The year 2024 has been of significant electoral importance, not only in various countries but also for the judges at the ECtHR. While 5 judges are elected each year on average, no fewer than 15 judges were supposed to be elected in 2024 (see here, § 65), with 10 ultimately elected, including one from Poland.
The election of highly competent, independent judges is of paramount importance to the Court’s authority and legitimacy, as it should facilitate acceptance of its rulings, in particular by the highest national jurisdictions.
According to Article 22 of the ECHR, “[t]he 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”. The election of ECtHR judges is a pivotal responsibility of the Parliamentary Assembly of the Council of Europe (PACE). Nevertheless, its fulfilment is contingent upon State Parties’ cooperation, as PACE can only elect eminent jurists if they have been previously proposed by national governments.
For the past three and a half years, PACE was unable to elect a judge in respect of Poland as the three lists submitted by Poland’s previous conservative and populist Law and Justice Party (PiS) Government were deemed to be inadequate. However, the list submitted in July 2024 by Donald Tusk’s current liberal government was accepted. On 1 October 2024, Anna Adamska-Gallant was elected as the ECtHR’s new Polish judge. She is to replace Krzysztof Wojtyczek, who was elected in 2012 from among the candidates also put forward by the then liberal government of Donald Tusk and whose term expired on 31 October 2022.
One might be tempted to conclude that this sequence of events is indicative of ideological biases on the part of PACE. As asserted by the conservative NGO European Centre for Law & Justice (ECLJ) in 2022, PACE may be perceived as being opposed, in principle, to candidates proposed by conservative governments. The aim of this blogpost is to show that there is no politically motivated unfairness at play here. In fact, the Polish experience is illustrative of the crucial importance of national selection procedures in the process of electing judges to the ECtHR. Before examining the Polish saga, this post will present the procedure for electing ECtHR judges, as well as the main current challenge, namely the lengthy delays in the election of new judges.
- The procedure for electing ECtHR judges in a nutshell
Article 22 of the ECHR sets out a two-stage procedure for the election of judges.
The procedure’s initial phase is conducted at the national level. The Contracting States’ governments are expected to submit a list of three candidates to PACE within the deadline set by its Secretary General. Candidates’ profiles must comply with the minimum requirements set out in Article 21 § 1 of the ECHR, according to which “[t]he judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence”. At the High-Level Conference held in Interlaken in 2010, the Contracting States were called upon to ensure “full satisfaction of the Convention’s criteria for office as a judge of the Court”. As a follow-up to this Declaration, the Committee of Ministers established the Advisory Panel of Experts on Candidates for Election as Judge to the Court. The Panel’s role is to provide national authorities with confidential expert advice on whether all the shortlisted candidates meet the conditions for election to the post of judge, before the list is submitted to PACE. Subsequently, the Committee of Ministers adopted the Guidelines on the Selection of Candidates for the Post of Judge at the ECtHR, which provide recommendations as to how the national selection should be conducted.
The second stage of the procedure involves PACE. The documents sent by national authorities are examined by PACE’s Committee on the Election of Judges at an initial briefing session held in camera. Such documentation must include a description of the national selection procedure along with the three selected candidates’ CVs. Since 2018, a representative of the Advisory Panel has been invited to attend the briefing sessions. The Committee may conclude its deliberations by recommending that the Assembly reject the national list without interviewing the candidates. Such recommendation may be based on procedural or substantive grounds and has to be ratified by PACE. In the event that the list is not rejected at this juncture, the Committee conducts interviews with each of the three candidates. It may still recommend rejection of the list if one or more of the candidates are deemed to be ineligible. If the list is not rejected, the Committee votes on its preferred candidate, who is mentioned in the recommendation communicated to the Assembly. The Committee’s recommendations are succinctly reasoned and employ standardised wording indicating the approximate result of the vote but information is conveyed confidentially to the national authorities concerned. PACE then elects one of the candidates for a nine-year term of office.
Although the procedure is initiated approximately one year before the intended election date, timely election of new judges remains a persistent challenge.
- The persistent challenge of lengthy delays in the election of new judges
Analysis of the country-by-country “table of progress” published on PACE’s website reveals that delays in filling judicial vacancies have been a recurring problem over the past decade.
Of the 12 sitting judges whose mandate expired or will expire in 2024, 8 have been or will shortly be replaced by newly elected judges (from Bulgaria, Luxembourg, Liechtenstein, Ireland, Latvia, Serbia, Finland, and Austria), but the election procedure failed in 4 other cases (Andorra, Armenia, Monaco and the Slovak Republic). Furthermore, the sitting judge from Bosnia and Herzegovina, whose mandate expired on 2 December 2021, has yet to be replaced, as the Government failed to submit a list in 2021 and again in 2024. Finally, of the 10 elections successfully completed in 2024, 2 concerned sitting judges, one from Lithuania and the other from Poland, whose mandates had expired in 2022.
