Ideology v. Democracy: What future for the ECHR and human rights? Interview

Interview of Dr. Grégor Puppinck, Director of the ECLJ, published in "Institute for Justice" on 9 March 2020.

1) Grégor Puppinck, the European Centre for Law and Justice that you have been leading since 2009 published a Report on the role of NGOs in the European Court of Human Rights (ECHR). How did the idea of this report come about and what results did you achieve?

I have been working on cases pending at the European Court of Human Rights for almost 20 years. With the ECLJ, we have participated in about 40 cases before this Court. Over the years I have seen the increasingly ideological development of its case law on social issues. This has led me to write a book entitled "Les droits de l'homme dénaturé" (Le Cerf, 2018) in which I analysed the evolution of human rights since 1948. In connection with this evolution, I have observed an increasing number of appointments of NGO activists to the Court as judges.

Finally, I have been shocked on several occasions by the way the Court "got rid of" important cases, including the Lambert case in July 2019. All of this prompted me to undertake this more in-depth research on the ideological profile of the judges who are in this Court.

The choice of these European judges is a major political issue, yet it is largely ignored, unlike the nine justices of the United States Supreme Court who are known to the American people, including for their opinions.

The ECHR has become a "Totem"; it was important to break the myth and show the politics behind the smooth façade of the institution.

2) You describe the role of NGOs within the ECHR, but you focus mainly on NGOs from the Soros galaxy. These NGOs linked to George Soros have a very specific ideological goal: the creation of an"open society", which implies systematically to undermining and hindering the capacity of national governments to act. How can it be explained that these same governments seem indifferent or powerless in the face of this enterprise aimed at dispossessing them of their powers?

No, we are not focusing on NGOs belonging to the Soros galaxy. This focus is the result of our investigation, not its premise. To conduct this study, we wanted to identify NGOs that are both active in the Court and have judges among their former collaborators. As a result, 22 of the 100 judges who have served since 2009 are former employees or leaders of seven NGOs. Among these, the Open Society network is indeed distinguished by the number of judges linked to it (12) and by the fact that it funds the six other organisations identified in this report.

Such a strong presence of the Open Society and its affiliates is problematic in many ways, but even more serious is the fact that 18 of the 22 judges were found to have served on 88 cases brought or supported by the organization with which they were previously associated. These are low assessments that do not take into account all the close financial links between NGOs, nor all the cases in which NGOs act in a non-apparent manner.

As regards the powerlessness of governments, it should first be pointed out that several European governments have undertaken to limit the influence or interference of Mr Soros' Open Society. More generally, however, it must be understood that human rights institutions, as well as NGOs, were designed to fight against governments that are supposed to be liberticidal in principle, to exercise counter-power. But the system is now unbalanced: the watchdogs of democracy have appropriated it, and in so doing they are suffocating it.

3) The aim pursued by NGOs in the Soros galaxy is fundamentally anti-democratic, in that it seeks to replace national laws, drafted by elected representatives, with rules of law, drafted by judges and experts who are unaccountable to those on whom they impose rules. How can it be explained that Human Rights, which are supposed to be the foundation of modern democracy, have today become a weapon to destroy representative democracy?

As you know, there are several definitions of democracy. The “democratic society” promoted by the Council of Europe bodies is no longer based on the sovereignty of peoples, but on a set of values that should dominate the frivolity of peoples and the power of politicians. The European Court declares these values “underlying the European Convention on Human Rights” and has so far identified those of pluralism, tolerance, openness and equality. They are in addition to the values of individual dignity and freedom, which are “the very essence of the Convention”, even though they are not included in it. All these values are affirmed, as if they were self-evident. Conversely, the notions that were the sources of the political legitimacy of democratic regimes, such as the general will, the nation, the people and sovereignty, have fallen into disuse, in favour of the apolitical notions of population, opinion, sentiment or support.

