“High Judicial Office” and “Jurisconsult of Recognised Competence”: Reflections on the Qualifications for Becoming a Judge at the Strasbourg Court
Christoph Grabenwarter/Matti Pellonpää
The qualifications required for judges of the European Court of Human Rights are defined in Article 21 of the European Convention on Human Rights. Apart from the condition of high moral character, there are two main avenues to gain the necessary qualification: 1) judicial experience and 2) recognition as a jurisconsult. Especially the notion of “jurisconsult of recognised competence” calls for clarification. This paper provides an extensive analysis of the concept, starting with a comparison between the Statute of the Permanent Court of International Justice, the Statute of the International Court of Justice and the European Convention of Human Rights. The considerations presented militate in favour of a rather strict interpretation of the jurisconsult criterion and describe a generally accepted core area of the notion. Since the academic systems and their respective reputations differ significantly throughout Europe, a candidate’s competence can only be assessed in a global evaluation and the goal must be to obtain as comprehensive a picture as possible. Following from this, the criterion of high judicial office will be addressed.
The paper will show that a detailed engagement with Article 21 of the Convention is of utmost importance since the high level quality of judges is a precondition for the credibility of the Court; this credibility in turn is a precondition for the effectiveness of the Court in its task of securing and furthering human rights in Europe.
In this analysis of the qualifications for becoming a judge at the Strasbourg Court, frequent recourse will be made to the Advisory Panel of Experts on Candidates for Election as judge to the European Court of Human Rights established in 2010. The work of the Panel adds an element of independent judicial expertise potentially guaranteeing that political considerations do not prevail over legal ones. The paper outlines the challenges the Panel faces and potential areas for improvement in order to guarantee judges whose qualifications are beyond any doubt.
The Panel’s examination of candidates has been intensified over recent years and takes into account the information on national selection procedures made available by national Governments. While no representative of the Advisory Panel participates in the hearings of the candidates, this could provide an addition to the Panel’s impression of the candidate. Moreover, the experience of the Panel points to other problematic aspects. One case in point is the underrepresentation of career judges as compared to professors. While this may be due to a variety of reasons, it is essential for the credibility of the Court to demonstrate a diversity of experience and background of judges. In addition, there have been instances where candidates presented under the jurisconsult criterion did not fulfil it in the Panel’s view, but were elected nonetheless. While this is certainly problematic, the activity of the Panel has improved the overall level of the quality of candidates.