Ministers’ Deputies / Bureau
CM/Bur/Del(2010)25 final 17 November 2010
1098 Meeting, 17 November 2010
1 General questions
1.5 Elections conducted by the Committee of Ministers
Memorandum prepared by the Secretariat
1. The Committee of Ministers appoints members of certain bodies1 as well as officials to certain functions2. In order to make such appointments, the Deputies follow various procedures setting out the conditions for the submission and receipt of candidatures (I – Candidatures) and for the election (II – Elections by the Ministers’ Deputies).
2. This information document provides a review of the various procedures and highlights potential or existing difficulties in their implementation. It also contains a number of proposals aiming at:
- standardising the calls for candidatures;
- specifying clearly date of receipt of candidatures;
- defining rules for replacing candidatures;
- harmonising voting arrangements and terminology used.
3. Candidatures are submitted to the Committee of Ministers following a call for candidatures. There is no standard document for this purpose. It either appears as a collection of information to be found in CM documents giving rise to relevant decisions of the Deputies3, or it is contained in documents sent out directly by the secretariat of the body concerned4. These documents contain all the information that member states need in order to select and present their candidates (such as deadline, admissibility criteria, receipt arrangements, etc.).
4. However, the language used in these different documents is not always consistent and could give rise to some confusion. For example, with regard to the deadline for receipt of candidatures, various forms of wording are used, such as “Candidatures must be submitted to the Secretariat before X/X/X”, “Candidatures must reach the Secretariat no later than X/X/X”» and “Candidatures must reach the Secretariat by X/X/X at the latest”.
5. Observation: Because of the different wording there could be confusion and misunderstandings. To avoid this risk, it would be helpful to harmonise the wording used in calls for candidatures.
Proposal: The Deputies are invited to adopt the draft decision below:
“The responsible organs and departments are invited to ensure that calls for candidatures for posts or functions which may give rise to elections in the Committee of Ministers contain (at least) the following information:
- Indication of the post/function,
- Required qualifications,
- Term of office,
- Allowances (if applicable),
- Identification of the department/authority responsible for receiving candidatures,
- Deadline for receipt of candidatures (if applicable) using the following form of words: “Candidatures must reach … no later than X/X/X”,
- A reminder of the Council of Europe’s principles on ensuring balanced representation of women and men (see, in particular, Recommendation Rec(81)6).”
6. There are three separate issues relating to the receipt of candidatures: meeting the deadline, the possibility of a change of candidate and examination of the candidatures. No specific rules exist on these issues.
(i) In order for a candidature to be deemed admissible, it must reach the Council of Europe before expiry of the stipulated deadline. It is therefore the date of receipt in the Council of Europe that counts. At present, there are a number of ways in which candidatures are submitted:
7. The candidature may have been sent by post. This does not raise any particular problem. The authoritative date of receipt will ordinarily be the date stamped by the Directorate of Logisitcs – Mail Department – when the envelope containing the candidature arrives at the Council of Europe. This date will appear on the envelope itself.
8. If the candidature has been sent by the shuttle service or handed to the department concerned, the authoritative date of receipt will be the date stamped on the letter itself by the department in question. In the past, however, submission of candidatures in this way has led to some confusion because of the time that could elapse between the time the document is handed in and the moment it is processed by the relevant department.
9. More and more frequently, the physical submission of a candidature is preceded or indeed replaced by submission by e-mail or fax. This is a rather random means of submission since, as things currently stand, the sender does not systematically receive an acknowledgement of receipt.
10. Observation: The fact that there are no rules for clearly specifying the date of receipt of candidatures regardless of how they are submitted opens the door to possible challenges. Such rules should be drawn up.
(ii) A state may replace a candidate by another provided that the replacement request, from the relevant authorities, is made before the deadline. Once the deadline has passed, such changes are inadmissible, except in certain exceptional circumstances.
11. Observation: As there are no precise rules, these “exceptional circumstances” have been deduced – in full or in part – from a number of criteria which need to be defined in the interests of transparency.
