CEDH · PRESS;GENERAL;ENG — 12 février 2008

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s4BAE41EE { font-family:Arial; font-size:11pt } .s6B505E72 { margin:0pt; padding-left:0pt } .sCAA154B1 { margin-left:33.01pt; padding-left:2.99pt; font-family:Arial } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sB343B0AA { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#000000 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4B8D41EE { font-family:Arial; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   99 12.2.2008   Press release issued by the Registrar   COURT’S FIRST ADVISORY OPINION DELIVERED     The Grand Chamber of the European Court of Human Rights has today delivered its first advisory opinion.   In today’s decision, the Court has unanimously concluded that it is not compatible with the European Convention on Human Rights for a list of candidates for election to the post of judge at the Court to be rejected on the sole ground that there is no woman included in the proposed list.   It has also called for exceptions to the principle that lists must contain a candidate of the under-represented sex to be defined as soon as possible.   Under Article   47 [1] (advisory opinions) of the European Convention on Human Rights, the Court was asked by the Council of Europe’s executive arm, the Committee of Ministers, to give its opinion on certain legal questions concerning gender balance in the composition of the lists of candidates submitted for the election of judges to the Court (see below for details).   This is the second time that the Court has received a request from the Committee of Ministers for an advisory opinion. The first request concerned the co-existence of the Convention on Human Rights of the Commonwealth of Independent States and the European Convention on Human Rights. On 2 June 2004 the Court delivered its decision on that question, in which it concluded unanimously that the request did not come within its advisory competence.   The press release and the text of the decision (available in English and in French) can be found on the Court’s Internet site ( http://www.echr.coe.int ).   1.     Backgound and questions   Judges to the Court are elected in respect of the various countries which have ratified the European Convention on Human Rights. They are elected by the Parliamentary Assembly of the Council of Europe on the basis of lists of three candidates put forward by the country concerned, under Article 22 § 1 [2] of the Convention. Under Article 21 § 1 “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” . The candidates do not have to be nationals of the country concerned, but generally are.   In its Resolutions 1366 (2004) and 1426 (2005) the Assembly stipulates that it will not consider lists which do not include at least one candidate of each sex except when the candidates belong to the sex which is under-represented in the Court; the sex to which under 40% of the total number of judges belong. In effect that means that all-male lists are rejected.   As a consequence of this policy the all-male list of candidates submitted in respect of Malta on 17 July 2006 was rejected by the Assembly. The Maltese Government objected, in particular stating that it had fulfilled its obligations under Article 21 § 1 and that there was nothing in the Convention itself about gender balance. There was considerable debate in the Assembly and elsewhere on the subject.   Against that background, on 17 July 2007, the Committee of Ministers asked the Court, under Article 47, to give an advisory opinion on the following two questions:   Can a list of candidates for the post of judge at the European Court of Human Rights, which satisfies the criteria listed in Article 21 of the Convention, be refused solely on the basis of gender-related issues; and, Are Resolution 1366 (2004) and Resolution 1426 (2005) in breach of the Assembly’s responsibilities under Article 22 of the Convention to consider a list, or a name on such list, on the basis of the criteria listed in Article 21 of the Convention?   2.     Procedure   The request for an advisory opinion was assigned to the Grand Chamber of the Court.   Written comments were submitted by the Assembly and the Governments of 13 countries (Austria, the Czech Republic, France, Georgia, Malta, Monaco, Portugal, Slovakia, Slovenia, Spain, Switzerland, Turkey and the United Kingdom). 37 Governments also commented within the time-limit on whether their country had rules designed to ensure the presence of women (or, of the under-represented gender) within the Supreme and/or Constitutional Courts.   Today’s decision was given by a Grand Chamber of 17 judges, composed as follows:   Jean-Paul Costa (French), President , Christos Rozakis (Greek), Nicolas Bratza (British), Boštjan M. Zupančič (Slovenian), Peer Lorenzen (Danish), Françoise Tulkens (Belgian), Loukis Loucaides (Cypriot), Ireneu Cabral Barreto (Portuguese), Corneliu Bîrsan (Romanian), Nina Vajić (Croatian), Mindia Ugrekhelidze (Georgian), Anatoly Kovler (Russian), Vladimiro Zagrebelsky (Italian), Antonella Mularoni (San Marinese), Elisabet Fura-Sandström (Swedish), Egbert Myjer (Dutch), Dragoljub Popović (Serbian), judges ,   and Erik Fribergh , Registrar ,   3.     Summary of the decision [3]   The Court found that the first question concerned the rights and obligations of the Parliamentary Assembly in the procedure for electing judges, as derived from Article 22 in particular and from the Convention system in general. Accordingly, whatever its implications, it was of a legal character and as such fell within the scope of the Court’s jurisdiction under Article 47 § 1 of the Convention. The Court then considered that in view of its reply to the first question (below), it was not necessary to answer the second question.   In relation to the first question, the Court observed that there was nothing to prevent Contracting Parties from, for instance, attempting to achieve a certain balance between the sexes or between different branches of the legal profession on a particular list or within the Court. Nevertheless, while considerations of that kind were legitimate, they could not release the country concerned from its obligation to present a list of candidates each of whom fulfilled all the moral qualities and professional qualifications laid down in Article 21 § 1. For the Court, it was vital to its authority and the quality of its decisions that it be made up of members of the highest legal and moral standing.   