Similar delays occurred in previous years. For example, in 2022 the election of new judges took place prior to the expiry of a sitting judge’s term of office in one case (Croatia) and was delayed in 5 other cases (Poland, Lithuania, Romania, Denmark and Island). In 2017, the election of new judges took place in due time in 2 cases, while the procedure was delayed in 5 others (here, p. 22, footnote 113).
As a result, over the past decade, 7 sitting judges’ tenure has de facto been extended over one additional year, namely in the cases of Lithuania (15 months), Albania (20 months), the Slovak Republic and Poland (23 months), Türkiye (24 months), Ukraine (34 months) and Bosnia and Herzegovina (more than 34 months).
Two factors have contributed to these delays.
Firstly, there have been delays in State Parties’ presentation of lists of candidates. According to the Steering Committee for Human Rights (CDDH), from “January 2017 to December 2022, of the 29 State Parties which were invited by the Assembly to present their list of candidates […] 10 State Parties presented their lists with a delay of less than one year (ranging from two weeks to seven months); one State Party presented its list after one year of the deadline; and three State Parties ha[d] still not submitted their lists after one year of the deadline indicated by the Assembly” (here, pp. 9-10, footnote 30).
Secondly, delays may occur if the Assembly rejects the list(s) presented by a State Party. Over the past decade, a total of 77 lists were presented by national authorities, 51 of which resulted in the election of new judges, while the election procedure was unsuccessful in the remaining 26 cases. In other words, the election procedure failed in approximately 34 % of cases, despite the fact that the States concerned had presumably received advice from the Advisory Panel. This may suggest that the Panel’s advice was not followed. A cause for further concern is that a few States had their lists rejected more than once. 38 submitted lists (50 %) led to the election of a new judge at the first attempt. Of the 26 lists that did not result in the election of a new judge, 18 were formally rejected by the Assembly. In 7 cases, the national list was formally rejected only once (Hungary in 2016, Georgia in 2017, Ukraine in 2021, Denmark in 2022, Serbia in 2023, and Cyprus and Andorra in 2024). In 4 instances, the national lists were formally rejected twice (the Slovak Republic in 2013 and 2014, Azerbaijan in 2015 and 2016, Albania in 2016 and 2017, and Türkiye in 2017 and 2018). Poland is the only State to have presented lists that were rejected three times in a row, in 2021, 2022 and 2023. Of the 18 rejected lists, 3 were rejected on procedural grounds (Hungary and Albania in 2016, and Poland in 2021), and 15 were rejected on substantive grounds. In addition, there were 4 instances where candidates withdrew before the formal rejection of the list (Monaco in 2015, Türkiye in 2018, Iceland in 2022 and Austria in 2024) and 4 other cases where PACE’s Committee postponed its decision for unknown reasons (Georgia in 2016, and Serbia, Monaco and Slovenia in 2024).
These figures make it clear that governments present an excessive number of inadequately qualified candidates (see also here, p. 14 and here, § 86), and that Poland had the most unsatisfactory results.
- The saga of the Polish lists
Anna Adamska-Gallant’s election in October 2024 resulted from the fourth attempt to elect a judge in respect of Poland. The three previous attempts, made under the conservative PiS Party’s rule, had been unsuccessful owing to the rejection of the lists submitted. It would appear that this was mainly due to an inherent flaw in the national selection procedure that prevented submission of highly qualified and genuinely independent candidates.
The rejection of the first list in 2021
The PiS Government submitted the first list to PACE on 8 March 2021. PACE endorsed its Committee’s recommendation to reject the list without interviewing the candidates, “in view of the national selection procedure not being in line with the standards required by the Assembly and the Committee of Ministers”. The then Polish Minister of Foreign Affairs described the decision as “incomprehensible”, adding that “[o]ne can get the impression that the decision […] was based on different standards than applied to other countries, as well as to the previous government of the Republic of Poland in 2012”. He pointed out that the selection procedure employed in 2021 was identical to the one successfully used in 2012 and comparable to the solutions adopted in Germany, Austria and Spain, which had all been accepted by PACE.
This statement requires some clarification. It should be borne in mind that the CoE has only been placing particular emphasis on national selection procedures since the 2010s, due to repeated concerns regarding their quality (e.g. here, § 102; here, § 57, 59; and here, § 24). The Committee of Ministers set up the Advisory Panel in 2010 and adopted the Guidelines on the Selection of Candidates on 29 March 2012, two weeks after the submission of Poland’s 2012 list. The Advisory Panel only started assessing the quality of national selection procedures in 2019 (see here, § 20 and here). Similarly, PACE’s Committee has only recently begun to pay closer attention to the Guidelines and has become stricter in assessing their implementation (see here, § 2.4.2 and here, pp. 8-9). Consequently, what was previously accepted may no longer meet current standards.
