On the 24thApril 2012, the Parliamentary Assembly of the Council of Europe (PACE) elected the new Belgian judge to the European Court of Human Rights (ECtHR), Paul Lemmens, from an all male short list presented to PACE by the Belgian Government, in contravention of its Council of Europe obligations.
Although the European Convention does not, in itself, require member states to present a multi-sex shortlist of potential appointees, PACE Resolution 1366 (2004) states that it ‘will not consider lists of candidates where the list does not include at least one candidate of each sex’. Following an Advisory Opinion of the ECtHR (2008), Resolution 1366 was amended in order to allow a narrow ‘exception to the rule that the under-represented sex must be represented’ (§54). Accordingly:
single-sex lists of candidates of the sex that is over-represented in the Court [will be considered by the PACE] in exceptional circumstances where a Contracting Party has taken all the necessary and appropriate steps to ensure that the list contains a candidate of the under-represented sex, but has not been able to find a candidate of that sex who satisfies the requirements of Article 21 § 1 of the European Convention on Human Rights.
The Belgian Government relied (unconvincingly) on this provision to justify the presentation of an all-male short list. It explained that after an open and transparent procedure (a public call for candidatures widely published in the Official Gazette and the special-interest press; the call remaining open for a month; and interviewing all nominees without short-listing on the basis of the CV), only one woman came forward. According to the Government, although the sole female candidate met the competence requirement set forth in Article 21 § 1 of the Convention, it considered that she ‘could be classed as not possessing equivalent competence to the three [male] candidates’ eventually shortlisted. Accordingly, she was not short-listed. The Government sought to strengthen its position by highlighting that women were not anymore underrepresented on the Bench since ‘the Court includes 19 women, i.e., over 40% of the judge now serving’.
The justification put forward by the Government is not convincing for several reasons. First, the Belgian Government failed to demonstrate any ‘exceptional circumstances’ leading to its decision to put forward an all-male short-list other than relying on a lack of female candidates self-nominating for the position. Arguably, this passive approach towards the selection of candidates fails to amount to a demonstration that ‘all necessary and appropriate steps’ were taken to present a list of candidates including both sexes, as required by Resolution 1366.
Second, it is only if the Contracting Party is not able to find a candidate of the under-represented sex that satisfies the competence requirement set forth in Article 21§1 of the ECHR that the PACE will consider single-sex list composed entirely of candidates of the over-represented sex. Yet, the Government acknowledged that the sole female candidate to have come forward did meet these requirements. If the Belgian Government were to finally decide that the sole female candidate did actually not possess the necessary competences to be elected as a judge to the ECtHR (quod no) it should have, in the least, considered re-opening the selection procedure and adopting more proactive measures to encourage well-qualified women candidates to apply.
Third, the argument that the current composition of the Court (where approximately 40% of women are serving) would justify the presentation of an all-male short-list misses the point. According to the Resolution 1366, as amended by the Resolutions 1426 and 1627, each State is required to present a list of candidates which includes at least one candidate of each sex, with two exceptions being allowed. First, a Contracting Party may present a single sex list, ‘when the candidates belong to the sex which is under-represented in the Court, that is the sex which is under 40% of the total number if judges belong’ (Resolution 1426). Second, a State may present a single-sex list of candidates of the over-represented sex in exceptional circumstances when the State is unable to find a candidate of the under-represented sex who satisfies the competence requirement (Resolution 1627). Hence, the Resolution 1366 does not allow a Contracting Party to derogate from the rule to present a sexually diverse list of candidates on the basis that the Court is composed of 40% of women. Achieving this threshold of 40% of women serving on the court would only impede Contracting Parties to present all-female lists, as they could do as long as the Court was composed of less than 40% of women.
Finally, ten judges will be appointed before the end of 2012. If the Government of each appointing State fails to respect, as Belgium did, the rule according to which the list of candidates they present must contain at least one candidate of each sex, there is a real risk that the number of women serving on the Court will drop dramatically below the threshold of 40%.
This disappointing decision by the Belgium Government demonstrates a lack of long-term commitment to gender equality in the European Court of Human Rights and is in flagrant disregard of its obligations under PACE Resolutions.
Adélaïde Remiche is a PhD Candidate at the Center for Public Law at the Université Libre de Bruxelles. She is currently leading a project for the Center for Public Law at the Université Libre de Bruxelles which examines gender diversity in continental European judiciaries. (firstname.lastname@example.org)