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On January 26th 2011, Mr. Frank Schürmann the representative of the Swiss confederation for the ECHR announced the selection of 3 candidates for the election of the Judge for Switzerland (2011-2020). This Judge will be the 5th for Switzerland in the history of the Court. He will replace Judge Malinverni (2007-2011) who took office on January 19th 2007 after being elected on June 27th 2006.
According to the appendix AS/Jur(2008)52 of the report 11767 of the Committee on Legal Affairs and Human Rights of the Assembly, the previous selection process in 2006 was not respecting any of the 5 principles surveyed. There was no call for candidature in the specialized press. The selection process was not made public and lacked any formal legal basis. Moreover, there was no assessment of candidates’ linguistic abilities, no consultation with civil society bodies and no involvement of a panel of independent experts.
Therefore the previous selection process in 2006 didn’t meet the criteria of fairness, transparency and consistency required by Recommendation 1649 (2004) even though the representative of the Swiss confederation claimed the opposite.
On January 27th 2009, a Resolution 1646 (2009) was adopted by the Assembly (PACE) underlining “the importance of appropriate national selection procedures in order to ensure and reinforce the quality, efficacy and authority of the Court“, asking that “the selection bodies/panels (and those advising on selection) are themselves as gender-balanced as possible” and warning : “In addition, in the absence of a fair, transparent and consistent national selection procedure, the Assembly may reject such lists.”
The selection process in 2010 didn’t meet again the criteria. There was no call for candidature in the specialized press. The selection process was again done in secret without any formal legal basis. Again, there was no assessment of candidates’ linguistic abilities, no consultation with civil society bodies and no involvement of a panel of independent experts.
The call for candidature (see below) attracted only… 12 candidates. 6 candidates were removed by the government from the selection process. The gender balance of the selection panel is secret as the whole process. Interestingly, Mr. Frank Schürmann the representative of the Swiss government refused to communicate any document relating to this selection process and the list of the 12 candidates.
Switzerland is home to 8,500 lawyers and 1,089 professional judges but the federal council didn’t select any lawyer as candidate. Instead the federal council proposed 2 lower court judges out of its 3 candidates in violation with point 4.5 of Resolution 1646 (2009) which states : “if possible, no candidate should be submitted whose election might result in the necessity to appoint an ad hoc judge“. In 2006, the only candidate who was a judge Giusep Nay received only 13% of the vote of the Assembly.
The 3rd candidate, Ms. Helen Keller seems then the only real candidate of the Swiss government. After M. Walter Kalin (Switzerland) resigned for an unknown reason, she was nominated by the Swiss government for the election of the member of the Human Rights Committee (CCPR). On July 28th 2008, she was “elected” without vote…by being the only candidate (press release from Swiss govt). After being again nominated by the Swiss government, she was “reelected” on September 2th 2010 as one of the 9 members among 18 candidates. Her mandate will expire on December 31th 2014.
MP Priti Patel declared at the House of Commons that the public have referring to the ECHR judges “disdain for the unelected bureaucrats in Strasbourg“. Judge Jean-Paul Costa answered in an interview : “Well it’s not necessarily pejorative to be a bureaucrat or to be unelected..After all high civil servants are unelected bureaucrats..When I shave myself in the morning, I see my face in the glass and I don’t see myself an unelected bureaucrat.“
Whether or not the Assembly (PACE) will reject the list of candidates submitted by the Swiss government will be a test on the pledged commitment to a “fair, transparent and consistent” selection process. It will also have lasting consequences on the legitimacy of the Court.
On April 12th 2011, Ms. Helen Keller was elected by 103 members of the Assembly on 318 representatives (only 160 were voting). It will be her first position ever as a judge. In an interview to SwissInfo, Judge Keller declared that she will resign from being a member of the Human Rights Committee (CCPR) which will trigger the 3rd elections in the last 3 years for the U.N post (4 years mandate).