Thursday 29 March 2012

Committee of Ministers Adopts Guidelines on Selecting European Court Judges

Yesterday, the Committee of Ministers of the Council of Europe adopted Guidelines on the selection of candidates for the post of judge at the European Court of Human Rights. The guidelines address the first step in electing judges: the national selection procedures. Earlier, in 2010, the Committee already established an advisory panel of experts on candidates for the election as judge to the European Court of Human Rights. It is notable that the Committee of Ministers follows the Parliamentary Assembly in the very debated issue of whether submitted lists of three candidates should include candidates of both sexes. The Guidelines state the following about this:
Lists of candidates should as a general rule contain at least one candidate of each sex, unless the sex of the candidates on the list is under-represented on the Court (under 40% of judges) or if exceptional circumstances exist to derogate from this rule.
According to the Parliamentary Assembly such circumstances exist when "a Contracting Party has taken all the necessary and
appropriate steps to ensure that the list contains candidates of both sexes meeting the requirements of Article 21 § 1 of the European Convention on Human Rights." Considering that the election of the Maltese judge was stalled for years because only lists of men were submitted, the issue had become very thorny. But with this "exceptional circumstances"-clause, it was possible even recently that for example Belgium submitted a list of three men which was accepted by the Assembly. It is difficult to understand why, however. Currently, there are 19 female judges out of 47 in total: that is 40%, but why stop there? Secondly, in a country like Belgium with so many ECHR specialists, female and male, it seems unthinkable that all steps were taken to find suitable female candidates. Among the current three male candidates there are certainly very expert and very suitable candidates, but that still does not explain why the list contains only men. The three candidates were interviewed a few weeks ago and elections on the new Belgian judge will take place next month.

The explanatory memorandum to the Guidelines can be found here.