To the attention of the President of the Parliamentary Assembly of the Council of Europe, Mr Rik Daems.
The report of the European Centre for Law and Justice (ECLJ) on "NGOs and the Judges of the ECHR" reveals serious dysfunctions within the European Court of Human Rights. Over the last 10 years, 22 of the 100 permanent judges at the Court have come from or worked closely with seven NGOs active at the Court. 18 of these judges have also sat in cases involving the NGO to which they were linked. 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.
This situation is serious, 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 because the Court's power is exceptional.
It is therefore necessary to remedy it.
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.
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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.
By Grégor Puppinck and Delphine Loiseau. The authors thank all those who supported and advised them in the preparation of this report, in particular jurists, magistrates, and former members of the ECHR.