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24.06.2009

PACE decides not to annul Ukrainian delegation’s credentials

   

On 23 June, the Parliamentary Assembly of the Council of Europe voted not to annul the credentials of the Ukrainian parliamentary delegation “on the understanding that Ukraine will take without further delay all necessary steps to finalise the election of a judge of the European Court of Human Rights”. The Assembly noted Ukraine’s request for an Advisory Opinion from the Court on “the right of a state to withdraw a list of candidates, once submitted” but said any such an opinion should also deal with “the issue of the conformity, with the European Convention on Human Rights, of Ukraine’s refusal to provide the name of a third candidate”. 

 

Provisional edition

Reconsideration on substantive grounds of previously ratified credentials of the Ukrainian delegation (Rule 9 of the Assembly’s Rules of Procedure)

Resolution 1674 (2009)1

1.       Judges on the European Court of Human Rights are elected by the Parliamentary Assembly on the basis of a list of three candidates provided to it by each State Party to the European Convention on Human Rights (hereinafter “the Convention”). When a candidate withdraws, the state must replace him or her. This the Ukrainian authorities refused to do, after a candidate had withdrawn in late 2007. Instead, Ukraine has transmitted a new list of three candidates which the Assembly decided not to accept since there exist no exceptional circumstances to justify this.

2.       Article 22, paragraph 1, of the Convention requires each State Party to submit a list of three candidates to the Parliamentary Assembly to enable the Assembly to elect a Judge in respect of the state concerned. The persistent refusal, by the Ukrainian authorities, to provide the Assembly with the name of a third candidate has so far prevented the election of a Judge in respect of Ukraine. It may also constitute a serious violation of basic principles of the Council of Europe mentioned in Article 3 of, and the Preamble to, the Organisation’s Statute.

3.       The appointment, in the meantime, of ad hoc judges, for a prolonged period of time, not elected by the Assembly, is an abuse of a procedure that has been specifically set-up to provide democratic legitimacy to the judges of the European Court of Human Rights, who are elected by the Assembly. To so circumvent the election procedure foreseen by the Convention threatens to undermine the credibility of the Court.

4.       It is incumbent, in particular, upon the authorities of Ukraine and its parliamentary delegation, as well as the statutory organs of the Council of Europe, the Committee of Ministers and the Parliamentary Assembly, to ensure that this situation is resolved without further delay.

5.       As the Assembly indicated in Resolution 1646 (2009) on the nomination of candidates and election of judges to the European Court of Human Rights, it is crucial to ensure that the authority and credibility of the Court are not put at risk by ad hoc and politicised interventions in the nomination of candidates. In the same vein, the Assembly has established clear rules preventing the partial or complete modification by states of lists of candidates once submitted, unless the Assembly finds exceptional reasons that can justify such modification (as specified in paragraph 1 in the Appendix to Assembly Resolution 1432 (2005)).

6.       Moreover, the Assembly considers that the blocking by the Ukrainian authorities of the election of a judge in respect of Ukraine, the failure to communicate the name of a third candidate and the appointment of ad hoc, unelected judges who have been performing the duties of judge in the Court in respect of Ukraine since January 2009 in lieu and place of a judge duly elected by the Assembly seriously calls into question the Assembly’s electoral competence as provided for in the European Convention on Human Rights.

7.       The Assembly notes that the Ukrainian authorities have decided to inform the President of the Assembly that they have requested that the Committee of Ministers, by virtue of Article 47 of the Convention, seek an Advisory Opinion from the European Court of Human Rights on the right of a state to withdraw a list of candidates once submitted. This question should enable the Court to determine whether Ukraine’s refusal to provide the name of a third candidate is in conformity with the requirements of the Convention.

8.       Consequently, the Assembly decides not to annul and therefore to confirm the credentials of the Ukrainian parliamentary delegation on the understanding that Ukraine will take without further delay all necessary steps to finalize the election of a judge of the European Court of Human Rights in respect of Ukraine in compliance with its obligations under the Convention and the Organisation’s Statute and in line with the advisory opinion of the European Court of Human Rights, if there is one.

1 Assembly debate on 23 June 2009 (21st Sitting) (see Doc.11963, report of the Committee on Legal Affairs and Human Rights, rapporteur: Mr Marty, and Doc. 11965, opinion of the Committee on Rules of Procedure, Immunities and Institutional Affairs, rapporteur: Mr Lintner). Text adopted by the Assembly on 23 June 2009 (21st Sitting).

 

Recommendation 1875 (2009)1

1.       The Parliamentary Assembly refers to its Resolution 1674 (2009) in which it decided, for the time being, to confirm the credentials of the Ukrainian parliamentary delegation in the light of information recently provided by the Ukrainian authorities that they have requested the Committee of Ministers to seek an Advisory Opinion from the European Court of Human Rights on matters raised in the Resolution.

2.        The Assembly therefore recommends that the Committee of Ministers seek, without delay, an Advisory Opinion from the European Court of Human Rights. The request should not only deal with the purported right of a state to withdraw a list of candidates, once submitted, but also ought to cover the issue of the conformity, with the European Convention on Human Rights, of Ukraine’s refusal to provide the name of a third candidate.

1 Assembly debate on 23 June 2009 (21st Sitting) (see Doc.11963, report of the Committee on Legal Affairs and Human Rights, rapporteur: Mr Marty, and Doc. 11965, opinion of the Committee on Rules of Procedure, Immunities and Institutional Affairs, rapporteur: Mr Lintner). Text adopted by the Assembly on 23 June 2009 (21st Sitting).

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