TO THE EUROPEAN COURT OF HUMAN RIGHTS BY THE GOVERNMENT CONCERNED

6.  A list may be withdrawn (or completely modified) by the respective government either on its own initiative or following a recommendation of the Assembly. Such withdrawal already has occurred in the past, in particular before the candidates were interviewed by the Assembly's competent ad hoc sub-committee and also after that interview, but before the first ballot. In another case a new list was submitted after the second ballot had resulted in a tie-vote and the election procedure had been interrupted.

7.  The committee considers that after its submission to the Assembly a list of candidates should only exceptionally be withdrawn on the initiative of the respective government (e.g. when the candidates no longer are ready to stand for the election).

D.  WITHDRAWAL OF CANDIDATES BEFORE THE FIRST BALLOT

8.  If one of the three candidates on a list for the post of judge or Commissioner for Human Rights withdraws before the first ballot, the Assembly should interrupt the procedure. It should ask the government concerned ... to complete the list of candidates.”

23.  The legal opinion of the Secretary General of the Council of Europe, mentioned in the report referred to in the previous paragraph, contains the following passage:

“Since no judge has so far been validly elected in accordance with Article 22 of the ECHR, [the Contracting State] remains free to withdraw the list and present a new list of three candidates. In this context, it should be recalled that neither the Committee of Ministers nor the Parliamentary Assembly have raised any objections against the proposed candidates. The fact that there was a tie between the two best placed candidates at the second ballot is a fortuitous event which does not as such put into question the aptitude or qualifications of the candidates presented by [the Contracting State].”

24.  Resolution 1646 (2009) of the Parliamentary Assembly reads as follows:

“1.  The Parliamentary Assembly, whose task, by virtue of Article 22 of the ... Convention ..., is to elect judges of the highest calibre to the European Court of Human Rights (the Court) from a list of three candidates nominated by states parties, underlines the importance of appropriate national selection procedures in order to ensure and reinforce the quality, efficacy and authority of the Court.

2.  Despite a marked improvement in national selection procedures in several countries, there is still significant variance as concerns fairness, transparency and consistency. Referring to its Recommendation 1649 (2004) on candidates for the European Court of Human Rights, the Assembly yet again reiterates that the process of nominating candidates to the Court must reflect the principles of democratic procedure, transparency and non-discrimination. In the absence of a real choice among the candidates submitted by a state party to the Convention, the Assembly shall reject lists submitted to it. In addition, in the absence of a fair, transparent and consistent national selection procedure, the Assembly may reject such lists.

3.  In addition to the criteria set out in Article 21, paragraph 1, of the Convention, the Assembly has introduced linguistic requirements based on Article 21, paragraph 1, of the Convention, the need for gender balance, as well as other requisites, such as the standard curriculum vitae for candidates. Before proceeding to the election of judges, the Assembly also invites candidates to take part in personal interviews before a sub-committee set up for that purpose.

4.  Referring to the above-mentioned Recommendation 1649 (2004), the Assembly recalls that in addition to the criteria specified in Article 21, paragraph 1, of the Convention, as well as the gender requirement, states should, when selecting and subsequently nominating candidates to the Court, comply with the following requirements:

4.1.  issue public and open calls for candidatures;

4.2.  when submitting the names of candidates to the Assembly, describe the manner in which they were selected;

4.3.  transmit the names of candidates to the Assembly in alphabetical order;

4.4.  candidates should possess an active knowledge of one official language of the Council of Europe and a passive knowledge of the other ...;

4.5.  that, if possible, no candidate should be submitted whose election might result in the necessity to appoint an ad hoc judge.

5.  The Assembly also strongly urges the governments of member states which have still not done so, to set up – without delay – appropriate national selection procedures to ensure that the authority and credibility of the Court are not put at risk by ad hoc and politicised processes in the nomination of candidates. Furthermore, it invites the governments of member states to ensure that the selection bodies/panels (and those advising on selection) are themselves as gender-balanced as possible.”

The Appendix to Resolution 1646 (2009) contains an indicative timetable for the election of judges. According to the timetable, member States' governments should be allowed three months to organise an open call for candidatures and to transmit a list of three candidates to the Parliamentary Assembly. The Assembly then has a further three months for its own election procedure, although this period may be longer, depending on the scheduling of its part-sessions.

