Why was the list of candidates for the position of a judge of the European Court of Human Rights from Ukraine rejected?

On 22 September the Committee on the Selection of Judges of the Parliamentary Assembly of the Council of Europe (PACE) rejected the list of three candidates for the position of a judge of the European Court of Human Rights (ECtHR) from Ukraine. “The committee interviewed all candidates on 16 September 2021. The Committee recommends that the Assembly reject this list, as not all candidates meet the criteria for election as a judge of the European Court of Human Rights, and request the Government of Ukraine to submit a new list of candidates”, – states the report on PACE web site. On 27 September PACE, despite the active lobbying of the Assembly members from Ukraine to not agree with the decision of the Committee, by a majority of votes finally rejected the nominations. Now it is necessary to hold a new competition for the selection of three candidates for the position of a judge of the European Court of Human Rights, for the third time.

In fact, what should have happened happened. In Strasbourg, one could not help but notice the unbridled desire of the Ukrainian authorities to have “their” judge in the ECHR in the person of PACE Vice President, Member of Parliament from the ruling party Oleksandr Merezhko. And it doesn't matter that it created a conflict of interest for PACE deputies in case of voting for (or against) their colleague, one of the leaders of the assembly.  

I think that the incompatibility of this candidate with the requirements for the position of ECtHR judge and the striking difference in the qualifications of the candidates (while the Council of Europe expects the professional qualifications to be approximately the same), have led to the formulation of the Committee for the Selection of Judges “not all candidates meet the criteria for election as a judge”. The second reason could be the non-compliance of the competition as a whole with the requirements of the Council of Europe – adherence to the “principles of democratic procedure, transparency and non-discrimination” (see PACE Resolution 1646 (2009), para.2). The third – the fact that there were no adequate consultations with the Advisory Panel of Experts of the Council of Europe (see PACE Resolution 2248 (18), para. 8.2).

Let us start with the third reason. I am sure that there was no communication with the Advisory Panel at all, and I suspect that the authors of the Regulations on holding the competition were simply unaware of its existence, otherwise they would be obliged to include consultations in the Regulations and conduct them, and only then send the list of candidates to the PACE (see para.5 of the Resolution CM/Res(2010)26 of the Committee of Ministers of the Council of Europe).

Further, the open appeal of the human rights organizations after the competition emphasized that the national competition for the selection of three candidates for the position of ECtHR judge was generally contrary to the Recommendations of the PACE and the Committee of Ministers of the Council of Europe[1], and that its organization and conduct did not comply with the principles of democratic procedure, fairness, openness, accountability and non-discrimination. Thus, the selection committee was more professional than in the first competition in 2019, but it again consisted of five law professors who re-elected three law professors. Furthermore, it was confronted with the fact: Regulations on holding the competition with the discriminatory norms were already adopted and published with the composition of the Commission in the  Presidential Decree No. 63/2021 of 19 February, and the Commission could not hold it in any other way.

As a result, all persons who are not citizens of Ukraine were deprived of the opportunity to participate in the competition. Human rights practitioners, practicing lawyers with extensive experience working with the ECtHR, were not able to participate in the competition Commission or in any way control the competition. The competition was not transparent, it was only possible to learn at least something about its course from the comments of the candidates. The criteria for determining the winners were not made public and were even unknown to the contestants themselves. The selection procedure also remained unknown. A written decision or at least a press release of the commission explaining the reasons for such selection, why Mykola Gnatovsky, Oleksandr Merezhko and Gayane Nuridzhanyan were chosen as the winners out of 19 candidates, was never published. The commission was also supposed to determine and publish the ranking of candidates, but this did not happen.

