Judge Iulia Motoc of the European Court of Human Rights and Jan Zobec of the Constitutional Court of the Republic of Slovenia discussing systemic problems of judiciary from a judge’s perspective at the Conference on Crisis of Rule of Law and Democracy in Europe. Photo courtesy of demokracija.si.
N.B. This post was first published at Verfassungsblog.
The position of a judge at the European Court of Human Rights is one of the most sought-after functions in the European judicial space. The persuasiveness, quality and legitimacy of judicial decisions often depend on the individuals who occupy judicial positions. Respective interest groups therefore often attempt to shape the processes for selecting judges at either the national or international levels. The process of nominating and electing judges to the European Court of Human Rights is therefore essential to ensure the appearance of their perceived and actual independence and impartiality. The national nomination processes of judges to the European Court of Human Rights is therefore in most Central and Eastern European countries highly prestigious and thus often politicised and riddled with several obstacles.
The first paragraph of Article 21 of the European Convention on Human Rights and Fundamental Freedoms provides that “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”. National criteria vary from state to state and may ask the candidates to demonstrate “professional reputation of the field of human rights and fundamental freedoms” and “high moral character, impartiality and integrity.” However, such legal concepts are quite open to subjective interpretation. In this way, it seems best to also assess a candidate’s competence based on their ex ante work. This is in line with the Parliamentary Assembly of the Council of Europe’s Resolution 1726 (2010) which requires “that national selection procedures must be rigorous, fair and transparent in order to enhance the quality, efficacy and authority of the Court” (para. 7).
Article 22 of the European Convention on Human Rights and Fundamental Freedoms provides that “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”. However, once candidates pass through a national nomination stage they face of number of other checks. Thus, before the vote candidates must undergo a series of interviews before the Subcommittee on the Election of Judges to the European Court of Human Rights of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly. Such a rigorous selection procedure should ensure that only the best candidates are elected due to their experience and expertise in the field. In the first round of voting, the candidate who received the majority of votes in the Parliamentary Assembly will be elected. If no candidate receives the majority, in the second round a relative majority is sufficient (see the Information Document of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, paragraph 13).
However, even though the selection process in the Council of Europe is quite rigorous and strict, it does not fully exclude the possibility of day-to-day politics interfering with the national selection process. The Council of Europe does not have much influence on the national selection procedures. Consider, for instance, the ongoing national nomination process for three candidates for a judge on behalf of Slovenia. The mandate of the incumbent judge at the European Court of Human Rights on behalf of Slovenia expires on 31 October 2015. Therefore, in spring this year the Ministry of Justice of the Republic of Slovenia started a selection procedure for the nomination of three candidates to the Parliamentary Assembly of the Council of Europe by publishing a call for applications. Seven candidates applied, namely six men and one woman. The Judicial Council of the Republic of Slovenia prepared a ranking of the candidates and proposed that the President of Slovenia sends the names of the three highest ranking candidates to the Slovenian National Assembly, which had to vote on that list in order for it to be sent to the Parliamentary Assembly of the Council of Europe. (However, the list was not welcomed by human rights experts in Slovenia as no candidate with ECHR expertise applied). Therefore, at the end of August the President of Republic of Slovenia refused to send the list of the three highest ranking candidates to the National Assembly and requested that the Ministry of Justice repeat the call for applications. It is not entirely clear why the President rejected the list approved by the Judicial Council, but it appears that he was not impressed by the candidates’ merits. Surprisingly, at this point of time the Ministry of Justice does not plan to repeat the call for application. However, this may change because just a few days ago a new government assumed office. This situation is not unusual in national selection procedures as the position of ECtHR judge is a highly prestigious function. However, the particularities of the national selection often remain hidden from the public eye.
The Council of Europe does not have much possibility to monitor the objectivity and transparency of national selection procedures. However, it can reject a national list of proposed candidates. For instance, last June the Parliamentary Assembly rejected a list of candidates for a judge on behalf of the Slovak Republic and requested the state to submit a new list of candidates (n.b. a new judge on behalf of the Slovak Republic has still not been elected even though the incumbent’s mandate expired on 31 October 2013). Similarly, the Council of Europe rejected Turkey’s first list of candidates in 2007. Further, in April 2012 Human Rights Watch noted as regards a proposed Russian judge that “are some problems with the constitution of the commission empowered to select candidates« and that the commission »did not include any representatives from civil society organisations or the office of the Ombudsman«. All in all, the 2008 PACE Report accordingly notes that national nomination procedures are “still unsatisfactory«. Therefore, the Committee of Ministers now also offers advice to the Member States through an advisory panel of experts on national selection procedures.
