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25.01.2010

Strasbourg issues opinion regarding the dispute over Ukraine’s Judge to the European Court

   

A Grand Chamber of 17 Judges of the European Court of Human Rights has concluded that a candidate list already submitted to the Parliamentary Assembly of the Council of Europe cannot be withdrawn and replaced with a new list after the deadline for submission.

The dispute – together with the lack of a permanent Judge from Ukraine at the European Court – has continued since 2007 when President Yushchenko issued a Decree calling for a new candidate list to be drawn up.  The reason was apparently that one of the candidates had withdrawn for personal reasons, however, as the information in the URLs below indicate, the reasons were not quite so clear-cut, and Ukraine refused – as asked – to provide a third candidate to replace Vasyl Marmazov.

The original list includes Serhiy Holovaty, then and now a National Deputy and Anna Yudkivska. Prior to the scandal over the withdrawn candidate list, human rights groups had expressed concern over the candidacy of a prominent politician.

It remains entirely unclear what will happen next and how a much needed permanent appointment of Ukrainian Judge can be achieved.

The Court’s Advisory Opinion in full http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=&sessionid=43696619&skin=hudoc-pr-en

22.01.2010

EUROPEAN COURT OF HUMAN RIGHT’S SECOND ADVISORY OPINION

In today’s decision, the Court unanimously concluded that a list of candidates for election as a judge of the Court in respect of a particular State, which had already been submitted to the Parliamentary Assembly of the Council of Europe1, could not be withdrawn and replaced with a new list after the deadline set for submission of the list to the Assembly.

Background and questions

The present request for an opinion arose out of an exchange of letters between the Ukrainian authorities and the Parliamentary Assembly on the composition of the list of candidates for election as a judge of the Court in respect of Ukraine2. Following the withdrawal of one of Ukraine’s three candidates for personal reasons in September 2007, the Ukrainian authorities announced the withdrawal of the entire list. In October 2007 the Parliamentary Assembly, concluding that there were no “exceptional circumstances” justifying the withdrawal of the list, requested that Ukraine submit a replacement candidate and not an entirely new list. That request was reiterated in December 2007.

Against that background, on 15 July 2009, the Committee of Ministers, the Council of Europe’s executive arm, asked the Court, under Article 473 (advisory opinions) of the European Convention on Human Rights, to give its opinion on the following questions:

1.  (a) Can a list of three candidates, nominated by a State for election as a judge to the European Court of Human Rights in respect of that State and submitted to the Parliamentary Assembly, be withdrawn and replaced with a new list of three candidates? If yes, is there any time limit?

(b) Can candidates on a withdrawn list be considered as nominated by a State within the meaning of Article 22 of the Convention?

(c) Is the Parliamentary Assembly obliged to consider a new list of candidates submitted by a State in replacement of its withdrawn list?

2.  (a) If one or more candidates on a list submitted to the Parliamentary Assembly by a State withdraws before the Assembly has voted on the list, is that State obliged under the Convention to submit an additional candidate or candidates to complete the list or is it entitled to submit a new list?

(b) Are the conditions in paragraphs 1 and 2 of the Appendix to Resolution 1432 (2005)4 of the Parliamentary Assembly of the Council of Europe in breach of the Assembly’s responsibilities under Article 22 of the Convention to consider a list, or a name on such a list?

Procedure

The request for an advisory opinion was assigned to the Grand Chamber of the Court.

Written comments were submitted by the Parliamentary Assembly and the Governments of 16 countries (the Czech Republic, Estonia, France, Greece, Ireland, Malta, Moldova, the Netherlands, Poland, Portugal, Russia, Serbia, Slovakia, Sweden, Ukraine and the United Kingdom).

The 22 January decision was given by a Grand Chamber of 17 Judges.

Summary of the decision

Jurisdiction

Firstly, the Court observed that its jurisdiction under Article 47 was confined to “legal questions concerning the interpretation of the Convention and the protocols thereto”. Questions 1.a through to 2.a, concerning the rights and obligations of the Parliamentary Assembly in the procedure for electing judges, were of a legal character and as such fell within the scope of its jurisdiction under Article 47. On the other hand, question 2.b, which concerned the compatibility with the Convention of a Parliamentary Assembly resolution, and certain of its provisions, fell outside the Court’s advisory jurisdiction.

Merits

The Court considered that States could, in exercising their sovereign power, decide – for reasons of their own – to withdraw lists of candidates for the post of judge at the Court. It would not, however, be compatible with the normal conduct of the election procedure to allow Member States to withdraw a list, without any restrictions or conditions, once submitted to the Parliamentary Assembly. Indeed, before submitting their lists, member States would presumably have organised their own selection procedures in such a way as to allow them to choose suitably qualified candidates. Any later possibility of withdrawal could hinder the normal course and timing of the procedure for election by the Parliamentary Assembly. In the Court’s opinion, it was thus reasonable for the time-limit for withdrawal of a list to coincide with the deadline set for the member States to submit the lists to the Parliamentary Assembly.

In conclusion, member States could withdraw and replace a list of candidates for the post of judge at the Court, but only on condition that they did so before the deadline set for submission of the list to the Parliamentary Assembly (question 1a). After that date, the member States would no longer be entitled to withdraw their lists. By the same logic, if the withdrawal occurred before that time-limit: candidates on a list withdrawn by the member State could no longer be regarded as nominated (question 1b); candidates on a new list had to be considered by the Parliamentary Assembly (question 1c); and, the member State concerned could either replace any absent candidates or submit a new list of three candidates (question 2a). If, however, the withdrawal occurred after that date, the member State concerned had to be restricted to replacing only absent candidates (question 2a).

***

1 Article 22 § 1 of the Convention provides: “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.”

2 Currently there is no elected Judge in respect of Ukraine. Chamber cases against it are considered with the participation of an ad hoc Judge.

3 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.

4 Concerning the modalites for the election procedure of judges to the European Court of Human Rights and the Council of Europe Commissioner for Human Rights.

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