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6 November 2000
70-year age limit for the judges of the European Court of Human Rights
Committee on Legal Affairs and Human Rights
Rapporteur: Lord Kirkhill, United Kingdom, Socialist Group
The European Convention on Human Rights provides that judges on the Court retire upon reaching the age of 70. Although judges may sit on the Court "until replaced" the report holds the opinion that the age limit must be respected. As the judge on behalf of Italy has now reached the age of 70 the draft resolution urges the Italian government to submit a list of three new candidatures enabling the Assembly to proceed with the election of a successor. It also urges other governments to submit candidatures at least six months before the judge concerned reaches the retirement age.
I. Draft resolution
1. The Assembly recalls that in accordance with Article 23 § 6 of the European Convention on Human Rights "the terms of office of judges shall expire when they reach the age of 70". It also recalls that the Italian judge reached this age at the beginning of September 2000.
2. It is therefore the responsibility of the High Contracting Party concerned, i.e. Italy, to submit a list of three candidates and, subsequently, of the Assembly to proceed to the election of a new judge (Article 22 § 1 of the Convention).
3. The Assembly considers that this is a primary obligation of the bodies concerned and that Article 23 § 7 ("Judges shall hold office until replaced") is of a subsidiary nature and aims at guaranteeing the continuity of the work of the Court.
4. In this respect it is not relevant that the first partial renewal of the Court will take place next year and that the Italian judge is among those who will have to be re-elected.
5. The Assembly considers it essential that the European Court of Human Rights be considered as a "model" court in Europe and that the provisions of the Convention, whether of a substantial or of a procedural nature, are scrupulously applied. The Assembly considers that situations similar to that of the Italian judge may arise in the future and that a first precedent, in which the age of retirement as provided for in the Convention is not respected, may lead to undesirable consequences in the years to come.
6. The Assembly does not agree with the point of view of the Committee of Ministers, as expressed in its reply to Written Question No 386 (see Doc. 8781), in which it considered that the present situation was of an exceptional nature. Nor does it see how the election of a new Italian judge would "disrupt the operation of the new Court in this situation".
7. The Assembly welcomes the active role played by the Secretary General in seeking to resolve this delicate matter.
8. The Assembly therefore draws the attention of members of the Court to the duty of all judges to retire upon reaching the age of 70.
9. It urges
i. all Contracting Parties to the Convention to submit a new list of candidates at least six months before the judge in the Court sitting on behalf of that Contracting State reaches the retirement age, so as to enable his or her replacement as soon as he or she reaches the age of 70;
ii. the Republic of Italy to submit, without further delay, a list of three candidates with a view to the election of a new judge on behalf of Italy.
II. Explanatory memorandum by Lord Kirkhill, Rapporteur
A. Introduction – the new and the old system
1. It may be recalled that Protocol No 11 to the European Convention on Human Rights1 entered into force on 1 November 1998. This Protocol brought about considerable changes in the European Court of Human Rights - which until then had been made up of part-time judges living in their home countries - by replacing it by a full-time Court with full-time judges being paid an annual salary and residing permanently in Strasbourg. Article 23 of the Convention now lays down the terms of office of these judges who are elected for a period of six years. Paragraph 6 of Article 23 provides that the terms of office of judges shall expire when they reach the age of 70, whereas paragraph 7 provides that "The judges shall hold office until replaced. They shall, however, continue to deal with such cases as they already have under consideration.".
2. As the Court would function on a permanent basis, it was deemed appropriate to introduce an age limit, as exists in most domestic legal systems.2
3. The original version of the Convention, concluded fifty years ago and which remained in force until 1998, did not contain any age limit. It can easily be seen that such an age limit was not necessary, especially in the early years of the Court when it had only a few cases to deal with and when it was of the utmost importance to have the benefit of the mature experience of a number of well-known eminent European lawyers. Among them one could mention Professor René Cassin, a Nobel Peace Prize-winner, who became President of the Court and served the Court until he was well over 90, and also Mr Rolin, who had previously been a Chairman of our Committee on Legal Affairs and Human Rights. In addition, there were a number of others, some of whom were well over 80 years' of age.
4. However, at a certain moment, the disadvantages of these elderly judges also became apparent, especially as a considerable number of them died while in office. After each death or resignation the Assembly had to proceed to a special election and it became concerned by the need to hold such elections so frequently. This led the Assembly to adopt, in 1977, a resolution and a recommendation on the qualification of candidates for the European Court of Human Rights. In its Resolution 655 (1977), the Assembly invited its members not to vote for candidates who had not given a formal undertaking to retire from the office of judge during the year in which they reached the age of 75 and in its Recommendation 801 (1977) the Assembly asked the Committee of Ministers to invite the governments of member States to put forward candidates below the age of 70 and to ask every candidate to give a formal undertaking that, if elected, he or she would retire from the office of judge during the year in which he or she reached the age of 75.