Proposal: The Deputies are invited to adopt the draft decision below:
“The admissibility deadline for candidatures for posts or functions open to all member states or to several of them to be filled by means of elections in the Committee of Ministers must be strictly complied with.
The deadline is deemed to have been met if the date on which the candidature was received at the Council of Europe, as attested by the stamp of the responsible department, is on, or before, the date of the stipulated deadline.
The candidature may also reach the Council of Europe, by electronic mail to the Secretariat of the Committee of Ministers (CM@coe.int). In this case, the date of the electronic mail will constitute a sufficient indication of compliance with the deadline. The Secretariat will provide the sender with an electronic receipt for the mail concerned. However, the original of the letter of candidature will have to reach the Council of Europe as soon as possible, and, at all events, prior to the holding of the election.
Any member state is at liberty to replace a candidature already submitted with another, prior to expiry of the deadline.
Nevertheless, the Committee of Ministers may decide, by a majority as provided by Article 20 (b) of the Statute, to prolong the deadline for receipt of candidatures in the case where a member state wishes to replace a candidature which has reached the Council of Europe by the stipulated deadline with another candidature after expiry of the deadline, provided that the state in question can put forward objective reasons for forgoing the initial candidature (death, illness, change to another function incompatible with the duties of the function concerned … ). The prolongation of the deadline would apply to all member states invited to submit candidatures.”
(iii) When the Secretariat receives the candidatures it does not take a decision on their admissibility. This is a matter exclusively for the Committee of Ministers, assisted by its different rapporteur groups which regularly hold exchanges of views on this matter. However, in the Deputies’ Notes on the Agenda or the rapporteur groups’ annotated agendas, the Secretariat will draw delegations’ attention to any aspects which prima facie fail to comply with the call for candidatures.
II. ELECTIONS BY THE MINISTERS’ DEPUTIES
12. With the exception of Convention ETS 126 (Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment), the texts setting up bodies or creating posts do not provide any details of voting arrangements or the majority required in the Deputies for the elections. As a general rule, these arrangements are decided by the Committee of Ministers itself and vary according to the bodies/functions in question (see appendix).
13. In addition, reference is frequently made to the concept of “absolute majority” which appears in neither the Statute of the Council of Europe nor in the rules of procedure for the Ministers’ Deputies’ meetings, and would appear to be interpreted in the same way as the concept of a “simple majority … of the representatives entitled to sit on the Committee” (Statute, Article 20 b.). Use of this majority meets a logical and practical requirement, where a limited number of posts is to be filled from a large number of candidates. In practice, if the residual voting rule for which Article 20.d of the Statute provides (“a two-thirds majority of the representatives casting a vote and […] a majority of the representatives entitled to sit on the Committee”) had to be applied in every case for which no provision is made for any other majority, there would be a serious risk that none of the candidates under consideration would receive such a majority.
14. Observation: In several cases, voting arrangements seem to be based simply on practice. In order to be more consistent in the electoral process, it would be helpful to identify the most satisfactory voting arrangements, and the terminology used, and to ensure that these are followed regularly.
Proposal: The Deputies are invited to adopt the draft decision below:
“As a general rule and without prejudice to Article 5 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the following voting arrangements shall be respected when conducting elections in the Committee of Ministers:
- Voting shall be by secret ballot,
- The candidate or candidates obtaining the simple majority of votes within the meaning of Article 10.4 of the Rules of Procedure for the Meetings of the Ministers’ Deputies (ie, half of the number of the Deputies entitled to vote, plus one) and the largest number of votes shall be declared elected,
- If one seat, or more, remain(s) vacant after the first vote, there will be a second round of voting. The candidate(s) having obtained the highest number of votes will be declared elected.”
* * *
Information concerning present voting arrangements for the various elections held within the Committee of Ministers 5
In order to proceed with an election, the Deputies refer to relevant provisions foreseen in the founding text of the body in question. However, such provisions do not provide precise guidance and must be complemented with more detailed rules elaborated by the Deputies themselves. Consequently, in the examples referred to in this document, a distinction has been made in each case between:
a. Relevant provisions foreseen in the body’s founding text;
b. Complementary rules used by the Deputies (to proceed for the most recent election).
1. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT):
a. Relevant provisions: “The members of the Committee shall be elected by the Committee of Ministers of the Council of Europe by an absolute majority of votes” (See ETS No. 126, Article 5);
b. Complementary rules6: “To be elected, it is necessary to obtain an absolute majority of the votes of the Deputies having the right to vote. All members of the Committee of Ministers are entitled to take part in the vote, which will be by secret ballot. Should none of the candidates on the list obtain the required majority, it would be necessary to hold a second round of voting. If a second round is held, the candidate placed in third position may be omitted, if the Committee so decides.” (See CM/Notes/1081/4.3).
2. Advisory Committee on the Framework Convention for the Protection of National Minorities:
a. Relevant provisions: “The Committee of Ministers shall elect one of these experts to be entered on the List in respect of [the] Party.” (See Resolution (97) 10, paragraph 9);
b. Complementary rules: “To be elected, it is necessary to obtain an absolute majority of the votes of the Deputies having the right to vote. All members of the Committee of Ministers are entitled to take part in the vote, which will be by secret ballot. Should none of the candidates on the list obtain the required majority, it would be necessary to hold a second round of voting.” (See CM/Notes/1088/4.3).
3. Committee of Experts of the European Charter for Regional or Minority Languages:
a. Relevant provisions: “The committee of experts shall be composed of one member per Party, appointed by the Committee of Ministers from a list of individuals of the highest integrity and recognised competence in the matters dealt with in the Charter, who shall be nominated by the Party concerned.” (See ETS No. 148, Article 17, paragraph 1);
b. Complementary rules: “To be elected, it is necessary to obtain an absolute majority of the votes. All members of the Committee of Ministers are entitled to take part in the vote. Should none of the candidates on the list obtain the required majority, it would be necessary to hold a second round of voting.” (See CM/Notes/1090/10.3).
4. European Committee of Social Rights (ECSR):
a. Relevant provisions: “The Committee of Experts shall consist of ... members appointed by the Committee of Ministers from a list of independent experts of the highest integrity and of recognised competence in international social questions, nominated by the Contracting Parties.” (See ETS No. 035, Article 25. This article was revised by the Turin Protocol to provide for election by PACE, but the provision is not applied.);
b. Complementary rules: “[T]he candidate or candidates having obtained an absolute majority of the votes cast and the highest number of votes will be declared elected; if one or more seats remain vacant after the first ballot, there will be a second round of voting and the candidate or candidates having obtained the highest number of votes will be declared elected.” (See CM/Notes/1084/4.1).
5. Administrative Tribunal:
a. Relevant provisions: “The remaining judges shall be appointed by the Committee of Ministers among jurists or other persons of high standing, with great experience in the field of administration.” (See Staff Regulations – Appendix XI, Article 1, paragraph 2);
b. Complementary rules: “The Deputies agreed that election should be by secret ballot, each delegation designating three regular members; the three candidates who received the largest number of votes would be declared elected, provided they obtained a simple majority. In the event of a tie, a separate poll would be held involving only the candidates in question.” (Conclusions of the 143rd meeting of the Deputies – 28 June – 1 July 1965, item XIX). In 2003 this procedure led to deadlock when, after four ballots, only one candidate had obtained a simple majority. The Bureau therefore recommended that the second judge be appointed by a relative majority in the fifth ballot (see document CM/Bur/Del(2003)7).
