Aleksandar Hemon, a well-known Bosnian writer, has stated in a recent interview that “the Dayton agreement was actually a constitutional continuation of war, whereby Bosnia was cemented in the structure, which does not permit it to live in peace.” Photo courtesy of esohap.org.
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
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.
We have already reported that the mandate of the incumbent judge at the European Court of Human Rights on behalf of Slovenia expires on 31 October 2015. The Ministry of Justice of the Republic of Slovenia has therefore this May started selection procedure for nomination of three candidates to the Parliamentary Assembly of the Council of Europe by publishing call for applications. Seven candidates applied, among them seven men and one woman. The Judicial Council of the Republic of Slovenia prepared a ranking of candidates and proposed to President of Slovenia to send the names of three highest-ranking candidates to the Parliament, which has to vote on the list of three candidates in order to be sent to the Parliamentary Assembly of the Council of Europe. However, Mr Pahor, the incumbent President of Republic of Slovenia, last week refused to send the list of three high ranking candidates to the Parliament and requested that the Ministry of Justice repeats the call for applications. It is not entirely clear why Mr Pahor rejected the list approved by the Judicial Council, but it appears that the merits of the candidates did not impress him. Surprisingly, the Ministry of Justice at this point does not plan to repeat the call for application. It seems we are witnessing situation so often seen in the Central and Eastern European countries where the merits of the candidates play only side role in the nomination process and where the nomination of the candidates to the European Court of Human Rights comes down to brutal power politics. Stay tuned for future developments on this issue.
College of Europe and European University Institute will be on 12 and 13 May 2014 holding conference on “Central and Eastern European Judges under the EU Influence: The Transformative Power of Europe Revised on the 10th Anniversary of the Enlargement”. The conference aims to answer the following questions :
What has been the “transformative power” of EU law on the reasoning and ideologies of Central European countries’ judiciary? What has been the impact of EU membership on their institutions? How can we explain the radical change of approach of some initially “Euro-friendly” Constitutional Courts that in recent times have questioned the constitutionality of EU acts and even a judgement of the ECJ? What are the cultural and political reasons of the backsliding on rule of law and constitutional guarantees in some of the Central and Eastern European countries following the accession?
The programme of the conference is as follows :
SALA EUROPA, VILLA SCHIFANOIA
9.00 Arrival and Registration of participants
9.30 Welcome and Introduction
Loïc Azoulai, Director of the Centre for Judicial Cooperation, European University Institute
Michal Bobek, College d’Europe
10.00 Stream 1: Judicial Reasoning and Judicial Ideology – Chair: Loïc Azoulai
Short presentations by
Peter Cserne – Formalism and Policy Arguments in Judicial Reasoning: Is Central Europe a Special Case?
Jan Zobec and Jernej Letnar Černič – The Remains of the Authoritarian Mentality within the Slovene Judiciary
Marcin Matczak, Matyas Bencze and Zdeněk Kühn – EU law and CEE judges. Administrative judiciaries in the Czech Republic, Hungary and Poland ten years after the Accession
Rafał Mańko – The Impact of EU Membership upon Private Law Adjudication in Poland: A Case Study on Unfair Terms in Consumer Contracts
10.40 Comments by Boštjan Zalar and Erhard Blankenburg
11.15 Coffee break
11.30 General Discussion
12.00 Stream 2: Structural and Institutional Changes – Chair: Matej Avbejl
Short presentations by Sinisa Rodin – Dumb and no More Here
Marton Varju and Andras Kovacs – The impossibility of being a European and a national judge at the same time: a Central and Eastern European experience
Nina Poltorak – Changes in the level of the national judicial protection under the EU influence on the example of Polish legal system
Alexander Kornezov – When David Teaches EU Law to Goliath – A Generational Upheaval in the Making in the Bulgarian Judiciary
Aleš Galič – Aversion Against a Judicial Discretion in Civil Proceedings in Post-communist Countries: Can the Influence of the EU Law Change It?
14.20 Stream 2: Structural and Institutional Changes (continued)
Comments by Mirosław Wyrzykowski and Tudorel Stefan
14.40 General Discussion
15.15 Coffee break
15.30 Stream 3: Constitutional Courts and Constitutional Justice – Chair: Wojciech Sadurski
Short presentations by
Tomasz Tadeusz Koncewicz – Polish Constitutional Court and the comity of circumspect
constitutional courts: The Court of old closures or new openings?
Jiří Přibán – Constitutional Sovereignty and Jurisprudence of the Czech Constitutional Court
Allan Tatham – “Keeping the Faith”: The Trials and Tribulations of the Hungarian Constitutional Court in following its European Vocation
Aleksandra Kustra – When the language you speak is not your mother-tongue: Confusions in CE Constitutional Courts’ application of legal concepts concerning EU Membership
Pola Cebulak – From a «teacher-student» relationship to a «student-student» dynamic? The Central and Eastern European «block » of Constitutional Courts in European Judicial Politics
16.30 Comments by Marek Safjan
16.50 General Discussion
17.30 End of Day 1
SALA EUROPA, VILLA SCHIFANOIA
9.30 Stream 4: Backsliding and the Rule of Law – Chair: Inge Govaere
Short presentations by
Kim Lane Sheppele – Constitutional coups and judicial review: how transnational institutions can strengthen peak courts at times of crisis (with special reference to Hungary)
Petra Gyöngyi – Constitutional constraints and possibilities and the role of the European Union in guiding judicial reforms in Hungary and Romania
Uladzislau Belavusau – Challenging Authoritarism: EU Transformative Power in Central & Eastern Europe?
Martin Mendelski – Pathologies of rule of law promotion: The uneven impact of the EU on de jure and de facto rule of law development in Central and Eastern Europe
10.15 Comments by Hannes Kraemer and Jenö Czuczai
10.50 Coffee break
11.10 General Discussion
Of Light, Darkness, and the White Man`s Burden