This guest post was written by Kanstantsin Dzehtsiarou, Senior Lecturer in Law at the University of Surrey.
The Council of Europe has recently announced a vacant position for Registrar of the European Court of Human Rights. For the last ten years, Erik Fribergh has been Registrar of the Court. Before that, he worked as a Deputy Registrar and Section Registrar of the Court. His successful career in the Court lasted for more than 30 years and he clearly represents the institutional memory of the Court. His life in the Court highlights the crucial importance of the Registry of the Court and the position of Registrar for the functioning of the ECtHR. This short comment aims to highlight some preliminary observations on the importance of the position of Registrar and the legitimacy of the process of his or her appointment.
The Registry of the ECtHR is unseen, but it is heard. For the majority of people it is unclear what the lawyers of the Registry do and what their impact on the Court agenda and decision-making is. While the judges are often in the spotlight, it is lawyers of the Registry who prepare the cases for hearings and often draft the judgments, on instructions from the judge rapporteur.
The Registry is mentioned in the ECHR in Article 24, which provides: “the Court shall have a Registry, the functions and organisation of which shall be laid down in the rules of the Court”. After Protocol 14 entered into force the members of the Registry acquired a legal right to act as non-judicial rapporteurs assisting judges sitting as single judges.
The role of the Registry is crucial for the proper functioning of the European Court of Human Rights. While the judges of the Court make all crucial meritorious decisions, the Registry often shapes the Court’s reasoning. The lawyers of the Court’s Registry participate in all crucial aspects of the operation of the Court. They take part, for example, in the meetings concerning the reform of the Court; moreover, a lot of changes in the working methods of the Court are initiated by the lawyers of the ECtHR Registry and this process relies heavily on their experience. The Registry has a pyramid structure with the Registrar and Deputy Registrar at its top. Alongside with the President of the Court, the Registrar is the ‘face’ of the Court who assists the Court in the performance of its functions and is responsible for the organisation and activities of the Registry under the authority of the President of the Court.
According to Rule 15 of the Rules of Court the Registrar is elected by the Plenary of the Court and the candidates should be of high moral character and must possess the legal, managerial and linguistic knowledge and experience necessary to carry out the functions attaching to the post. The Registrar can be elected for a term of five years and may be re-elected.
I have argued elsewhere that independence of the judges of the European Court of Human Rights is very important for maintaining the legitimacy of the Court. It is also clear that the process of election of judges has improved considerably during the last 10-15 years. Of course, there are still a lot of issues that can be solved but the procedure of election of judges is much more transparent, clear and fair than before. It is less so in relation to the procedure of the election of the Registrar of the Court. Taking into account the importance of the position of Registrar or Deputy Registrar their selection should satisfy high standards of transparency, fairness and openness.
Traditionally the position of the Registrar is occupied by the lawyers who previously worked in the Registry for a certain period of time. It often seems that this appointment is some sort of in-house business that the outside world has little to do with. The lawyers of the Court might have a natural meritorious advantage merely because they know the working methods of the Court very well. One can argue that the Court might benefit from a highly qualified outsider with a fresh look on the challenges the Court is now facing. The position should be not merely formally open for all qualified lawyers but the Court should make real efforts to attract the most qualified candidates not only from within the Court but also from other international institutions and highest national court.
It is hardly possible to have a very large pool of candidates for a position like that. For instance, one of the criteria for appointment is ‘experience of administration and management at senior level, particularly in regard to management of staff and budgetary matters, acquired in an international environment’. It is obvious that there are not too many candidates that can satisfy this criterion and wish to move to Strasbourg. Having said that, it is the perceived openness what matters here. Therefore, certain improvements can be implemented into the election of the Registrar. Among clear drawbacks of the current procedure one can point out a short period of time allowed for application (less than 2 months), lack of wide advertisement and unclear process of shortlisting of the candidates. One can suggest that the pre-election selection process can be improved by making it more transparent and inclusive.
The Registrar of the Court is the key figure in the hierarchy of the Court. He or she will have a significant impact on the organisation of the Court. Therefore, the civil society, mass media and the academic community should encourage the best qualified candidates to participate, and should also closely monitor the selection of the registrar of the European Court of Human Rights.