25.  The report of the Committee on Legal Affairs and Human Rights concerning Recommendation 1875 (2009) included a legal opinion prepared upon the request of the Parliamentary Assembly by Mr L. Wildhaber and Mr L. Caflisch, respectively former President and former judge of the Court. This legal opinion contains the following passages:

“24.  What is the main purpose and object of the ECHR, especially as far as Ukraine is concerned? Undoubtedly, that object is the proper functioning of the system of protection created by it, particularly of the mechanism of individual applications established by its Article 34. This is particularly true for Ukraine, one of the Court's main 'clients' (8,250 pending applications out of a total of 97,000, which means that Ukraine is the fourth-largest user). The longer the absence of an Ukrainian judge on the bench, the longer the Court's inactivity regarding such applications and, consequently, the weaker the protection of the human rights alleged to have been infringed by Ukraine. For this reason, recourse to Article 31.1 of the 1969 Vienna Convention, and consideration of the 'object and purpose' of the ECHR and especially of its Article 22, strongly suggest that the latter should be interpreted as not authorising the withdrawal of the Ukrainian list at any time if the latter is already in the hands of the Assembly.

25.  The basic rule under Article 22 ECHR must be that once a government has submitted a list of candidates to the Assembly, there is a transfer of competence to the Assembly. There may be circumstances, however, where there are good reasons for the withdrawal of a list, provided the government concerned acts promptly, explains its action adequately and adduces specific reasons. This is why it seems desirable to allow for the withdrawal of a list in 'exceptional circumstances', as is done in the Appendix to the Assembly Resolution 1432 (2005). However, no such 'exceptional circumstances' can be made out in the instant case.”

COMPARATIVE ANALYSIS

26.  The Court has analysed the provisions governing the procedure for nominating and electing candidates for posts as judges at 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 Special Court for Sierra Leone, the Court of Justice and the General Court of the European Union, the Court of the European Free Trade Association, the Inter-American Court of Human Rights, the African Court of Human and Peoples' Rights and the Permanent Court of Arbitration.

27.  The analysis reveals that the rules examined contain very little information on the withdrawal or amendment of nominations. They do not specify whether a list that has already been submitted to the voting body may be amended, or, therefore, up to what point and to what extent an amendment is possible.

28.  However, mention should be made of two relevant rules. The first is set out in Article 7 of the Statute of the International Court of Justice, which provides that only those persons who have been placed on the list of nominations prepared by the Secretary-General of the United Nations are eligible. The second derives from a combination of provisions of resolutions adopted by the Assembly of States Parties to the Rome Statute of the International Criminal Court, namely paragraphs 3 and 4 of Resolution ICC-ASP/1/Res.2 and paragraph 3 of Resolution ICC-ASP/3/Res.6. It provides that nominations received by the Secretariat before or after the twelve-week nomination period will not be considered.

THE COURT'S OPINION

I.  THE COURT'S ADVISORY JURISDICTION

29.  The Court observes at the outset 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 on 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. It also transpires from the travaux préparatoires 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'”. 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 (see the 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 [GC], §§ 36-37, ECHR 2008-..., hereafter “the first advisory opinion”).

30.  With regard to questions 1.a, 1.b, 1.c and 2.a, all the governments who submitted comments maintained that the Court had jurisdiction to answer those questions. With regard to question 2.b, the French Government contested the Court's jurisdiction, submitting that the Convention did not empower the Court to assess the compatibility of a Parliamentary Assembly resolution with the provisions of the Convention. On the same question, the Polish and Slovakian governments left the matter to the Court's discretion, referring to the observation it had made in its first advisory opinion (cited above, § 40).

A.  Questions 1.a, 1.b, 1.c and 2.a

31.  The Court observes firstly that questions 1.a, 1.b, 1.c and 2.a indisputably concern 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 in general. These questions also relate to the division of powers between the Contracting States and the Parliamentary Assembly in the context of that procedure. As the Court has already had occasion to point out in its advisory opinion cited above, the questions are of a legal character and as such fall within the scope of its jurisdiction under Article 47 § 1 of the Convention (see the first advisory opinion, cited above, § 38).

B.  Question 2.b

32.  Question 2.b, meanwhile, relates to whether “the conditions in paragraphs 1 and 2 of the Appendix to Resolution 1432 (2005) of the Parliamentary Assembly of the Council of Europe” are “in breach of the Assembly's responsibilities under Article 22 of the European Convention on Human Rights to consider a list, or a name on such a list, on the basis of the criteria listed in Article 21 of the Convention”.

33.  The Court considers that, in the final analysis, this question concerns the compatibility with the Convention of a Parliamentary Assembly resolution, or, more precisely, certain of its provisions. It notes that in its advisory opinion of 12 February 2008 on a similar question (the compatibility of two Parliamentary Assembly resolutions with the provisions of the Convention), it expressed doubts as to its advisory jurisdiction in the matter. Finding that, in the circumstances before it at the time, it was not necessary to answer that question, it did not examine it any further (see the first advisory opinion, cited above, § 40).

