The Institute for European Policy and Reform (IPRE) and the Center for Legal Resources of Moldova (CRJM) examined the draft Decision of the Government on establishing the committee for selecting and appointing a judge from Moldova to the European Court of Human Rights (ECtHR) and the regulation for organizing and conducting the competition for the position of judge at the ECtHR. The IPRE and CRJM offer several proposals for improving the selection procedure, at the national level, of the future judge at the ECtHR.

Vladislav Gribincea, president of the CRJM, mentioned in a Facebook post that the regulation developed by the Ministry of Justice lacks a method of evaluation of candidates, adding that the Commission that will select the three candidates would lack independence. 

“We found that the Commission for selecting the three candidates is not fully independent of politics. The method to evaluate the candidates is also practically missing in the project elaborated by the Ministry of Justice. IPRE and CRJM Propose the improvement of the national selection procedure of the future judge from Moldova at the ECtHR,” Gribincea wrote on Facebook.

The two organizations proposed to have a committee formed from experts for the selection of the three candidates. The organizations proposed for the members of the committee to be elected by responsible institutions, instead of the Ministry of Justice. They also advocated for a balanced representation of the parliamentary majority in the committee, including a member of the opposition in the committee. In order to ensure greater independence for the committee, the organizations proposed to avoid including persons who are part of the government in the composition of the Commission.

The organizations also proposed to appoint two members from the Eastern Partnership Civil Society Platform (a representative forum of organizations civil society that includes over 80 non-governmental organizations from Moldova) in the committee instead of one nominal person. This will contribute to a greater representation of civil society in the committee. 

The organizations also proposed to include in the composition of the committee a representative of the Office of the Ombudsman and one from the Lawyers’ Association in Moldova. Thus, a total of 13 members will be appointed to the Selection Committee.

Moreover, the meetings of the committee to be chaired by a President-elect of the committee in order to ensure greater independence for the Commission. 

The organizations proposed introducing reasonable deadlines for the selection of candidates. The two organizations stated that the selection of candidates could take place at the earliest in November – December 2020, and the deadline for submitting candidates to the Government could be February 28, 2021. 

This deadline may seem a bit long, but this will allow a thorough selection of candidates, without exceeding the deadline set by the Council of Europe for Government.

The mandate of the current judge at the ECtHR, Valeriu Grițco, expires on December 2, 2021. According to Resolution no. 1646 (2009), the Council of Europe needs three months to process the files submitted by the Government and elect the judge and a few more months for the elected judge to take office. 

In this context, the appointment of the next judge will take place in June 2021. The Council of Europe has requested that the list of three candidates be submitted by May 10, 2021. 

The organizations also proposed to include the possibility of submitting documents by email and reduce the set of documents to be submitted by candidates. 

The application for medical certificates can be considered as an obstacle to participation in the competition. Another obstacle in the participation of candidates in the competition could be the requirement to request the presentation of the criminal record, which can be collected only in person. Obtaining a criminal record and a medical certificate for candidates living abroad can be an excessive burden. These documents do not add much information relevant to the competition. Eventually, these papers can be requested from pre-selected candidates after the interview. 

The organizations also mention that it would be relevant to include the possibility for civil society to present written opinions about candidates. 

Such possibilities have existed in most recent competitions and have often proved to be particularly valuable for the evaluation of candidates. We do not see a reason why this stage is not introduced for this contest, especially since it only takes two-three weeks.

The organizations also proposed Introducing a clear and transparent mechanism for evaluating candidates. The organizations propose to broadcast the interviews with the selected candidates and publish them on the internet. This will further strengthen confidence in the fairness of the evaluation of candidates. 

Additionally, the organizations proposed to provide a list of clear and relevant criteria on the basis of which candidates will be evaluated, and a predetermined score for each criterion. The score is weighted according to the importance of the criterion for the position of judge of the ECtHR.

At the same time, in addition to these changes, the representatives propose to the authorities for examination and consideration an alternative draft regulation, which incorporates the above recommendations and takes into account the best comparative practices of the ECtHR candidate selection process.

The mandate of the current judge at the ECtHR, Valeriu Grițco, expires on December 2, 2021. According to Resolution no. 1646 (2009), the Council of Europe needs three months to process the files submitted by the Government and elect the judge and a few more months for the elected judge to take office.