June 30, 2023
Georgiana Epure and Elena Brodeală
While there is a growing consensus on the importance of gender balance in the judiciary, women are still underrepresented on the benches of international courts. The European Court of Human Rights (“the Court”, “ECtHR”) is no exception. Despite the steps taken by the Council of Europe (“CoE”) to improve the situation, its member states are at times still showing resistance to nominating (eligible) women for office. The recent process to nominate a judge in respect of Romania proves this point. After pressure from civil society and a request by the CoE to revise the all-male list that it put forward for the election of its ECtHR judge, Romania nominated a woman who ultimately received just three of the 165 votes cast in the Parliamentary Assembly of the Council of Europe (“PACE”), the body that elects ECtHR judges. This blog post scrutinizes Romania’s failure to (substantially) respect the CoE’s requirements to ensure gender balance in the selection of its ECtHR judge. To contextualize the discussion, this post starts by outlining the ECtHR’s judicial selection procedure, the situation of gender underrepresentation on the ECtHR bench, and the rules that the CoE has put in place to address this situation. The second part of the blog post provides a critical analysis of the Romanian case.
The election of judges to the ECtHR is a complex process. First, CoE member states shortlist three candidates domestically. Then, the list is sent to an independent group of experts established by the CoE, known as the Advisory Panel of Experts on Candidates for Election as Judge to the European Court of Human Rights (“the Advisory Panel”), who provide a confidential opinion on whether it complies with the CoE’s requirements in terms of composition and the selection procedure of the candidates. After receiving the purely consultative advice from the Advisory Panel, states submit their final list to PACE. At the level of PACE, the candidates are interviewed and evaluated by the Committee on the Election of Judges to the European Court of Human Rights (“the Committee on the Election of Judges”) which makes a recommendation regarding their suitability for election. Finally, PACE votes for one of the candidates.
According to Article 21 of the European Convention on Human Rights, to be eligible for the position of ECtHR judge, candidates must “be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence”. In 2004, to address women’s underrepresentation at the Court, PACE adopted Resolution 1366 and introduced a gender “balance” rule, requiring the list of candidates to include at least one candidate of each sex. In 2005, after Latvia submitted an all-female list, this rule was amended to allow for exceptions “when the candidates belong to the sex which is underrepresented in the Court, that is the sex to which under 40% of the total number of judges belong”. In practice, this exception accommodates not only all-female lists, such as Malta’s in 2019, but could also accommodate all-male lists, arguably even in the paradoxical situation when the number of women on the ECtHR bench would be only temporarily slightly above 40%.
For the time being, however, as Stéphanie Hennette Vauchez observed, the 40% threshold set by PACE became “a ceiling – not a floor” for women’s representation on the ECtHR bench. Indeed, women have never made up more than around 40% of the total number of judges. At the time of writing this blog post (25 June 2023), only 17 out of the ECtHR’s 46 judges are women, which represents ~37% of the total. This will drop further since Romania’s female judge will soon be replaced by a male judge. This gender imbalance takes place in a context in which, according to the CoE’s European Commission for the Efficiency of Justice, since 2014, across CoE states, the average ratio of female judges was higher than the ratio of male judges, standing at 56% in 2020. The glass ceiling, however, is palpable. The same report shows that while there have been promising developments in the last decade, women are still generally underrepresented on the benches of the highest instance courts, and are significantly underrepresented as court presidents. Likewise, at the ECtHR, it was only in 2022 that a woman was elected, for the first time, as President of the Court.
Despite women’s historical underrepresentation on the ECtHR bench, there is another exception to the requirement of submitting a gender “balanced” list of candidates. In the context of some states’ resistance to the gender “balance” requirement and a 2008 advisory opinion of the ECtHR, PACE adopted Resolution 1627 (2008) which allows states to exceptionally submit “single-sex lists of candidates of the sex that is over-represented in the Court” if they have “taken all the necessary and appropriate steps” to identify a suitable candidate of the underrepresented sex, but without success. Factors taken into account in assessing whether all “necessary and appropriate steps” have been taken include: whether the call for candidatures was re-published and under what format; whether there were any members of the underrepresented sex on the reserve list submitted by the state; and whether states made concrete efforts to encourage or convince members of the underrepresented sex to respond to the calls for candidatures. The decision to exceptionally consider a single-sex list of candidates is taken by the PACE Committee on the Election of Judges with a two-thirds majority vote. In theory, this seems to be a very high threshold. In practice, however, as Stéphanie Hennette Vauchez reports, this exception allowed Moldova to validate its all-male list in 2012 on the ground that women and men had “equal opportunities” in the application process at the domestic level, which, as Hennette Vauchez concludes, is far from a compelling reason.
Despite this exception, the gender “balance” rule has had a positive impact on women’s representation among the candidates for the position of ECtHR judge. Since its adoption in 2004, most states submitted lists for the election of their ECtHR judge containing at least one female candidate, with notable exceptions including Malta (2004 and 2006), Slovakia (2004), Belgium (2012) and, more recently, Denmark (2022), in addition to the Moldavian case mentioned above. Last year, Romania also attempted to put forward an all-male list of candidates, which was criticised by local civil society groups, before being requested by the Advisory Panel to resubmit its list.
Romania has a poor record on gender equality in decision-making positions across the political and economic spheres. In 2022, only 19% of the members of Parliament were women and only two out of 22 ministers in the Government were women. In 2022, the European Institute for Gender Equality placed Romania second to last in the Gender Equality Index, which measures gender equality across all European Union member states. Romania’s ranking at the bottom of this index is mainly due to women’s general absence from decision-making positions in the country.