According to the 2012 Guidelines, “[t]he [national] body responsible for recommending candidates should be of balanced composition. Its members should collectively have sufficient technical knowledge and command respect and confidence. They should come from a variety of backgrounds, be of similar professional standing and be free from undue influence”. Whereas some States, such as Austria (compare here and here), modified the composition of their selection bodies in order to align their procedure with the Guidelines, the PiS Government did not significantly alter the Polish selection committee’s composition, which remained entirely determined by the executive until 2024. The former government even expressed its opposition to the mere fact that the Advisory Panel could examine national procedures (here, p. 19).
It is true that PACE has not automatically regarded all selection procedures carried out by exclusively executive-member entities as flawed (e.g. Spain in 2017 and Germany in 2019). However, during the intergovernmental discussions held within the CDDH in 2017-2018, it was emphasised that national selection bodies are “at the heart of the selection procedure” and that improvement of their composition would help prevent political influence on the selection procedure (here, § 59). This may have implications for PACE’s future assessments. Moreover, in addition to national selection bodies’ composition, PACE’s Committee also attaches significant importance to shortlisted candidates’ profiles. Hence, it is possible that the Committee also deemed (some of) the Polish candidates to be under-qualified. Whatever the case, PACE explicitly requested the Polish Government “to submit a new list of candidates”.
The rejection of the second list in 2022
In July 2021, amendments were made to the Polish selection procedure, affording NGOs the opportunity to observe interviews with candidates at the national level. Nonetheless, the former Polish Government submitted exactly the same list once more on 6 December 2021. Once again, PACE’s Committee proposed rejection of the list without interviewing the candidates, this time on substantive grounds, which suggests that at least one of the candidates did not meet the criteria set forth in Article 21 § 1 of the ECHR (see here, § 20).
The rejection of the third list in 2023
The third list only included one new candidate. Unsurprisingly, the Committee on the Election of Judges yet again recommended rejecting the list for substantive reasons, without interviewing the candidates. The former Polish Government criticised the rejection of a list without the candidates being interviewed (here, pp. 20-21). And yet, in its latest Activity Report, the Advisory Panel highlighted that “for the first time in its short history”, it had “exceptionally felt itself obliged to express a negative opinion as to candidates’ suitability on account of an objectively perceived lack of independence and impartiality on their part vis-à-vis the government nominating them” (here, p. 20, § 86). Given the period in question, this may pertain to the lists submitted by Ukraine, Iceland, or Poland. As the first two States’ governments promptly changed their initial lists, it seems plausible that this comment refers to the Polish list. The PiS Government’s failure to propose a new list of candidates in 2023 tends to further support this hypothesis.
The acceptance of the fourth list in 2024
The current Polish Government submitted an entirely new list of candidates on 29 July 2024. New regulations had introduced three major changes to the selection procedure. Firstly, the appointment of the Selection Committee now involved bodies independent from the executive, and the selection committee included representatives of the legal professions and the ombudsman’s office. Secondly, interviews with experts in English and French were conducted. Thirdly, a public meeting with the shortlisted candidates was held in the Polish Senate. Although there may still be room for improvement, this fourth list was accepted by PACE, and a new judge from Poland was finally elected after a wait of more than three and a half years.
Conclusion
The Polish saga demonstrates the critical role national selection procedures play in electing high-quality judges to the ECtHR. If national authorities fail to submit excellent candidates to the Advisory Panel and subsequently to PACE’s Committee on the Election of Judges, the whole process becomes blocked. National authorities must therefore live up to their responsibilities.
So must PACE. It must provide the necessary guarantees to ensure that the most qualified and respected candidates are elected and that their democratic legitimacy is indisputable. For this reason, members of the Committee on the Election of Judges must have “appropriate knowledge or practical experience in the legal field”. Moreover, this Committee is one of three PACE committees whose members are appointed on the proposal of political groups rather than of national delegations, which provides “a link […] with the prevailing political trends in the Member States of the Council of Europe” and so “gives judges a measure of legitimacy for interpreting the Convention as a “living instrument”, taking into account constant change in European societies” (here, § 29). In practice, PACE typically aligns with the Committee’s recommendations, electing either the first or, on rare occasions, the second candidate deemed most suitable by the Committee. While some undue political lobbying may have occurred during plenary sessions (e.g. here, pp. 29-30), only one suspect case has been identified since 2015, when the Committee on the Election of Judges was set up (compare here and here). It cannot be concluded that the Committee or the Assembly are reluctant, in principle, to elect conservative candidates as judges to the ECtHR, as might be claimed in respect of Poland’s experience.