The candidacy of Mykola Gnatovsky, the undisputed favourite of the competition, who has headed the European Committee for the Prevention of Torture and Ill-Treatment for the last four years, a priori did not raise questions, we have seen his high qualification many times. Gayane Nuridjanyan is known professionally as a strong expert in the jurisprudence of the European Court of Human Rights and in international criminal law, but it is unclear why she was chosen and not, say, Victoria Cherniychuk or Valeria Lutkovska or Oksana Preobrazhenska with their rich practical experience and deep knowledge. And the appearance of Oleksandr Merezhko in the top three surprised many observers. Yes, he is a well-known expert in international law, but in other fields, and has no practice working with the ECtHR. Oleksandr Merezhko did not show the moral qualities that are necessary for the position of a judge – devotion to the law and the ability to defend one's position against the government or public opinion. In my opinion, if the competition had been organized properly, he would have had little chance of getting into the top three. Among the candidates were prominent practicing lawyers Arkadiy Bushchenko (for the last four years a judge of the Criminal Chamber of the Supreme Court), Gennadiy Tokarev and others who have won hundreds of cases in the ECHR, and other strong lawyers and law practitioners.

Will this second failure be a lesson for the state, will the work on mistakes be done? Because the experience of 2019, when the Ukrainian list was also rejected, did not become such a lesson. To sum up everything we know about the competition, we can say that only the requirements for gender balance and knowledge of the two official languages of the Council of Europe – English and French – were taken into account.

It should be noted that when the last three candidates for the position of ECtHR judge were elected last time in 2008, the selection procedure was not as rigidly formalized as it is now (when even the resumes of candidates must be submitted in a certain form provided in the normative act!), the Advisory Panel of Experts was not established, and the requirements for candidates were much less strict. I was then a member of the Selection Commission, there were far fewer good candidates, but we were able to suggest three strong, in my opinion, qualified candidates (Sergiy Golovaty, Stanislav Shevchuk, Ganna Yudkivska), and this list was immediately accepted by the PACE without hesitation. The election of the PACE Committee for Selection of Judges and the PACE vote surprised many observers in Ukraine, but as time has shown, Ganna Yudkivska has had a brilliant career at the ECtHR, becoming President of the Court Section and one of the most respected lawyers in Europe.

My recommendations for the third competition are as follows. To form a balanced selection commission, which would include not only scientists and teachers of universities, but also other lawyers: representatives of the judicial, legal, human rights communities, while maintaining the gender balance. The main requirements for the members of the Commission: high qualification in the jurisprudence of the European Court of Human Rights, independence and good reputation in society. The Commission itself should prepare the Regulations for the competition, taking into account the following recommendations of the PACE and the Committee of Ministers of the Council of Europe, and coordinate it with the Advisory Panel of Experts. And to hold a competition under this Regulation in accordance with the requirements of the Council of Europe: the competition must be sufficiently open and transparent, information about candidates must be made public, the results of each stage must be published for all candidates, interviews with candidates must be conducted in the same procedure with the same questions, the Commission should rate all candidates and the first three with the highest rating should be suggested to the Advisory Panel of Experts. After the communication with the Advisory Panel and approval of the list, it is sent to the PACE Committee for the Selection of Judges. In my opinion, it is appropriate to record each meeting of the Commission and make these minutes public.

I hope that the third competition will be successful and that Ukraine will offer the top three candidates for the position of ECtHR judge. A strong professional independent judge from Ukraine in the ECtHR, who is not subject to any influence, is the key to success in a difficult legal war with Russia, which is now well demonstrated by Ganna Yudkivska.

[1] National procedures for the selection of candidates for the European Court of Human Rights. PACE Resolution 1764 (2010),

https://pace.coe.int/en/files/17914/html

Nomination of candidates and election of judges of the European Court of Human Rights. PACE Resolution 1646 (2009),

https://pace.coe.int/en/files/17704/html

Procedure for selection of judges for the European Court of Human Rights. PACE Resolution 2248 (2018), https://pace.coe.int/en/files/25213/html

Resolution of the Committee of Ministers of the Council of Europe (2010) 26 on the establishment of an Advisory Panel of Experts on Candidates for the position of Judge of the European Court of Human Rights, https://vm.ee/sites/default/files/content-editors/Res_2010_26_eng.pdf

Guidelines of the Committee of Ministers of the Council of Europe on the selection of candidates for the post of Judge of the European Court of Human Rights, https://rm.coe.int/16805cb1ac