April 09, 2019
By Kanstantsin Dzehtsiarou (University of Liverpool)
Election of judges is crucially important for the legitimacy, reputation and authoritativeness of the European Court of Human Rights (ECtHR). The Court needs leading academics and practitioners not only to come up with well-drafted and reasoned judgments but also to ensure that these judgments are then embedded into the national legal systems of the Contracting Parties to the Convention. The role of the national judge therefore includes education and dissemination of the core principles and values of the Convention in their home countries. When these principles are presented by a well-respected professional, their weight increases exponentially. In order to choose the best candidates the selection procedure should be clear, transparent and based on merits of the candidates. This post is the first one of a series of posts, spread over the coming months, which will be looking at the selection procedure that commenced last week in Ukraine. In these posts, I will try to use the developments in Ukraine to illustrate the challenges that the Council of Europe and its Member States face in that regard.
Ukraine was selected for this case study for two main reasons. First, Ukraine is one of the newer members of the Council of Europe. Various challenges and irregularities are common in these countries. So, some general conclusions can be made. Moreover, it is quite possible that the selection in Ukraine will provide a fertile ground for such analysis. The European Court of Human Rights had to deliver its second ever advisory opinion because the Ukrainian government submitted two lists with candidates to the Parliamentary Assembly of the Council of Europe (PACE) during the previous election. It is needless to say that usually only one list is submitted. In April 2007, the Ukrainian government submitted a list of three candidates; in September 2007 the Government changed its mind and submitted a new list. The ECtHR had to decide whether this is in compliance with the ECHR. Second, the Ukrainian authorities are strongly declaring their commitment to “European values”, so they might want to conduct this competition with the maximum transparency and adherence to the rule of law. It will be interesting to see whether this selection process does live up to these expectations.
How Is Selection Done?
According to the European Convention on Human Rights, judges of the European Court of Human Rights are elected for the period of 9 years. There are two levels of selection procedure – first, in the contracting parties to the Convention and after that in Strasbourg. The Strasbourg system of election has improved significantly over recent years. It became much more populated by legal recommendations and standards. The national selection is much less regulated; although there are some recommendations originating in the Council of Europe as to how this initial selection should be conducted.
The Contracting Parties have to select three candidates whose qualifications are in accordance with the requirements of Article 21 of the Convention, namely they should 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 PACE and the Committee of Ministers of the Council of Europe has added other more precise requirements that the candidates should possess but I will discuss them in the subsequent posts when the candidates in Ukrainian selection will become known.
Then the list of three candidates is sent to Strasbourg. The CVs of the candidates are first checked by the Advisory Panel which can confidentially inform the government that one or more candidates do not comply with the requirements enshrined in Article 21. If that does not happen the candidates are interviewed by the Committee on the Election of Judges. The Committee decides on its preferences and their decision is transferred to the PACE. Finally, the PACE votes and elects a judge.
A delayed beginning…
According to the timetable available on the webpage of the Committee on the Election of Judges of the ECtHR, the Ukrainian government was supposed to submit their list of three candidates by 6 December 2018. This has not happened and it is clear that the current judge Ganna Yudkivska will continue acting as a judge beyond the end of her tenure (14 June 2019). It is not clear what was the reason for this delay but political instability linked to the presidential elections in Ukraine (in 2019) could have contributed. In any event, such delays are not unheard of and it will not undermine the procedure if other requirements are complied with.
It is needless to say how important the national selection procedure is. Even the most successful and transparent selection in Strasbourg cannot rectify drawbacks that happened in the member states. While the member states select three out of a very broad pool of potential candidates; the Strasbourg organs can only select one out of three.
The Committee of Ministers adopted the Guidelines of the Committee of Ministers on the selection of candidates for the post of judge. The aim of these Guidelines is to make the national selection mechanism more transparent and predictable. Another aim is of unification of practices as they vary significantly across the Member State. The Guidelines in particular demand that the selection procedure is codified and predictable. The call for applications should be made publically and widely circulated. The state should take additional appropriate measures in order to ensure that a sufficient number of good applicants present themselves to allow the selection body to propose a satisfactory list of candidates. And finally, reasonable time should be given for submission of application.
The selection body “should be of balanced composition. Its members should collectively have sufficient technical knowledge and command respect and confidence. They should come from a variety of backgrounds, be of similar professional standing and be free from undue influence, although they may seek relevant information from outside sources”. Finally, the Guidelines require that the suitable candidates are interviewed by the selection body.
A questionable beginning…
Pursuant to the recommendations of the Council of Europe, the procedure should be established and predictable. The situation in Ukraine is rather confusing from the legal point of view. There is a governmental circular in Ukraine which regulates selection of the candidates. This circular was adopted in March 2007 and amended in 2011. Without invalidating this circular, the president of Ukraine issued a decree on 4 March 2019 amending another presidential decree from 2007. All these legal documents establish different procedures for the selection of the candidates and it is unlikely that they contribute a lot to the predictability and stability of the selection procedure. Moreover, the presidential decree has only established a selection body which will have to announce the competition. It is not clear when the already delayed competition will begin.
The Council of Europe requires the states to take extra steps to invite suitable candidates. However, the procedure presented by the president of Ukraine includes limitations that neither the Convention nor the PACE ever required – namely, the candidates should possess Ukrainian citizenship. Although, the states are free to add new criteria to what is provided by the Convention this criterion goes against the spirit of the Convention and the universality of human rights. Although rarely, judges from outside of the proposing country were elected to the bench in Strasbourg. Usually, the inability of the “foreign” candidates to speak local language and their lack of familiarity with the national legal system are the natural reasons for the fact that the judges come from that particular member state. However, placing such obstacles in the selecting criteria might undermine the spirit of the competition. It also can show that the selection committee is looking for loyal candidates because “foreign” judges are more difficult to control.
The selection commission…
The Presidential decree has established a commission for the selection of candidates. Curiously, the decree states that all members of the commission will have to agree to participate. The wording suggests that they have not been approached just yet. It is unclear what will happen if they reject the invitation. The Council of Europe demands that the selection body should be of balanced composition. It seems that representatives of various law professions should participate: judges, advocates, prosecutors, solicitors and academics. Out of five members of the Ukrainian selection commission, four are pure academics. Although academics should be represented on the selection committee, they should not be dominated by them. The remaining member of the commission is the head of the EU project supporting judicial reform in Ukraine. The rationale for including this member also remains unclear. The first thing that I tell my students when I start teaching the module on the European Convention on Human Rights is that the European Union is not the same as the Council of Europe. The reason why a bureaucrat from the EU is selecting judicial candidates to the European Court of Human Rights is unclear.
It remains to be seen how effective, transparent and scandal-less this selection procedure is going to be but the very beginning does not give many reasons for optimism.