34.  The Court does not exclude the possibility that it might, in certain circumstances, be called upon to interpret one or more provisions of an instrument such as the one cited in this instance in order to clarify its answers to questions on which an advisory opinion has been sought from it. It cannot, however, express a view on the compatibility with the Convention of such provisions themselves. Indeed, this part of the request is not aimed at obtaining an advisory opinion on legal questions concerning “the interpretation of the Convention and the protocols thereto” within the meaning of Article 47 § 1. In any event, the possible legal implications of the application of the relevant provisions of Resolution 1432 (2005) will be examined in the context of the answers to the other questions put to the Court by the Committee of Ministers.

II.  MERITS

35.  The Court reiterates at the outset that the election of the judges constituting it is governed by Article 21 § 1 and Article 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 states 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”.

36.  Before examining the questions put to it by the Committee of Ministers, the Court considers it appropriate in this context to reiterate three general principles that should underlie the opinion it has been asked to give.

37.  The first concerns the aim which the High Contracting Parties set themselves through the Convention, namely to provide effective protection of human rights (see the Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, § 5, Series A no. 6). This means that the provisions of the Convention – including those relating to the organisation and functioning of the Court – must be interpreted in such a way as to ensure their effectiveness and, in the context of Articles 21 and 22, to ensure the prompt filling of all vacancies in the composition of the Court. The Court notes that under Article 27 § 2 of the Convention, judgments cannot be adopted without the participation of the judge elected in respect of the State Party concerned. Even though an ad hoc judge may be appointed, a prolonged vacancy might undermine the effectiveness of that provision.

38.  The second principle to be observed is the need to ensure the authority and the proper functioning of the Court (see the first advisory opinion, cited above, § 44). This entails, among other things, interpreting these provisions in a way that best serves the preservation of the independence and impartiality both of the Court and of its judges. To that end, Article 21 § 1 and Article 22 of the Convention are intended to ensure the election, as members of the Court, of judges who are of high moral character and possess the qualifications required for appointment to high judicial office.

39.  The third fundamental principle in this sphere is the balance and division of powers between the High Contracting Parties and the Parliamentary Assembly under Article 22 of the Convention. By virtue of that provision, each High Contracting Party must nominate candidates who each satisfy all the criteria laid down in Article 21 § 1; the Assembly, meanwhile, has the task of electing a judge from among them. The system thereby established seeks to ensure that the entities involved – the State concerned and the Assembly – enjoy a certain autonomy, within the limits of their respective powers, allowing them to determine how the procedural rules laid down in Article 22 are to be applied (see the first advisory opinion, cited above, §§ 43-44).

40.  The Court will examine the questions put by the Committee of Ministers in the light of these three fundamental principles.

A.  Question 1.a

41.  Question 1.a concerns the possibility for a High Contracting Party to withdraw a list of candidates for election as a judge at the Court and replace it with a new list of three candidates. The question also asks whether, should such a possibility exist, it is subject to a time-limit.

42.  The governments who submitted comments all took the view that the High Contracting Parties were entitled to withdraw a list of candidates already submitted to the Assembly, subject to compliance with certain conditions, for example, as some of them contended, allowing the Assembly sufficient time before the election to undertake a thorough examination of the candidates put forward on the new list. Some governments underlined the discretion allowed to High Contracting Parties as far as the choice of the candidates was concerned and contended that such discretion did not interfere with the powers of the Assembly. Some governments further submitted that replacement of a list could occur until the date of the vote by the Assembly. Most governments agreed that the right to withdraw a list should only be exercised in exceptional circumstances; however, some governments submitted that it was for the High Contracting Parties to decide when such exceptional circumstances existed.

43.  The Court reiterates that 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 (see the first advisory opinion, cited above, § 43). Mutatis mutandis, the High Contracting Parties likewise have a certain latitude in discharging their obligations under Article 22 § 1 in fine (see paragraph 39 above).

44.  However, none of the entities involved in the procedure for electing judges – the High Contracting Parties and the Parliamentary Assembly – may exercise the powers they enjoy in this matter to the detriment of the others' powers.

45.  It is therefore in the first place for the High Contracting Parties, in exercising their powers, to take appropriate measures, including at domestic level, to ensure that the Parliamentary Assembly is presented with a list of candidates who each satisfy all the conditions laid down in Article 21 § 1 of the Convention (see the first advisory opinion, cited above, § 42). Within the framework thus defined by the Convention, the High Contracting Parties have complete latitude in constituting their lists.