Thus, the European Court holds that “democracy does not simply mean that the views of a majority must always prevail”.[1] It is true that the Court recognises that “popular sentiment may play an important role” in political choices, but it goes on to add that “there is an important difference between giving way to popular support in favour of extending the scope of the Convention guarantees and a situation where that support is relied on in order to narrow the scope of the substantive protection.”[2] In other words, the will of the people is acceptable only when it does not contradict its own. Such a conception has led the European Court to censure many legislative, and even constitutional, provisions, but also to validate the dissolution of the political party that won the parliamentary elections in Turkey on the grounds that the Islamism advocated by this party is incompatible with democracy. While it admits that “Democracy requires that the people should be given a role”, it reserves the last word as the guardian of liberal democratic values [3]. The Venice Commission says no different when it states that “Democracy relates to the involvement of the people in the decision-making process in a society” (2011 Report). According to this vision, the people, as minors, are only “involved” with the decisions that concern them.

4) You wrote in your report: "the link between judges and NGOs is no less problematic than that with governments, since it is no longer only a relationship of hierarchical obedience, but also of ideological adherence. This is likely to be felt much more widely and in a diffuse manner in all the cases involving these organizations. A government official can be expected to have more ideological neutrality and less activism than an NGO official.”

Does mentioning this fact about a court responsible for enforcing human rights mean that human rights are, in your opinion, an ideology? But in this case, the notion of Human Rights becomes fundamentally arbitrary?

The human rights instituted after the Second World War were an attempt to transcribe and guarantee in positive law essential norms of natural law; to do so, they were given the authority of international law.

The intention is excellent, but it poses several difficulties which I describe in my book “Les droits de l’homme dénaturé”. The first is structural: it stems from the fact that the system defends the individual against society as a matter of principle. It is impossible in this system to consider the existence of something good in itself that has its origin beyond the individual. Common goods, such as health, morals, security are considered to be limits to individual freedom. Human rights are therefore an insufficient and distorting translation of natural law.

A second, more profound difficulty is the mixing of genres between law and morality that human rights bring about. The content of human rights, and even their method of analysis, is mainly a matter of morality, i.e. moral considerations. On the other hand, the object of law is justice. There is a great deal of confusion here, because judges are asked to make judgments based on the desirable good, rather than the just in relation to the law. Thus, they may condemn a legal practice on the ground that it is undesirable. This, of course, gives the judge a very great deal of power, because it is the judge who chooses what is desirable, and therefore what is right, based on his or her anthropology.

5) The European Court of Human Rights considers that the Convention is “a living instrument” which must be interpreted in the light of “developments in society”. In other words, the judges of the ECHR do not consider themselves to be bound by the text they are supposed to apply. Aren’t we in the midst of what is called “the government of judges”?

The power of European judges is further enhanced by the succinctness of the European Convention, which has only about twenty substantive provisions, unlike national legislation, which is very precise and leaves little room for the expression of the judges’ moral preferences. Thus, depending on their mentality, judges may just as easily decide that the prohibition of euthanasia respects the right to life or on the contrary violates the right to privacy; or that surrogacy respects human dignity or on the contrary violates individual freedom. The European Convention can be made to say one thing and its opposite. Moreover, as you recall, the judges did indeed decide that the Convention is a “living instrument” to be interpreted in a dynamic and evolutionary way, that is to say, beyond what States have committed themselves to by ratifying the Convention. Therefore, the presence of a large number of judges coming from the same organization and therefore sharing the same ideology may have important consequences.

6) In your Report, you wrote: “One of the reasons why the situation described in this reportcouldbe established jolt-freemay be due to the fact that the ECHR has already largely adopted the value system of these NGOs, so that it is no longer possible to see conflicts of interest between organizations with broadly the same interests. It is only when the judge does not conform to the dominant ideology that his profile shocks.”

With such consideration, are not all attempts to reform the Court futile, since these reforms can only be implemented by the judges of the Court themselves?

It is clear that the ECHR is more a political or moral body rather than of a legal body: it makes morality out of the language of law. However, in what we observe, its ideological character is so pervasive that it has forgotten the law, namely the elementary rules of fair trial. It is a social grouping to the point of blindness.