Further, while it was clear that the Assembly was required to elect judges on the basis laid down by Article 22, it also had a certain latitude when it came to establishing the procedure for the election of judges, although it was bound first and foremost by Article 21.   It was obvious too that the Assembly might take account of additional criteria which it considered relevant for the purposes of choosing between the candidates put forward and might, as it had done in a bid to ensure transparency and foreseeability, incorporate those criteria in its resolutions and recommendations. Indeed, neither Article 22 nor the Convention system set any explicit limits on the criteria which could be employed by the Assembly in choosing between the candidates put forward.   The Court noted that the inclusion of a member of the under-represented sex was not the only criterion applied by the Assembly which was not explicitly laid down in Article 21 § 1. The Assembly also required candidates to have “sufficient knowledge of at least one of the two official languages”. However, a sufficient knowledge of at least one of the official languages was necessary in order to make a useful contribution to the Court’s work, given that the Court worked only in those two languages. The criterion relating to a candidate’s sex lacked an implicit link with the general criteria concerning judges’ qualifications laid down in Article   21 § 1.   The Court observed that the criterion in question derived from a gender-equality policy which reflected the importance of equality between the sexes in contemporary society and the role played by the prohibition of discrimination and by positive discrimination measures in attaining that objective. There was far-reaching consensus as to the need to promote gender balance at national level and in the national and international public service, including the judiciary. Although only a minority of countries had adopted specific rules aimed at ensuring a certain balance between the sexes in the courts, a great many of them sought to promote such a balance through appropriate policies. The same trend could be observed in the international courts and was also reflected in the European Court of Human Right’s own Rules of Court.   However, it was essential that such a policy did not make it more difficult for the countries which had ratified the Convention to put forward candidates who also satisfied all the requirements of Article 21 § 1, which were to be given primary consideration. The principle of nominating candidates of the under-represented sex at the Court was generally accepted, but not without provision being made for derogations from the rule. The obligation was therefore one of means, not of outcome.   Such a situation might arise in particular for a country where the number of people working in the legal profession was small. Those States had not to be placed in a position where, in order to fulfil the criterion concerning the sex of candidates, they could only nominate candidates who satisfied the criteria of Article 21 § 1 if they chose non-nationals. It would be unacceptable for a State to be forced to nominate non-national candidates solely to satisfy the criterion relating to a candidate’s sex, which was not enshrined in the Convention. Furthermore, it would be liable to produce a situation where the elected candidate did not have the same knowledge of the legal system, language or indeed cultural and other traditions of the country concerned as a candidate from that country. Indeed, the main reason why one of the judges hearing a case had to be the “national judge” was precisely to ensure that the judges hearing the case were fully acquainted with the relevant domestic law of the country concerned and the context in which it was set. It would therefore be incompatible with the Convention to require a country to nominate a candidate of a different nationality solely to achieve gender balance.   Accordingly, although the aim of ensuring a certain mix in the composition of the lists of candidates was legitimate and generally accepted, it might not be pursued without provision being made for some exceptions designed to enable each country to choose national candidates who satisfied all the requirements of Article 21 § 1. The precise nature and scope of such exceptions had still to be defined.   The Court concluded that, in not allowing any exceptions to the rule that the under- represented sex must be represented, the current practice of the Assembly was not compatible with the Convention: where the country concerned had taken all the necessary and appropriate steps with a view to ensuring that the list contained a candidate of the under- represented sex, but without success, and especially where it had followed the Assembly’s recommendations advocating an open and transparent procedure involving a call for candidates, the Assembly might not reject the list in question on the sole ground that no such candidate featured on it. Accordingly, exceptions to the principle that lists must contain a candidate of the under-represented sex should be defined as soon as possible.     ***   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 91) Sania Ivedi (telephone: 00 33 (0)3 90 21 59 45)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 47, the Court may, at the request of the Committee of Ministers, give advisory opinions on legal questions concerning the interpretation of the Convention and the protocols thereto. Such opinions shall not deal with any question relating to the content or scope of the rights and freedoms defined in Section 1 of the Convention and the protocols thereto, or with any other question which the Court or Committee of Ministers might have to consider in consequence of any such proceedings as could be instituted in accordance with the Convention.   [2] Under Article 22, 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. [3] This summary by the Registry does not bind the Court.