5. This system worked well for a number of years, but – for various reasons – was no longer applied in the 1990s.
B. The judge in respect of Italy
6. Judge Benedetto Conforti reached the age of 70 on 3 September 2000 and his term of office therefore expired last September. The Secretary General (or the Director General of Human Rights on his behalf) twice wrote to the Permanent Representative of Italy to draw his attention to this fact and to invite the Italian government to produce a list of three candidates to replace Judge Conforti on time. I, as Chairperson of the Sub-Committee on the election of judges, had hoped to be in possession of the list of candidates in time to hold interviews of the three candidates, thus enabling the Assembly to proceed to an election during either the April or the June 2000 part-session. However, when no list of candidates appeared to have been transmitted I became more and more concerned about the situation and, in May 2000, I put a written question to the Committee of Ministers. The text of this question and of the reply of the Committee of Ministers, dated 21-26 June 2000, made it clear that no list of candidates would be submitted. In its reply the Committee of Ministers recalled that the term of office of Judge Conforti was fixed to expire on 31 October 2001, together with half of the judges elected to the Court, in accordance with the provisions of Article 23 §§ 1 and 2, of the Convention. Furthermore, the Committee of Ministers wished
"to point out the exceptional nature of the present situation in the wake of the establishment of the new Court and of Protocol No 11, with the terms of reference of half the judges of the Court due to expire on 31 October 2001. The procedure for the elections concerning half of the judges, according to the terms of Resolution 1200 itself, would be initiated one year prior to the expiry of their terms of office, i.e. some three or four months hence.
The Committee of Ministers would like to draw the attention of the Honourable Member to the need not to disrupt the operation of the new Court in this situation.
In the light of the foregoing, and having regard also to Article 23 § 7 which provides that 'judges shall hold office until replaced', the Committee of Ministers does not consider it advisable to proceed with elections for a judge in respect of Italy prior to the partial renewal of the Court which will take effect as from 1 November 2001."
7. The Committee on Legal Affairs and Human Rights discussed this matter at several of its meetings and strongly disagreed with the points of view expressed by the Italian side and the Committee of Ministers. It feels that the age limit is clear and strict and certainly not to be tampered with. All staff members of the Council of Europe must retire in the month they reach the age of 65 and this is also a rule copied from national administrations, which does not allow for exceptions. Even in the case of a former Registrar who had been elected by the Court for a period of five years and therefore considered that he should be allowed to continue after the age of 65, this rule was firmly upheld by the Administrative Tribunal of the Council of Europe. Of course a fixed age of retirement has a solid basis in that experience has shown that normally after a certain age the intellectual and above all physical capacities of human beings tend to diminish. There are here of course considerable differences between individuals, but it has been decided and considered right to fix firm age limits for everybody and in the case of the judges in the Court of Human Rights they are already five years more than the retirement age of civil servants.
8. Of course I should stress in this respect that the qualities of Judge Conforti and the way he carries out his duties in the Court of Human Rights are entirely irrelevant.
9. We tried to discuss this matter with the governmental representatives of Italy and, in fact, I raised it during our exchanges of views with the Chairman-in-Office of the Committee of Ministers during the Assembly sessions in June and September. The Committee also invited the Permanent Representative of Italy to several of its meetings, but he excused himself. However, the Italian position seems to be clear, namely that it will not present any candidates before the partial renewal of the Court in November 2001. This means that Judge Conforti will be allowed to sit well beyond the age of 71.
10. Perhaps I should add that the Convention, in Article 23 § 7, second sentence, provides that "Judges shall continue to deal with such cases as they already have under consideration". I do not know what this provision means in practice, but it may well be that a judge, once retired, may continue to sit in the Court for a number of years to deal with cases he had already begun dealing with.
C. Consequences of non-resignation
11. In the Committee on Legal Affairs and Human Rights it has been argued that the validity of the Court's deliberations, and indeed of its judgments, could be contested on the basis of the argument that one of the judges no longer satisfies the criteria for holding office. In my opinion this is going too far and should be seen as contrary to paragraph 7 of Article 23 which I discussed above. Furthermore, if the Court considers that one or several of its judges no longer fulfil the conditions for holding office and no longer have the required qualifications for being a judge it may apply Article 24 of the Convention which provides for the dismissal of judges which can be decided by a majority of two-thirds of the Court. It is not likely that the Court of Human Rights will declare invalid its own judgments, but it is certain that a court, the judges of which give the impression that they do not care very much for the provisions of the Convention as soon as they are against their own interests, would lose a considerable part of its moral authority. Such a loss of moral authority would be detrimental not only to the Court of Human Rights and to the system of human rights protection under the Convention, but it would also undermine the moral authority of the Council of Europe at a time when it is stepping up its action in favour of accession of the European Union to the Convention – which implies that the European politico-legal community takes a close look at how we handle the procedures laid down under that Convention.