The report is concerned about a certain ideological collusion between judges and NGOs, but it also reveals, in a very precise manner, serious shortcomings in the functioning of the Court. These shortcomings have been made possible by the fact that the Court does not apply the rules that it prescribes for national courts regarding the right to a fair trial. Thus, a judge who might be in a potential conflict of interest is not compelled to inform the President of the Court and decides alone whether he or she should be deported. Nor is there any procedure for removal from office, unlike the Court in Luxembourg. Judges are not obliged to publish a declaration of interests. Moreover, the Court does not inform the parties in advance of the composition of the bench, which makes it impossible in practice to challenge them. There are many other problems - and some remedies - that we indicate in the Report.

The ECLJ has opened for signature an “Appeal of Jurists” in which we ask the ECHR to take the necessary measures to restore the conditions for its independence and the impartiality of its judges. It has already been signed by prestigious jurists, even a former judge of the European Court. You can request a copy and sign it by emailing us to secretariat@eclj.org.

7) Let’s go further. Can we not make the same observation for the institutions in charge of Human Rights at the national level, but also for the universities where jurists are trained who will then become lawyers specialized in Human Rights... or magistrates in international courts? Haven’t all these institutions adopted widely the NGO value system you are talking about?

The “value system” of these NGOs should not be confused with justice. That is the difficulty. Few people still manage to distinguish law from morality, and even more so human rights from the vulgar individualistic and libertarian individualism that is currently in vogue.

The only way to extricate human rights from this misconception is to understand them in the light of natural law, and thus in the light of realistic anthropology.

8) What your report shows is that it is much easier for lobbies to influence specific bodies and courts of justice than national parliaments, which is why NGOs in the Soros galaxy have chosen to focus their action on the ECHR. Don’t you think that the phenomenon you highlight is also at work within the European institutions, in particular the European Commission and the Court of Justice of the European Union?

This phenomenon is at work in all the so-called “governance” institutions, and even more so when they are supranational. These institutions have considerable power and are by nature elitist. A “court” phenomenon, in the old sense of the word, is therefore developing. NGOs are welcome in that they are supposed to be independent of governments, offer expertise and fill the democratic vacuum of supranational bodies. This is very naive. NGOs have become political instruments, and are primarily seeking influence. Some NGOs, such as the Open Society, have invested heavily in this system and are now indispensable.

Having learned to distrust governments and then economic powers, we must discover and learn to limit the power of the private political powers that NGOs are.

9) Faced with the excesses of the Strasbourg Court, some have suggested that France should withdraw from the ECHR. However, since the 1970s, the CJEU has considered that it is its responsibility to ensure respect for “fundamental rights” within the European Union and insofar as these “fundamental rights” are largely drawn from the ECHR, is such a strategy not doomed to failure?

I believe that nothing is written, let alone the future of European political bodies. But this does not mean that I am a revolutionary. Having said that, I note that the judges of the EU Court of Justice are all high-level professional magistrates and that the problems observed in Strasbourg are inconceivable in Luxembourg.

10) The United Kingdom has just left the European Union. To your knowledge, is it also considering leaving the ECHR?

Theresa May has indeed considered it, and the current government refuses to be prevented from doing that in the framework of the Brexit negotiations. The United Kingdom has a fine legal tradition of defending fundamental rights and freedoms. Similarly, the conflicts of interest observed in Strasbourg are inconceivable in the House of Lords, as Lord Hoffmann's precedent in the famous Pinochet case of 1999 shows. The case had had to be heard again after the links between Lord Hoffmann and Amnesty International, a third party intervening in the case, had been revealed.

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[1] CEDH, Chassagnou et autres c. France [GC], 1999, § 112.

[2] CEDH, Bayev et autres c. Russie, 2017, § 70.

[3] CEDH, Refah Partisi et autres c. Turquie, n° 41340/98, 31 juil. 2001, § 43.