Arguably, the Central and Eastern European countries may be more prone to unfairness in their national selection procedures because their judiciaries have often remained closed, self-sufficient and formalist. More reasons can be found in excessive formalisms, post-communist judicial cultures, a lack of self-criticism of judicial structures and a lack of independent media in most Central and Eastern European states, and all of them may have influenced the national selection procedures of judges to the ECtHR. In those countries, the merits of the candidates may only play side role in the nomination process and where the nomination of candidates to the European Court of Human Rights comes down to brutal daily politics and attacks on the candidates in the media. However, the reasons for the problem-ridden nomination process can be located in the remnants of the former totalitarian regime, creating excessively formal legislative and judicial cultures, which may be open to various political influences. Therefore, those states need to improve the fairness, transparency and independence of their national selection procedures.
The procedure for selecting judges to the European Court of Human Rights is important since the people who interpret and develop the text of the articles of the European Convention are the judges of the ECtHR. The judges flesh out the content of the ECHR as a ‘living process’ in judgments and in separate concurring and dissenting opinions. The ECHR is a normative document for the protection of human rights with maximum legal value and force, but it is also a political document that contains a number of unsettled legal concepts. Such legal concepts can be interpreted by people – judges – who decide in concrete cases with different levels of knowledge and experience.
It is crucial that the selection procedures for judges of the European Court of Human Rights take place in an open, fair, rigorous and transparent manner on the basis of a careful assessment of the candidates’ professional references. The selection commissions should demonstrate perceived as well as genuine independence. European judges, like other judges of the highest courts, reflect their personality, beliefs and values through their decisions and separate opinions. However, once judges are elected their work will be assessed on the reasoning and persuasiveness of the arguments found in their judgments and decisions.
We have previously posted about conference on “Crisis of Rule of Law and Democracy in Europe” to take place this Thursday and Friday at Brdo pri Kranju, Slovenia. Here is now its full programme :
Day 1: Thursday, Sept 25, 2014
17:00 – 19:00
by Kimmo Nuotio: “Setting the Scene – the Patria Case: Criminal Justice in the Political
Discussant: Matej Avbelj
19:30 Dinner for the participants
Day 2: Friday, Sept 26
Crises of the Rule of Law and Democracy in a Comparative Perspective: Vestiges of the
Past, Vices of the Present, Prospects for the Future
Panel 1: Fighting the Vestiges of the Past in the Present
9:00 – 11:00
Anna-Bettina Kaiser (Germany)
Daniel Smilov (Bulgaria)
Uladzislau Belavusau (Belarus)
Discussant: Vojko Strahovnik
11:00 Coffee Break
Panel 2: Challenges of the Present for the Future
11:15 – 13:15
Paul Blokker (Italy)
Eszter Bodnar (Hungary)
Goran Selanec (Croatia)
Discussant: Katarina Vatovec
Lunch Break 13:30 – 14:30
Panel 3: Specificities of the Slovenian Situation
14:30 – 16:30
Jernej Letnar Černič
Discussant: Miha Movrin
16:30 Coffee Break
17:00 – 19:00
Round-table Discussion: Systemic Problems of Judiciary from a Judge’s Perspective
Iulia Motoc (Judge, European Court of Human Rights)
Marko Šorli (Judge, Supreme Court of Slovenia)
Jan Zobec (Judge, Constitutional Court of Republic of Slovenia)
Chair: Matej Avbelj
The European Court of Human has just before summer recess delivered a judgment in the case of Zornić v Bosnia and Herzegovina (3681/06, 15 July 2014) concerning the inability of the applicant to run for election to the Presidency of Bosnia and Herzegovina. Its constitution allows only candidates from free major ethnic groups or“constituent people” (Bosniaks, Croats and Serbs) to stand for elections to the Presidency. The applicant did not declare that she belongs to any of them and was therefore prevented from standing for election. She thereafter complained to the European Court invoking its earlier judgment in Sejdić and Finci v Bosnia and Herzegovina. The Court accordingly held :
that identical constitutional provisions have already been found to amount to a discriminatory difference in treatment in breach of Article 14 taken in conjunction with Article 3 of Protocol No. 1 in Sejdić and Finci (ibid., § 50). Accordingly, and for the detailed reasons elaborated in Sejdić and Finci (§§ 47-49), the Court concludes that there has been a violation of Article 14 taken in conjunction with Article 3 of Protocol No. 1 and a violation of Article 1 of Potocol No. 12 resulting from the applicantʼs continued ineligibility to stand for election to the House of Peoples of Bosnia and Herzegovina (para. 31).
