The ad hoc judge: A rehabilitation
| Author | Bart van der Sloot |
| DOI | http://doi.org/10.1177/1023263X221135473 |
| Published date | 01 October 2022 |
| Date | 01 October 2022 |
| Subject Matter | Articles |
The ad hoc judge:
A rehabilitation
Bart van der Sloot *
Abstract
The European Court of Human Rights (ECtHR) is composed of one judge per country that has ratified
the European Convention on Human Rights (ECHR). When a case is brought against a country, that
country has the privilege to have ‘its’judgetakeseatex officio. When the elected judge is unable to sit ex
officio, the country may propose an ad hoc judge. Ad hoc judges do not need to pass the normal test of
scrutiny as to their competence and impartiality, allowing governments to propose pro-government
candidates in politically sensitive cases. Consequently, academic literature, legal practice and even judges
of the Court have voiced concerns over the neutrality and quality of ad hoc judges. Changes have been
made to the Convention mechanism and further changes are called for to ensure the neutrality of ad
hoc judges. By doing statistical analysis, this article suggests that the actual voting behaviour of ad hoc
judges may not be so problematic as sometimes suggested. This may be relevant for a decision to intro-
duce further changes to the Convention mechanism and the extent of those potential revisions.
Keywords
Judicial independence, bias, ad hoc judge, ECHR, rehabilitation
1. Introduction
1
Every country having ratified the European Convention on Human Rights is allowed to have its
‘own’national judge sit on the European Court of Human Rights.
2
Each Member State can list
three candidates for the seat, from which the Parliamentary Assembly of the Council of
*
Tilburg Institute for Law, Technology and Society, Tilburg University, Tilburg, Netherlands
Corresponding author:
Bart van der Sloot, Tilburg University, Tilburg, Netherlands.
Email: b.vdrsloot@uvt.nl
1. This article was written and finalised before Russia withdrew from the Council of Europe.
2. ‘Composition of the Court’, ECHR, www.echr.coe.int/Pages/home.aspx?p=court/judges&c=#n14525115547902714491878_
pointer.
Article
Maastricht Journal of European and
Comparative Law
2022, Vol. 29(5) 572–595
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X221135473
maastrichtjournal.sagepub.com
Europe will chose one.
3
The Convention underlines that judges should be of high moral charac-
ter
4
and ever since their initial formulation in 1959, the Rules of the Court stress that: ‘A judge
may not exercise his functions while he is a member of a Government or while he holds a post or
exercises a profession which is likely to affect confidence in his independence. In case of need the
Court shall decide.’
5
When a case is brought against a country, the elected judge proposed by that
country, also called the national judge, has the right to sit ex officio in the Chamber deciding on
the matter. The other sitting judges were initially selected by lot and are currently appointed by
the President of the Section of the Chamber deciding on the case.
Having a national judge sit in the Chamber ensures, inter alia, that knowledge about the national lan-
guage, particularities of the case and national legislation are available to the Court. Consequently, when
an elected national judge needs to be excused due to either death, sickness, personal circumstances, a
conflict of interest or another reason,
6
the country in question has the right to have an ad hoc national
judge take seat.
7
While elected judges are carefully scrutinizedbyboththeParliamentaryAssemblyof
the Council of Europe and the Court itself before being admitted, such mechanisms have been absent
until recently when it comes to ad hoc judges and are still less stringent.
8
Consequently, ad hoc judges
are generally believed to have a pro-government voting record and their neutrality, objectivity and
quality have been questioned throughout the history of the Convention.
This article will argue that although the Convention mechanism indeed allowed countries to appoint
ad hoc judges as political instrument, albeit more so in the past than now, statistical data does not support
the dark picture generally painted of the functioning of ad hoc judges, although there are obviously points
of concern. Rather, and perhaps counterintuitively to many, ad hoc judges seem to function in a relatively
unbiased and neutral manner. While they do vote in favour of ‘their’government more often than non-
national judges do, such bias often only concerns one or two points of a case, with ad hoc judges voting in
favour of finding a violation of the Convention with respect to their country on one or more different
aspects of the case as well. In addition, in only a very small number of cases do they have the
‘swing’vote, tilting the balance toward finding no violation when the other judges are par.
Section 2 of this article will illustrate why the ad hoc judge has received a fair amount of criti-
cism and on which points their impartiality, objectivity and neutrality is questioned. Section 3 will
describe which changes have been made to the Convention to remedy these points of concern, as
well as the calls for further changes and even more stringent rules on the appointment of ad hoc
judges. Section 4 will introduce the methodology of a statistical analysis performed for this study
with respect to all cases in which an ad hoc judge sat on the ECtHR and describe the basic
numbers and facts. Subsequently, section 5 will give an interpretation of the data and analyse what
the results mean, showing that many of the critical points raised in academic literature, in legal prac-
tice and even by judges of the ECtHR are not always supported by the data. Finally, section 6 will
5. Rules of Court of the ECHR, rule 4. www.echr.coe.int/Documents/Library_1959_RoC_CDH(59)8_ENG.PDF.
6. ‘Another situation which could arise in this connection is that of a judge who does not wish to sit in a case, although
nothing prevents him or her from doing so. There would seem to be no reason preventing the Court or its President
from forcing him or her to participate; whether it would be wise to do so is another question.’L. Caflisch,
‘Independence and Impartiality of Judges: The European Court of Human Rights’,2Law and Practice of
International Courts and Tribunals (2003), p. 169.
7. See also: Article 43 of the original ECHR, www.echr.coe.int/Documents/Collection_Convention_1950_ENG.pdf.
Importantly, countries are allowed to propose a non-national candidate, but in practice seldom do so.
8. See also: Article 23 original Rules of the Court.
van der Sloot 573
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