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Case Law - (12/02/2008)

Type: Court’s first advisory opinion delivered

Authority: European Authorities: European Court of human rights

Date: 02/12/2008

Subject: The Grand Chamber of the European Court of Human Rights has today delivered its first advisory opinion. The Court has unanimously concluded that it is not compatible with the European Convention on Human Rights for a list of candidates for election to the post of judge at the Court to be rejected on the sole ground that there is no woman included in the proposed list. It has also called for exceptions to the principle that lists must contain a candidate of the under-represented sex to be defined as soon as possible.Under Article 471 (advisory opinions) of the European Convention on Human Rights, the Court was asked by the Council of Europe’s executive arm, the Committee of Ministers, to give its opinion on certain legal questions concerning gender balance in the composition of the lists of candidates submitted for the election of judges to the Court (see below for details).This is the second time that the Court has received a request from the Committee of Ministers for an advisory opinion. The first request concerned the co-existence of the Convention on Human Rights of the Commonwealth of Independent States and the European Convention on Human Rights. On 2 June 2004 the Court delivered its decision on that question, in which it concluded unanimously that the request did not come within its advisory competence. The Court concluded that, in not allowing any exceptions to the rule that the under- represented sex must be represented, the current practice of the Assembly was not compatible with the Convention: where the country concerned had taken all the necessary and appropriate steps with a view to ensuring that the list contained a candidate of the under- represented sex, but without success, and especially where it had followed the Assembly’s recommendations advocating an open and transparent procedure involving a call for candidates, the Assembly might not reject the list in question on the sole ground that no such candidate featured on it. Accordingly, exceptions to the principle that lists must contain a candidate of the under-represented sex should be defined as soon as possible.

Classification: General theme