D. What should the Assembly do prior to the election of a judge to the Court of Human Rights in order to make sure that the 70-year age limit is respected?
12. In accordance with the Assembly's decisions, a sub-committee of the Committee on Legal Affairs and Human Rights now interviews all the candidates to the European Court of Human Rights. I have been chairing that Sub-Committee and therefore have spoken to most of the candidates. The interviews are confidential and I am therefore not allowed to report what has been said, but normally, in all interviews of candidates reaching the age of retirement, I or one of the other members of the Sub-Committee asked the candidate what – if elected judge – he would do on reaching the age of retirement. Of course we would not have recommended the election of any candidate who said that he would continue without resigning.
13. As I described in Chapter A above, in the past the Assembly has applied a system whereby all candidates were asked to make a formal declaration that they would resign at the age of 75. One could envisage asking the candidates to do the same, but still the question would arise what to do if they did not resign in spite of their declaration and if their government did not present a new list of candidates even though the judge had resigned. Thus I am also not in favour of such a written declaration because it has shown not to be very effective in the past and would not be considered as very dignified in the case of persons holding such a high judicial office in Europe.
14. However, the Assembly – if this situation repeats itself and the Committee of Ministers maintains its point of view as reproduced in its reply to Written Question No 386 – may well be advised to refuse to elect any judge over the age of 64 at the time of his or her election.
15. The age limit (70 years) as laid down in the European Convention on Human Rights is a clear limit and should be respected by all the parties concerned. The age of 70 years could be considered arbitrary but it is also reasonable, especially for an office which does not only require high intellectual and moral qualities, but also good health. The conclusion of this report is therefore that one should firmly stick to it and not allow any exceptions which could easily create a precedent. What one should avoid at all costs is that, in a few years time, there will be a court with a number of judges well over 70, some of whom would no longer have the physical capacity to work long days in the office and sometimes also in the evening, week after week. It is for these reasons, described in more detail above, that the Assembly should make an urgent appeal to the Italian government to submit a list of candidates without further delay and that one should do one's utmost to prevent a precedent from becoming tradition and routine.
Reporting committee: Committee on Legal Affairs and Human Rights
Reference to committee: Doc 8845 and Reference No. 2541 of 29 September 2000
Draft resolution adopted unanimously by the committee on 2 November 2000
Members of the committee: MM Jansson (Chairperson), Bindig, Frunda, Mrs Err (Vice-Chairpersons), Mrs Aguiar (alternate: Mr Mota Amaral), MM Akçali, Mrs van Ardenne-van der Hoeven (alternate: Mr Dees), MM de Aristegui, Arzilli, Attard Montalto (alternate: Mr Asciak), Bal (alternate: Mrs Gülek), Bartumeu Cassany, Bruce, Bulavinov, Clerfayt, Contestabile, Demetriou, Derycke, Dimas, Enright, Floros, Mrs Frimansdóttir, MM Fyodorov (alternate: Mr Maltsev), Gustafsson, Holovaty, Mrs Hren-Vencelj, Mrs Imbrasiene, MM Jaskiernia, Jurgens, Kelemen, Lord Kirkhill, MM S. Kovalev (alternate: Mr N. Kovalev), Kresák, Mrs Krzyzanowska, Mr Le Guen (alternate: Mr Baumel), Mrs Libane, MM Lintner, Lippelt, Loutfi, Magnusson, Mrs Markovic-Dimova, MM Marty, McNamara, Moeller, Nastase (alternate: Mrs Ionescu), Mrs Ninoshvili, MM Pavlov, Pollo, Mrs Pourtaud, MM Rodeghiero (alternate: Mr Provera), Mrs Roudy (alternate: Mr Bordas), Mrs Serafini, MM Simonsen, Skrabalo, Solé Tura, Solonari, Spindelegger, Svoboda, Symonenko, Tabajdi, Tallo, Vera Jardim, Mrs Vermot-Mangold (alternate: Mrs Nabholz-Haidegger), Mr Vyvadil, Mrs Wohlwend, Mrs Wurm
N.B. The names of those members who were present at the meeting are printed in italics.
Secretaries to the committee: Mr Plate, Ms Coin and Ms Kleinsorge
1 Officially "the Convention for the Protection of Human Rights and Fundamental Freedoms", hereafter called "the Convention".
2 See paragraph 63 of the explanatory report to Protocol No 11.