Published originaly by the Blog of the European Journal of International Law (Oxford), EJIL:Talk!
What are the relationships between the judges of the European Court of Human Rights (ECtHR) and leading non-governmental organisations, and what should the Court be doing about them, particularly in cases in which doubts as to the judges’ impartiality might arise? This is the topic of this post, which is worthy of interest and needs to be addressed, and of a recent research report by the ECLJ on “NGOs and the Judges of the ECHR, 2009 –2019”.
The relationships between some judges and NGOs are not limited to the formal means of action of NGOs with the Court but are also much deeper, since the Court is composed, in a significant proportion, of former NGO employees or associates. A reading of the curricula vitae of the judges (published on the website of the Parliamentary Assembly of the Council of Europe and of the Court) who were in office over the last ten years, makes it possible to identify seven NGOs that are both active at the Court and have among their former associates at least one person who has sat as a permanent judge of the ECtHR. Out of the 100 permanent judges who have served during this period, it appears that 22 have been administrators, employees or associates with one or more of these seven organisations.
The Open Society Foundations (OSF) stands out by the number of judges who have held such functions or roles within it (12) and by the fact that it funds the other six organizations mentioned in this report (the A.I.R.E. Centre, Amnesty International, the Helsinki committees, Human Rights Watch, the International Commission of Jurists, and Interights). For example, among the former associates of the OSF, six judges were members of the board of national Open Society Foundations or of the Open Society Justice Initiative in New York.
Such involvement of lawyers in NGOs is, of course, perfectly legitimate and useful. This situation results, inter alia, 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 found within NGOs.
Potential impartiality issues
An issue arises when a judge is confronted with a case in which there is involvement of “his” former NGO, as applicant, representative or third party. It appeared from the examination of the 185 cases in which these seven NGOs have visibly acted before the ECtHR over the past ten years that in 88 occasions, judges have sat in cases brought or supported by “their” NGO.
This situation calls into question the impartiality of the judges, which is required by Articles 21 of the Convention and 28§2 of the Rules of Court. According to the latter provision, no judge may participate in the examination of a case if, inter alia, “for any other reason, his or her independence or impartiality may legitimately be called into doubt”. The Court clarified that the impartiality of the court, implied by the right to a fair trial, is defined by the absence of any prejudice or bias on the part of judges (see inter alia ECHR, Nicholas v. Cyprus, No 63246/10, 9 January 2018, §49). It can be assessed subjectively, by seeking “to ascertain the personal conviction or interest of a given judge in a particular case”, and objectively, by determining if the judge “offered sufficient guarantees to exclude any legitimate doubt in this respect” (Morice v. France [GC], No 29369/10, 23 April 2015, § 73).
Thus, according to the Court, in Castillo Algar v. Spain, (No 28194/95, 28 October 1998), at § 45:
“it must be determined whether, irrespective of the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. (…) Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. In deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the accused is important but not decisive. What is decisive is whether this fear can be held to be objectively justified”.
As the Court recalled again just a few days ago, “justice must not only be done, it must also be seen to be done” (Sigríður Elín Sigfúsdóttir v. Iceland, no. 41382/17, 25 February 2020, § 49). The fact that a judge sits with other judges within a Chamber, and not as a single judge, is not enough to remove the doubt on his impartiality since, as noted by the Court, because of the secrecy of the deliberations, it is impossible to know his real influence (see Morice v. France, [GC], op. cit., § 89).
In order to apply the impartiality standard of the Court to its own judges, we may take the example of Mr Yonko Grozev, the current Bulgarian judge. He was previously the founding member of the Helsinki Committee of Bulgaria (1992-2013), as well as a member of the board of the Open Society Institute of Sofia (2001-2004) and then of the Open Society Justice Initiative (New-York) from 2011 until his election at the Court. In this capacity, he brought several cases before the ECtHR, such as the famous one of the “Pussy Riot” (Mariya Alekhina and Others v. Russia, no. 38004/12, 17 July 2018) which was still pending when he eventually became a judge in April 2015.
It is obvious that such a lawyer has a strong experience with the human rights system. But a problem arises when one observes that, once elected judge, he adjudicated in cases introduced in 2014 and 2015 by the Helsinki Committee of Bulgaria (see D.L. c. Bulgarie, n° 7472/14, 19 May 2016. Aneva and Others v. Bulgaria, n° 66997/13, 77760/14 et 50240/15, 6 April 2017). There is no doubt that such situation raises an issue of impartiality and that the judge should have withdrawn. In another case, still pending, he sat while the Open Society Justice Initiative intervened as a third party in the case (see the proceedings before the Grand Chamber of Big Brother Watch and Others v. United-Kingdom, n° 58170/13).
The purpose here is simply illustrative, not to single out Mr Grozev, as 18 out of the 22 judges concerned had the same behaviour. Nor is the issue here that Judge Grozev exhibited genuine bias towards one of the parties, but that the appearance of such bias can be said to exist.
