The Times, October 21, 2003
www.timesonline.co.uk
There Needs to be Reform at the European Court of Human Rights
by David Pannick, QC
In a series of landmark judgments over more than 40 years, the European Court of Human Rights has made Europe a more tolerant and a fairer place to live. But while the court is properly vigilant to condemn any threat to the independence of the judiciary in national courts, its own members are appointed through a system that contains no adequate safeguards against political interference. Interights, the International Centre for the Legal Protection of Human Rights, has produced a report - Judicial Independence: Law and Practice of Appointments to the European Court of Human Rights - that cogently identifies the problems and makes a powerful case for reform.
Each of the contracting states appoints one judge to the court. The state submits the names of three candidates. The Committee of Ministers sends the list to the Council of Europe�s Parliamentary Assembly in Strasbourg. A sub-committee reads the CVs and conducts a 15-minute interview with each candidate. It then ranks the names in an order of preference. Finally, the Parliamentary Assembly votes on whom to elect.
This procedure has been assessed by a group of eminent jurists: Professor Dr Jutta Limbach (former president of the Federal Constitutional Court of Germany); Professor Dr Pedro Cruz Villal�n (former president of the Constitutional Court of Spain); Roger Errera (former member of the Conseil d��tat in France); Lord Lester of Herne Hill, QC (president of Interights); Professor Dr Tamara Morshchakova (former vice-president of the Constitutional High Court of the Russian Federation); Lord Justice Sedley (of the Court of Appeal); and Professor Dr Andrzej Zoll (former president of the Constitutional High Court of Poland).
The group identified the defects in the process. First, states have complete discretion as to how they choose nominees. There are no guidelines, or international assessment of propriety. �Even in the most established democracies,� the report explains, nomination �frequently rewards political loyalty more than merit�. It is �not unusual� for states to propose �former government ministers, senior diplomats or the relatives of key political figures�. The consequence is that �nominees often lack the necessary experience�.
Secondly, the sub-committee of the Parliamentary Assembly is an inadequate safeguard, since most of its members lack human rights expertise. A 15-minute interview is plainly inadequate. The sub-committee gives no reasons for its rankings, some of which �appeared to be based on or influenced by party politics rather than the merits of the prospective judges�.
Thirdly, the Parliamentary Assembly itself is given very limited information on the nominees. �Political groups appear to dictate voting patterns� and �lobbying by states jeopardises the future independence (actual and apparent) of judges�.
Fourthly, these threats to judicial independence are exacerbated because judges need to be re-elected through the same process after serving a six-year term. Some judges may have (or may reasonably be thought to have) one eye on how their judgments will affect support from their own government, and the Parliamentary Assembly, when they are up for re-election.
Article 6 of the European Convention on Human Rights requires that civil rights and obligations shall be determined by an �independent and impartial tribunal�. The European Court has emphasised that whether a national judge is independent depends on the manner of appointment, the term of office, the existence of safeguards against outside pressures and whether there is an appearance of independence. Appearances matter because �what is at stake is the confidence which the courts in a democratic soceity must inspire in the public�. The standards of judicial independence are high because the effective protection of all other rights depends on the rule of law, with judges deciding disputes (as the judicial oath in this country asserts) �without fear or favour, affection or ill will�.
Applying the criteria of Article 6, reforms are urgently required to the system for appointing European Court judges. As the report recommends, the Council of Europe should state minimum standards for national selection procedures: vacancies must be advertised, independent bodies should assess the applicants and governments should normally follow its recommendations. In Strasbourg, the Parliamentary Assembly should be advised by independent and expert persons, who would apply defined criteria, conduct a proper interview and produce a reasoned report of their recommendations.
None of these criticisms applies to the procedures adopted by the United Kingdom when it last appointed a judge to the European Court in 1998. It is the injudicious conduct of other countries and the partisan politics of the sub-committee and the Parliamentary Assembly that are badly damaging the reputation of the European Court of Human Rights.
The author is a practising barrister at
Blackstone Chambers and a Fellow of All Souls College, Oxford
� David Pannick/The Times, London, 21 October 2003
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