46.  The Court considers that the possibility for the High Contracting Parties, during the initial period of the procedure, to withdraw and/or replace a list of candidates – completely or partially – forms part of the autonomy they enjoy, the only restriction being the obligation not to hinder the normal course and the timing of the procedure for election by the Parliamentary Assembly.

47.  The High Contracting Parties may therefore, in exercising their sovereign power, decide – for reasons of their own – to withdraw lists of candidates for the post of judge at the Court. It is nevertheless appropriate, in the interests of legal certainty and the transparency and efficacy of the election procedure, that a time-limit should be set for doing so. Beyond that limit, the High Contracting Parties will no longer be entitled to withdraw the lists. Therefore, unless a list is rejected by a competent body of the Council of Europe on the ground that one or more candidates do not fulfil the criteria laid down in Article 21 § 1, such a time-limit should put an end to the High Contracting Parties' power of withdrawal. Exceptional circumstances outside the control of the High Contracting Parties may, however, reduce the number of candidates on the list and require the High Contracting Parties to fill a vacancy (see, in this connection, paragraph 51 below).

48.  The Court notes in this regard that it would be scarcely compatible with the normal conduct of the election procedure, which is essential for the proper functioning of the Convention system, to allow the High Contracting Parties to withdraw a list, without any restrictions or conditions, once it has been submitted to the Parliamentary Assembly. It should be emphasised in this connection that the lists are submitted to the Assembly following a national selection procedure which must enable the High Contracting Parties to discharge their obligation to put forward candidates who each satisfy all the criteria laid down in Article 21 § 1 of the Convention (see paragraphs 24 and 45 above and the first advisory opinion, cited above, § 42). The Court assumes that the member States would have organised their own selection procedures in such a way as to allow them to choose suitably qualified candidates. Any later possibility of withdrawal could hinder the normal course and timing of the procedure for election by the Parliamentary Assembly. In the Court's opinion, it is thus reasonable for the time-limit for withdrawal of a list to coincide with the deadline set for the High Contracting Parties to submit the lists to the Parliamentary Assembly.

49.  In conclusion, the Court's answer to question 1.a is the following. The High Contracting Parties may withdraw and replace a list of candidates for the post of judge at the Court, 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.

B.  Questions 1.b and 1.c

50.  The answer to these questions flows from the answer to the previous question. Question 1.b should therefore be answered as follows: 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 determined in paragraph 48 above. By the same logic, question 1.c should be answered as follows: candidates on the new list must be considered by the Parliamentary Assembly if the previous list was withdrawn before the time-limit determined in paragraph 48 above.

C.  Question 2.a

51.  The contingency envisaged by this question is the withdrawal of one or more candidates on a list submitted to the Assembly by a High Contracting Party before the Assembly has conducted a final vote on that list. Such a situation must be due to exceptional circumstances outside the control of the High Contracting Party that submitted the list. The question asked is whether, in such an event, the High Contracting Party must be restricted to completing the list by replacing any absent candidates, or whether it is entitled to submit an entirely new list.

52.  The governments who submitted comments were generally of the opinion that, in such circumstances, the High Contracting Parties should be able to submit a new list and should not have to confine themselves to completing the existing list. However, two Governments – those of the Netherlands and Serbia – observed that where such a situation arose, it would be more advisable, for reasons relating to the effectiveness of the system, to complete the list by replacing any absent candidates.

53.  The Court observes firstly that the contingency envisaged by this question involves a legal fact – the withdrawal of one or two candidates – arising outside the control of the authorities of the State in question.

54.  Referring to the considerations supporting its answer to question 1.a, the Court considers that a distinction should be made according to whether the withdrawal takes place before or after the time-limit determined in paragraph 48 above.

55.  If the withdrawal occurs before the time-limit, the High Contracting Parties should have the possibility of either replacing only absent candidates or submitting a new list of three candidates. This choice forms part of the autonomy enjoyed by States in deciding on the candidates to put forward for election by the Assembly.

56.  If, however, the withdrawal occurs after the time-limit in question, the High Contracting Parties should no longer be entitled to submit an entirely new list, for the reasons set out above (see paragraphs 47 and 48). In such circumstances, the High Contracting Party concerned will therefore have to be restricted to replacing any absent candidates.

57.  The Court's answer to question 2.a is therefore the following. 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.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Decides that it has jurisdiction to answer questions 1.a, 1.b, 1.c and 2.a;

2.  Decides that question 2.b is not within its competence as defined in Article 47 of the Convention;

3.  Delivers the opinion that questions 1.a, 1.b, 1.c and 2.a should be answered by reference to the reasoning set out in paragraphs 49, 50 and 57 above.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 22 January 2010.

Erik Fribergh Jean-Paul Costa
RegistrarPresident

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