6. Budget Committee:
a. Relevant provisions: “eleven experts with recognised competence in the administrative and financial fields, appointed by the Committee of Ministers for a renewable term of three years.” (See Financial Regulations, Article 29);
b. Complementary rules: “As regards voting, paragraph 3 of the above-mentioned procedure for appointing the Budget Committee’s members lays down as follows:
- If the number of candidates proposed by a group of states as defined by Article 29 of the Financial Regulations is equal to the number of seats allotted to that group, their appointment as members may be made without a vote;
- In the case of the number of candidates exceeding the number of seats to be filled for a given group of states, the Deputies start the selection (or elimination) procedure by holding an indicative vote by secret ballot. Subsequent procedure is then decided in the light of the outcome of the indicative vote, or subsequent indicative votes by secret ballot if they appear to be necessary;
- The ballot papers used for the secret indicative votes referred to in the preceding paragraph shall list the candidates within each group of states in the rank order of contribution scales in which the nominating states are placed, and without indication of titles. The Chairman will indicate during the meeting at which moment the Secretariat should distribute the ballot papers;” (see procedure for the appointment of members of the Budget Committee, contained in document CM(2010)61).
7. External Auditor:
a. Relevant provisions: “The External Auditor shall be head of the supreme audit institution of a member state and shall be appointed by the Committee of Ministers for a period of five years, not renewable.” (See Financial Regulations, Article 80) “[I]n the case of two or more candidates being proposed to fill a single vacancy, the Deputies start the selection (or elimination) procedure by holding an indicative vote by secret ballot. Subsequent procedure is then decided in the light of the outcome of the indicative vote, or subsequent indicative votes by secret ballot if they appear to be necessary” (See Procedure for the Appointment of the External Auditor, decision CM/Del/Dec(2009)1063/11.2/Appendix18, paragraph 4);
b. Complementary rules: Not applicable.
8. Youth Card Board of Co-ordination:
a. Relevant provisions: “[The Board] shall be composed of 17 members, that is: - 8 representatives of Partial Agreement member States in which there are national Youth Card bodies, who shall be appointed by the Committee of Ministers; ...” (See Appendix I to Resolution ResAP(2003)1, paragraph 5);
b. Complementary rules: For the first time since the creation of the Partial Agreement, there are more candidatures than places to fill on the Board of Co-ordination. It should be noted that Resolution ResAP(2003)1 does not provide any specific procedure for the designation of the eight Board of Co-ordination members. The Chairman, after consultation of the Bureau, would therefore recommend that the Ministers’ Deputies, in their composition limited to the seventeen member States Parties to the Partial Agreement proceed to an election and choose, among the nine candidatures presented, the eight candidates with the largest number of votes” (See CM/Notes/1076/8.1).
9. Management Board of the Pension Reserve Fund:
a. Relevant provisions: “The Management Board shall be composed of the following members: a) four specialists with expertise in the management of investment funds nominated by the Committee of Ministers on the proposal of member states; b) one person nominated by the Committee of Ministers on the proposal of the Secretary General; and c) one person nominated by the Committee of Ministers on the proposal of the Staff Committee” (See Resolution Res(2006)1 on the Statute of the Pension Reserve Fund of the Council of Europe, Article 5);
b. Complementary rules: To date, no election has been necessary as the number of candidates has always been equal to the number of seats to be filled.
10. Committee of Experts on Buildings (CAHB):
a. Relevant provisions: “The Committee of Ministers shall appoint eleven independent experts, including one expert from the host country, on proposals from member States. Their term of office shall be three years, renewable” (See decision CM/Del/Dec(2001)778/11.5/Appendix4, paragraph 5.a);
b. Complementary rules: “The votes will then be counted by a member of a delegation and a member of the Secretariat of the Committee of Ministers and the Chairman will propose that the Committee declare elected the nine candidates having received the largest number of votes. In the event that two or more candidates receive the same number of votes, and this tie makes it impossible to chose between the candidates placed ninth and tenth in the order of the number of votes cast, the Chairman may instruct the Secretariat to conduct a further ballot, involving only the candidates concerned, in which case delegations may cast only one vote” (See CM(2001)151 rev2).
