NGOs and the Judges of the ECHR

Here is the antipasto or abstract if you will of the Pdf of the same title by Grégor Puppinck, PhD, of the The European Centre for Law and Justice.

NGOs have an increasing influence on and within international institutions, particularly within the human rights protection system.

This report shows that at least 22 of the 100 permanent judges who have served on the European Court of Human Rights (ECHR) between 2009 and 2019 are former officials or collaborators of seven NGOs that are highly active before the Court. Twelve judges are linked to the Open Society Foundation (OSF) network, seven to the Helsinki committees, five to the International Commission of Jurists, three to Amnesty International, and one each to Human Rights Watch, Interights and the A.I.R.E. Centre. The Open Society network is distinguished by the number of judges linked to it and by the fact that it funds the other six organisations mentioned in this report.

Since 2009, there have been at least 185 cases in which at least one of these seven NGOs is officially involved in the proceedings. Of these, in 88 cases, judges sat in a case in which the NGO with which they were linked was involved. For example, in the case of Big Brother Watch v. the United Kingdom, still pending before the Grand Chamber of the ECHR, 10 of the 16 applicants are NGOs funded by the OSF, as are 6 of the NGOs acting as third parties. Of the 17 judges who have sat in the Grand Chamber, 6 are linked to the applicant and intervening NGOs.

Over the same period, there were only 12 cases in which a judge withdrew from a case, apparently because of a link with an NGO involved in the case.

This situation calls into question the independence of the Court and the impartiality of the judges and is contrary to the rules which the ECHR itself imposes on States in this area. It is all the more problematic as the Court’s power is exceptional.

It is necessary to remedy this situation. To this end, greater attention should be paid in particular to the choice of candidates for the posts of judges, avoiding the appointment of activists. This report also proposes solutions to ensure the transparency of interests and links between applicants, judges and NGOs, and formalise the procedures of withdrawal and recusal.

Aware of the value of the human rights protection system in Europe and the need to preserve it, the ECLJ hopes that this report will be received as a positive contribution to the proper functioning of the Court.

The paper starts off intruigingly on page 5. Be prepared for some juicy details further down and even one howler. The name Soros and his Open Society Foundation and Soros Foundation-Latvia pop up repeatedly. In this vein interested Tweeters may have realized that the German increasingly serves up articles critical of Eastern states, most notably Poland and Hungary, while at the same time Western European states are on the backburner. Anyway, here page 5:

A reading of the curricula vitae of the judges who sat for the last ten years (between 1 January 2009 and 1 October 2019), makes it possible to identify seven NGOs which are both active at the Court and have among their former collaborators at least one person who has sat as a permanent judge of the ECHR since 2009. Out of the 100 permanent judges who have served during this period, it appears that 22 had strong links, prior to their election as judges, with one or more of these seven organisations, either as administrators, beneficiaries of their funding or as significant and regular participants in their activities. In addition, considering also more indirect links, several other judges could be added to this list.

This study goes further, however, to observe the interactions between NGOs and judges, after the latter’s entry into office. It appeared here from the examination of the 185 cases in which these seven NGOs have visibly acted over the past ten years, that on numerous occasions judges have sat in cases brought or supported by the NGO with which they had collaborated. The links between judges and NGOs are therefore deeper and more complex than it usually appears. The purpose of this study, based on in-depth research (see appendices), is to highlight this significant reality and to question its causes, the difficulties it poses, and the means to remedy it.

It then delves into the Former professional links between NGOS and judges and serves up a Factual presentation of those links on page 6.

Seven NGOs have been identified as being active before the Court and including among their former collaborators at least one person who has served as a permanent judge of the ECHR since 2009. These are (in alphabetical order) A.I.R.E. Center (Advice on Individual Rights in Europe), Amnesty International, the International Commission of Jurists (ICJ), the Helsinki committees and foundations network, Human Rights Watch (HRW), Interights (International Center for the Judicial Protection of Human Rights), and the Open Society Foundation (OSF) and its various branches, in particular the Open Society Justice Initiative (OSJI). Collaborations between NGOs and future judges exist to varying degrees, from official responsibilities within NGOs to meaningful participation in their activities.

Page 8 lists the judges who have collaborated to varying degrees with the Open Society Foundation (OSF). However, …

This phenomenon is not limited to members of the Court. For example, Nils Muižnieks, Commissioner for Human Rights of the Council of Europe from 2012 to 2018, was also director of programs of the Open Society of Latvia until 2012. In 2009, he explained that the Open Society wishes to create a new man – homo sorosensus [in reference to Soros] – man of open society, as opposed to homo sovieticus. (16) Within the scope of his official activities, he condemned several initiatives by the Hungarian government, notably the so-called “anti-Soros” bill.

