To the attention of the President of the Parliamentary Assembly of the Council of Europe, Mr Tiny Kox.
We have the honour, by this letter, to address to you a "Petition to end conflicts of interest at the ECHR", in accordance with Rule 71 of the Assembly's Rules of Procedure.
The report of the European Centre for Law and Justice (ECLJ) on "NGOs and the Judges of the ECHR" (February 2020) revealed serious dysfunctions within the European Court of Human Rights. Over the 10 years analysed, 22 of the 100 permanent judges at the Court have come from or worked closely with seven NGOs active at the Court. Among these 7 NGOs, the network of the Open Society stands out for the number of judges linked to it (12) and for the fact that it funds the six other 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, 18 of these judges sat in a case in which the NGO with which they were linked was involved. 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.
Since 2019, other cases with conflicts of interest have been identified.
The report also revealed a frequent lack of transparency in the work of NGOs before the Court, with some acting in an unofficial capacity. This can undermine the fairness and impartiality of the proceedings, especially when a member of the Registry or the Court in charge of the case is coming from the NGO introducing the case.
This situation is critical, as it calls into question the independence of the Court and the impartiality of its judges; it 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.
This situation is serious, as it calls into question the independence of the Court and the impartiality of its judges, and is contrary to the rules which the Court itself imposes on states in this respect.
Considering the central role of PACE in the evaluation and election of ECHR judges, it is within the competence of PACE to take up this matter.
Following this report, on 8 April 2021, the Committee of Ministers replied to three written questions from members of your Assembly (Doc. 15258). It neither contradicted nor minimised the facts revealed in the ECLJ report. The reply then consisted of a reminder of the need to "continue to guarantee the highest standard of qualifications, independence and impartiality of the Court’s judges", and a statement of the measures taken to that end. The ambassadors also indicated their intention to reassess "by the end of 2024, in light of further experience, the effectiveness of the current system for the selection and election of the Court’s judges."
On 26 July 2021, the Committee of Ministers replied to two further written questions from members of your Assembly (Doc. 15345). It then revealed that the Court was reviewing its Rules of Court, "including Rule 28" which deals specifically with the issue of conflicts of interest.
On 2 September 2021, the Court published a new version of its “Resolution on Judicial Ethics”, adopted on 21 June 2021. The new text reinforces the obligations of integrity, independence, and impartiality of judges. Echoing the ECLJ report, the resolution now obliges judges to be independent of any institution, including any "body" and "any private entity". The text adds that judges “free from undue influence of any kind, whether external or internal, direct or indirect. They shall refrain from any activity, expression and association, refuse to follow any instruction, and avoid any situation that may be considered to interfere with their judicial function and to affect adversely public confidence in their independence.” The previous text was much more concise.
Regarding impartiality, the new text added an explicit prohibition on being "involved in dealing with a case in which they have a personal interest", thus reinforcing the prevention of conflicts of interest. Judges must also refrain from "any activity, expression and association that may be considered to affect adversely public confidence in their impartiality."
These responses to the report are positive, but not sufficient. Several measures should be recommended, in order to, including :
- require judges to publish declarations of interest;
- require candidates for the position of judge to disclose any family relationship with a member of the government or their national parliament:
- avoid the nomination of candidates from militant organisations active at the ECHR;
- establish a formal procedure of recusal, in accordance with the requirements of the ECHR towards national courts;
- inform the parties in advance of the composition of the panel, out of respect for judicial transparency, and in order to allow the parties to request the recusal of a judge;
- impose an obligation, rather than just an option, on judges to inform the President in case of doubt as to their objective independence or impartiality;
- establish a form for the application for third-party intervention showing any links with the main parties;
- ensure PACE control over the selection of ad hoc judges;
- increase the transparency of the functioning of the Advisory Panel of Experts on Candidates for Election as Judge to the European Court of Human Rights ;
- publish the list of members of the registry of the ECHR, as is done by the Inter-American Court of Human Rights and the Court of Justice of the European Union.
We ask you, Mr President, in accordance with Rule 71 of the Rules of Procedure of the Assembly, to put this matter on the Assembly's agenda so that an investigation can be carried out and solutions to these malfunctions recommended to the Committee of Ministers.
Please believe, Mr President, that we hope that the PACE will take up this important issue, which falls within its competence, for the sake of the European human rights protection system,
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