11. Audit Committee
a. Relevant provisions: “The Audit Committee shall be composed of three members who shall be audit professionals of high standing in the international audit community, and between them represent qualified experience from internal and external audit functions primarily in the public sector, and as far as possible, in the private sector. They shall be fully independent of the Council of Europe and national governments of the Council of Europe member states. The Committee of Ministers shall appoint the three members of the Audit Committee upon proposal of member states; the Secretary General may propose one candidate. The members of the Committee shall elect the Chairperson. Other parties may be requested to attend the meetings of the Committee for specific agenda items but they shall not be members of the Committee.” (See CM/Res(2008)2 – Appendix – Article 3);
b. Complementary rules: “4. […] It is proposed to follow a similar procedure as for that for the appointment of the External Auditor, i.e. that the Deputies start the selection procedure by holding an indicative vote by secret ballot. Subsequent procedure is then decided in the light of the outcome of the indicative vote, or subsequent indicative votes by secret ballot if they appear to be necessary. 5. In principle those candidatures which have the highest number of votes cast plus the simple majority of those entitled to vote (i.e. 24 votes) will be appointed as members to the Audit Committee. Should the outcome of the first ballot be inconclusive in that less than three candidates obtain such a majority, the Deputies might consider holding a second ballot in which, in the absence of candidates obtaining a simple majority, those candidates which obtain the highest number of votes would be appointed.” (See CM/Notes/1023/11.1)
12. Appointment of an independent person to sit on the Management and Executive Boards of the European Union Agency for Fundamental Rights:
a. Relevant provisions: “The Committee of Ministers of the Council of Europe shall appoint an independent person to sit on the Management and Executive Boards of the Agency, together with an alternate member.” (See Agreement between the European Community and the Council of Europe on co-operation between the European Union Agency for Fundamental Rights and the Council of Europe dated 18 June 2008, Article 17);
b. Complementary rules: – A ballot paper presenting the names and proposing states of all the candidates will be presented, the names appearing in alphabetical order:
- the Deputies will vote first for the appointment of an independent person. The alternate will be elected through a separate vote which will take place immediately after the completion of the election of the appointee;
- at each round of voting each delegation will be invited to vote only for one of the candidates appearing on the ballot paper. Ballot papers with no candidate indicated or with more than one candidate indicated will be considered invalid;
- in order to be elected a candidate must obtain an absolute majority of those entitled to vote, i.e. at least 24 votes;
- the Chair will announce the results at the close of each round of voting;
- after each inconclusive round of voting, the Deputies will proceed to a another round of voting. In that event, the Chair may invite the delegation of the member state whose candidate has obtained the lowest number of votes to consider withdrawing its candidate; …” (See Procedure for the appointment of an independent person and his/her alternate to sit on the organs of the European Union Agency for Fundamental Rights, CM/Del/Dec(2007)1001/1.7/Appendix 2).
1 The functions concerned are: the External Auditor and the Independent Person sitting on the Management and Executive Boards of the the European Union Agency for Fundamental Rights.
2 The bodies concerned are: the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT); the Advisory Committee on the Framework Convention for the Protection of National Minorities; the Committee of Experts of the European Charter for Regional or Minority Languages; the European Committee of Social Rights (ECSR); the Administrative Tribunal; the Budget Committee, the Youth Card Board of Co-ordination; the Management Board of the Pension Reserve Fund; the Committee of Experts on Buildings (CAHB) and the Audit Committee.
3 Such is the case, for instance, with respect to the European Committee of Social Rights.
4 Such is the case, for instance, with respect to the Advisory Committee on the Framework Convention for the Protection of National Minorities.
5 This section includes a review of voting arrangements with respect to all bodies whose members are elected by the Committee of Ministers. It does not refer to the European Commission against Racism and Intolerance (ECRI) whose members are appointed by governments. Article 3 of Resolution Res(2002)8 states that “1. The members of ECRI shall be appointed by their governments […]. 2. Each government shall notify the appointment of the member of ECRI in respect of its country to the Secretary General of the Council of Europe, who shall inform the Committee of Ministers thereof. 3. In the case where the Committee of Ministers considers that the appointment of one or more members of ECRI would not be in conformity with the provisions of paragraphs 2 and 3 of Article 2, it may ask the member state(s) concerned to proceed to another appointment”.
6 Modelled on the procedure for the election of members of the European Commission of Human Rights. Has been in place since the inception of the CPT.