Here is foot note 16 and it is quite a treat:

Nils Muižnieks, Creating the “Open Society Man” (and Woman!), Open Society News, Fall 2009, p. 6: “Many of us (that is veteran staff, board members, and/or grantees of the various branches of the Open Society Institute) assumed that within two decades we could help create a new “open society man.” This “new man”—homo sorosensus—would replace homo sovieticus, whose remains would slowly decompose on the ash heap of history (located in a dark alley behind the gleaming main streets of the new, “normal” open societies we would build).” societies-stand-20-years-later#publications_download (visited on 01/02/2020).

How is this leaning possible? Well it has to do with shrewd money allocation by, you guessed it, none other than George Soros.

The election of NGO lawyers to the ECHR has multiple causes.
One of them results from the fact that in certain countries, lawyers who are both experienced in human rights matters and who have a certain independence from the government can mainly be identified within NGOs. This is compounded by the importance of the presence and influence of certain NGOs in “small” countries. Most of the judges who were salaried employees or officials of NGOs come from Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Hungary, Latvia and Romania. For example, in Albania, a poor and highly corrupted country, (19) two of the three candidates for the judge election in 2018 were leaders of the Open Society Foundation. One of them was elected. (20) The Open Society Foundation has invested more than $ 131 million in this country since 1992. (21) Likewise, the last two judges elected in respect of Latvia are collaborators of the Riga Law School, founded by the Soros Foundation of Latvia, which invested more than $ 90 million in this country between 1992 and 2014. (22) The two latest Bulgarian judges also come from NGOs supported by the OSF. (23) In such small countries, the OSF and its foundations have become inescapable for anyone involved in social and media matters. They are major employers and funders. The OSF currently spends more than 90 million euros per year in Europe, mainly in Eastern Europe and the Balkans. (24)

Do read the foot notes on page 9 and 10! On page 13-17 the ECLJ paper deals with the lack of transparency and Judges dealing with cases brought by, or with the support of, “their” NGONot to miss.

There is also a pretty large discrepancy in the amount of funding of NGOs compared to the ECHR (page 19).

As in any ecosystem, for it to be sustainable and virtuous, a balance must be established between the main body (the public bodies) and its complementary bodies (NGOs). The large NGOs mentioned in this report already largely dominate the human rights discourse in civil society. The risk is that this power will extend more directly to international bodies protecting human rights, and in particular to the ECHR. On this point, we can observe that the annual budget allocated by the OSF to its action in Europe is 90 million dollars, against 70 million euros for the ECHR.

NGOs, Private actors with no democratic legitimacy.

NGOs, just like intermediary bodies, fill the “democratic loophole” of supranational governance, but are not themselves democratic, even if they are generally called “civil society” organizations, as opposed to the authorities. NGOs have no other democratic legitimacy than that conferred on them by their grassroots and members. The values they defend can certainly give them political prestige and ideological legitimacy, but these cannot replace the specificity of popular support. In theory, the more representative an NGO, the more human and financial support it has. But the system is distorted when NGOs owe their existence and funding only to a very limited number of people or institutions. The power of these NGOs then depends less on their representativeness than on their funding and proximity with the bodies they set out to influence. Financial power is then enough to give the illusion of legitimacy. Such organizations, even very active and visible in society, in fact only represent the interests and ideas of their founders and funders, be them public or private. Thus, the organization Interights, which was very active at the ECHR, brutally ceased all activity following the loss of patrons, and lack of real support among the population. Similarly, the Soros foundations in Hungary preferred to move to Austria, after their foreign funding was subject to heavy taxation. Thus, the NGOs with the greatest democratic legitimacy are not necessarily the richest, but they owe their solidity to their rooting within the population.

There are Few withdrawals due to links between judges and NGOs but this one is a howler (page 17/18):

Concerning the vast majority of withdrawals; their causes are diverse. Judge Bîrsan had to withdraw in all cases concerning Romania until the end of his mandate after his wife, a magistrate, was investigated for corruption.

The paper further deals with The lack of guarantees on the independence and impartiality of judges and cites as a positive example the British precedent of Lord Hoffmann in the famous Pinochet case before it concludes thus:

It remains to see what the ECtHR should do with its past most problematic judgments. According to its own case law, those cases should be judged again, following the example of the House of Lords in the Pinochet case. This should be the case especially if a party requests the revision of such judgment, according to rule 80 of the Rules of the Court.

You are encouraged to read the whole Pdf including the foot notes which are omitted here.