Far more essential part of the judgment concerns the effective implementation of the judgment in the Bosnian domestic legal system. The Court, therefore, dedicated lengthy part of the judgment to the discussion of application of article 46 of ECHR, i.e. execution of judgment in previous case Sejdić and Finci. It noted in para. 43 that :
now, more than eighteen years after the end of the tragic conflict, there could no longer be any reason for the maintenance of the contested constitutional provisions. The Court expects that democratic arrangements will be made without further delay. In view of the need to ensure effective political democracy, the Court considers that the time has come for a political system which will provide every citizen of Bosnia and Herzegovina with the right to stand for elections to the Presidency and the House of Peoples of Bosnia and Herzegovina without discrimination based on ethnic affiliation and without granting special rights for constituent people to the exclusion of minorities or citizens of Bosnia and Herzegovina.
It seems that the Court has in this case again stumbled on limits of its powers.The execution of judgments of the ECtHR is not only unsatisfactory in Bosnia and Herzegovina but also in several of other Central and European states. Therefore, it must be improved so that the normative regulation would allow for direct execution of judgments and so that necessary amendments to national laws would be adopted. Reasons for their non-execution are multi-layered, however they can be located in the dynamic of post—conflict societies, remnants of the former totalitarian regime, excessively formal legislative and judicial cultures and lack of political will. The judges at the Court may consider “that the time has come” to adapt the Bosnian constitutional system to the European Convention of Human Rights, however the realities and dynamics of the Bosnian politics and society at large are far away from such changes. Proposals that that insists on constitutional changes to the institutional framework of Bosnia and Herzegovina run the risk to unsettle the fundamentals of fragile cohabitation of three major ethnic groups and may potentially awaken old life-threatening tensions. It appears not certain that judges of the European Court are prepared to risk to tremble extremely fragile balance in order to guarantee “just” the right to stand for election of individuals not belonging to one of the constituent groups. There is much more at stake as only the right to stand for election.
Conference on Crisis of Rule of Law and Democracy in Europe will take place on 25-26 September 2014 at Brdo pri Kranju, Slovenia. Here are the aims of the conference :
Since the very beginning, the European Union has identified itself as the community of law. The respect for the rule of law and democracy has been posited at the apex of the EU values, shared by all of its Member States. Furthermore, the adherence to these values, both in theory and in practice, has been a prerequisite any country has had to meet to join the Union. However, in recent years, while the EU has been suffering under the impact of the financial and economic crisis, the very legal and democratic foundations have been undermined in several Member States, most notably: Hungary, Romania, Bulgaria and Slovenia, to name but a few.
The purpose of this conference is to address the systemic rule of law and democracy crisis in the European Union, focusing on specific case studies of the selected Member States. The conference, taking place on September 25-26, 2014 at Brdo, Slovenia, will feature a number of very distinguished speakers and guests, including the Dean of the Helsinki School of Law, the judges of the European Court of Human Rights, the Slovenian Constitutional and Supreme Court, foreign academic experts and practitioners from Germany, Greece, the Netherlands, Italy, Croatia, Hungary and Bulgaria. The conference is expected to resonate widely especially in Slovenia, which is currently undergoing one of its most severe crisis in the rule of law since its independence. The conference will also have an academic impact abroad, in the EU and beyond, by way of publication which is anticipated to result from the conference discussions.
More information is available here.