Romania is, however, one of the countries with the highest number of female judges in Europe. Women make up the overwhelming majority of judges, including on the bench of the High Court of Cassation and Justice , and also represent the majority of court presidents. In 2020, 73% of judges in Romania were female, which is 11 percentage points higher than the CoE median (62%). Furthermore, over 60% of court presidents in Romania were women. Women are also well represented in other legal professions and among law professors. At the same time – perhaps unsurprisingly given women’s political underrepresentation – there are still few women in judicial positions where nominations are made by political actors, notably on the bench of the Constitutional Court. While four of the nine current Constitutional Court judges are women, historically, the Constitutional Court bench has been overwhelmingly made up of male judges. Since the Constitutional Court’s establishment in 1992, only eight women have ever been appointed to sit on its bench (compared to 31 male justices) and it has never had a female president.
The possible connection between the underrepresentation of women on the bench of the Constitutional Court and Romania’s reticence to nominate women for similar positions, such as that of ECtHR judge, is certainly worth further study. In any case, it is to be noted that while the Government’s call for candidates for judge at the ECtHR explicitly mentioned that the final shortlist will be composed by taking into account the gender “balance” principle, this seems to have been just a formality to give the appearance of compliance with a CoE-imposed rule rather than a real commitment to gender balance. Ultimately, the list Romania sent to the Advisory Panel contained three male candidates, while two women were added to the reserve list.
The Romanian Government’s disregard for the gender “balance” requirement was criticized and contested by civil society groups and gender equality supporters. A group of Romanian human rights and gender equality organizations, activists, legal professionals, and academics – including these two authors – petitioned the Ministry of Justice (which coordinated the national selection process for the election of the new ECtHR judge) to resubmit a list that respected the principle of gender “balance”. The group also sent an open letter to the CoE Advisory Panel urging it to ask Romania to resubmit a list of candidates that respects the principle of gender “balance” and alert the PACE Committee on the Election of Judges about the country’s non-compliance with CoE gender equality rules. They argued that no exceptional circumstances could be invoked by Romania for bypassing the gender “balance” principle, given that it is one of the countries with the highest number of female judges in Europe, and that the Government had already identified two qualified women who were added to the reserve list.
The Ministry of Justice noted, in its response to the letter sent by civil society groups that it had informed the members of the domestic selection committee about the gender “balance” rule in PACE Resolution 1366 (2004), but suggested that it did not consider it to be binding. The Ministry based its reasoning on an erroneous reading of the 2020 ECtHR case Guðmundur Andri Ástráðsson v. Iceland. In this case, the ECtHR found a violation of the right to a fair trial due to the undue interference of the Minister of Justice in the appointment of judges to the Supreme Court of Iceland. The Minister had replaced four of the 15 initially selected judges with appointees of her choice arguing, among others, that the replacement was needed to ensure gender balance and give more weight to judicial experience in the selection procedure. Yet, in examining the facts, the ECtHR found these to be mere unsubstantiated pretexts for political interference in the judicial selection process. Hence, the Court found a violation due to political interference with judicial appointments. In no way, however, did it declare that gender balance could not be a legitimate rule in the appointment of judges, nor that its holding would overthrow the current rules for the selection of ECtHR judges as the Romanian Ministry of Justice implied. Furthermore, probably to underline that it did not object to promoting women as such, the Ministry of Justice noted that the current ECtHR judge in respect of Romania is a woman.
After its exchange with the CoE Advisory Panel, the Romanian Government changed its position and moved one of the female candidates from the reserve list to its final list of candidates. In explaining its decision, the Minister of Justice stated that the Advisory Panel underlined that the gender “balance” rule is binding and that it was not convinced that there existed “exceptional circumstances” to justify not abiding by it – particularly since there were already two women on the reserve list. The Advisory Panel also concluded that one of the male candidates did not meet the criterion of being a “jurisconsult of recognised competence”. In this context, the Romanian Government amended the list by replacing this candidate with the first woman on the reserve list.
While the revised list respected the gender “balance” principle, the PACE Committee on the Election of Judges recommended the election of one of the “two equally qualified” male candidates, which is what ultimately happened. After the PACE vote on 26 April 2023, the female candidate received just eight out of 165 votes in the first voting round and only three votes in the second round, which was held since none of the candidates received the needed majority in the initial round. This clearly demonstrates that nominating women on the candidate lists is not enough when they have little chance of being elected.
The case of Romania’s recent selection of its next ECtHR judge demonstrates that the current gender “balance” rule of the Council of Europe is not effective if member states are not truly committed to complying with it in a substantive way. Assessing the respect for this rule in the ECtHR judicial selection process cannot be a mere quantitative exercise (Are there women on the lists of candidates?). A qualitative assessment is needed too (Who are the women? What are their chances of being elected?). If Romania considered that the women on the reserve list were not eligible, it could have continued its search by inviting other qualified women to apply, instead of sending an all-male list or nominating ineligible female candidates. Of course, its decision to use the reserve list to comply with the Advisory Panel’s recommendation is understandable, not least because the end of the current judge’s mandate was imminent and a new search for candidates would have prolonged the selection process. Yet the Romanian case shows that we urgently need new measures – at both the CoE and domestic levels – to ensure that women are supported and empowered not only to compete for, but also to occupy, the position of ECtHR judge.