One may question whether the risk of impartiality also exists when the NGO is not an applicant, but a third party. In order to answer this, we may consider the fact that NGOs almost always intervene in support of one of the parties, generally the applicant, and that their interventions can carry real weight in the final decision. The risk of partiality of the judges because of third party interventions also exists. It should be noted in this regard that, in its provisions relating to incompatibilities, the Rules of Procedure of the Court do not distinguish between the two modes of action and forbids any former judge to “represent a party or third party in any capacity in proceedings before the Court” before the expiration of a period of two years after the end of their mandate (Article 4).
This is precisely what happened in the British precedent of Lord Hoffmann in the famous Pinochet case. After the House of Lords ruling in November 1998 that Mr Pinochet could not enjoy immunity from prosecution, in which Lord Hoffmann had participated, it emerged that Lord Hoffmann was an unpaid director of Amnesty International Charity Ltd, whereas Amnesty International intervened in the case in support of the extradition of Mr Pinochet. Lord Hoffmann’s wife had also been employed by the group for 20 years. Following this revelation, the ruling was set aside by the House of Lords (R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2). Eventually, the case was judged again by other judges, who ruled differently from the first ruling. Lord Browne-Wilkinson explained that “once it is shown that the judge is himself a party to the cause, or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure”. Applying those principles to the situation at stake, he declared that “in the special circumstances of this case, including the fact that Amnesty International was joined as an intervener and appeared by counsel before the appellate committee, Lord Hoffmann, who did not disclose his links with Amnesty International, was disqualified from sitting”.
Another problematic situation arises when former administrators of the OSF sat in cases brought by one of the many NGOs financed by that same organisation. According to the OSF, the relationship established with its beneficiaries is not only financial but aims to establish “alliances in pursuing crucial parts of the open society agenda”. Such a relationship between a judge and a party, although it is indirect, may give to the other party a reason to fear a lack of impartiality.
Only a small number of withdrawals
We can therefore question why there are so few withdrawals in such cases. Indeed, in the past 10 years, out of the 313 withdrawals mentioned in the cases, only 12 occurred while the judges concerned were in relation with an NGO involved in the case. The reasons of the withdrawals are never mentioned in the judgments; therefore, it is not possible to know (from the judgments) who asked for it, and why. There are also only three mentions of unsuccessful requests of withdrawals, two formulated by the applicants and one by a State. It is not possible to know, without consulting directly the files, what procedure the Court applies to those demands, and if it justifies its decisions in this regard.
One reason for this small number of withdrawals lies in the fact that there is no formal withdrawal procedure within the European Court (ECtHR), unlike at the Court of Justice of the European Union (CJEU) (Article 38 of Protocol No 3 on the Statute of the CJEU). The Rules of the ECtHR only provide for the duty for a judge to withdraw, on his own initiative, in case of doubt as to his independence or impartiality.
A “Resolution on Judicial Ethics” adopted by the European Court on 23 June 2008 somewhat clarifies the obligations of judges. It states that “In case of doubt as to application of these principles in a given situation, a judge may seek the advice of the President of the Court.” The European judge therefore has no obligation to inform its president. The document further adds that, “if necessary”, the president “may consult the Bureau” and “report to the Plenary Court on the application of these principles”. This is a very light procedure which leaves it to the judge concerned to make the final decision on his withdrawal and to inform the President. However, the latter is entitled “exceptionally” to modify the composition of the sections “if circumstances so require” (Article 25 § 4 of the Rules of Court). This power is necessary, but it can only be exercised in a timely manner if the President is informed by the judges of the existence of situations likely to question their impartiality.
Another practical reason lies in the fact that the parties are almost never informed in advance of the composition of the Court that will rule on their case, unless there is a public hearing. Therefore, a party generally cannot effectively ask for the withdrawal of a judge. However, the fact that the parties did not ask for the recusal of the judge does not free him from the obligation to take himself the necessary measures, according to the Court’s case law (Škrlj v. Croatia, No 32953/13, 11 July 2019, § 45).
A last reason, more subjective, may rely on the fact that the ECtHR and those NGOs share largely the same value system, therefore, it may not be obvious to the concerned judges to see conflicts of interests with organizations having broadly the same interests.
A need for solutions
As for the future, several measures could be implemented in order to remedy this situation, after what has been done in other European and national bodies. They are presented in the ECLJ report; the first step would be for the ECtHR to apply to itself the same rules it imposes on national jurisdictions, inter alia to formalize the procedures of withdrawal and recusal.
This would require establishing an obligation for the judges, and no longer only the option, to inform the President of the Court in case of potential conflict of interest. The Court would also have the duty to justify its decisions to refuse a recusal, in accordance with the requirements of its own case-law (Harabin v. Slovakia, No 58688/11, 20 November 2012, §136
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.