One year after the report on NGOs and Judges of the ECHR: Overview

Photo : © Conseil de l'Europe

One year ago, on February 20, 2020, the European Centre for Law and Justice (ECLJ) published the report “NGOs and the Judges of the ECHR”. This report revealed a serious problem of conflicts of interest within the ECHR between some judges and NGOs.

Indeed, this report showed that at least 22 of the 100 permanent judges of the European Court of Human Rights who sat between 2009 and 2019 are former founders, collaborators, or leaders of seven NGOs active before the Court as applicants, representatives or third-party interveners. 12 of these judges are closely linked to George Soros’s Open Society, six of them being even former national and international leaders from it.[1] The Open Society also funds the other 6 organizations identified in this report.

The massive presence of judges coming from the same NGO network reflects the hold of large foundations and private NGOs on the European system of human rights protection and calls into question its impartiality.

On 88 occasions between 2009 and 2019, 18 of the 22 judges coming from NGOs sat in a case involving “their” own NGO, constituting a clear conflict of interest. During the same period, the seven NGOs were officially involved in at least 185 cases before the ECHR.

This situation thus questions not only the independence of the Court, but also the impartiality of its judges; it is contrary to the rules that the ECHR itself imposes on States in this matter.

This report sparked many reactions, and its accuracy has never been challenged. Unfortunately, it has collided with the first confinement, as well as with the silence and inertia of political and media authorities primarily willing to protect the authority of the ECHR and the functioning of global governance bodies.

Here is a summary of the main reactions known to date.

1. Reactions in society

Reactions from lawyers

This report made the news around the world of jurists. It was translated into English, Polish, Spanish, Russian, Croatian and Hungarian. Prior to its publication, the report was confidentially submitted to eminent jurists, including several former judges of the ECHR, who all considered its publication necessary for the good of the Court. The report was also sent, prior to its publication, to the President of the Court, Mr. Sicilianos, to its Vice-President, Mr. Spano (current President), and to Mr. Jean-Paul Costa (former President). They made no public comments.

On March 4, 2020, former judge Boštjan Zupančič told the press that he was not surprised by this situation and would have “liked the contents of this report to have been known earlier.”

In May 2020, more than one hundred national jurists, legal professionals, academics and judges, including members of national supreme courts, published a collective opinion expressing their concern about the situations of conflict of interest at the ECHR and calling on the Court to take appropriate action to correct this situation.

Only two academics attempted to minimize the impact of conflicts of interest, without being able to deny the veracity of the facts. This is the case of Martin Scheinin.[2] Another, Ms. Laurence Burgorgue-Larsen, falsified the conclusions of the ECLJ report, claiming that: “the Court was criticized, in particular, for admitting too many so-called 'liberal' NGOs as third-party interveners”.[3] This is false, and while the author specifies “in particular”, she takes care not to cite the criticisms formulated by the ECLJ in its report.

Several academic conferences, scheduled for the Spring of 2020 in Paris, Strasbourg, Warsaw and Spain were cancelled because of the pandemic.

Media reactions

The weekly magazine Valeurs actuelles dedicated its cover to a dossier presenting the ECLJ report. Several hundred articles were published in Europe and around the world. They are too numerous to mention. They mostly objectively and positively accounted for this report. In France, personalities such as Éric Zemmour, Michel Onfray, Gilles-William Goldnadel mentioned this report. However, relatively few major national newspapers presented the report in a precise manner.

Open democracy, part of the Open society network, organized a press campaign against the ECLJ in response to the publication of the report, through about fifty newspapers around the world, including Time Magazine and EuroNews.

Reactions from parliamentarians

Many political leaders made public statements, calling out to their governments or European bodies. In France, these include Philippe de Villiers, François-Xavier Bellamy, Julien Aubert, Valérie Boyer, Xavier Breton, Bérangère Poletti, Guy Teissier, Marine Le Pen, Jean Paul Garraud, Gilles Le Breton, Nicolas Bay, Jérôme Rivière...

Debates were organized in several national parliaments. This happened for example in the Netherlands and Denmark. Other debates and conferences, scheduled for the Spring of 2020, were cancelled or postponed due to the pandemic.

Various parliamentary questions were asked by national MPs to their governments, as well as by members of the European Parliament and the Parliamentary Assembly of the Council of Europe (PACE).

Three members of the PACE each submitted a written question to the Committee of Ministers of the Council of Europe. Portuguese Isabel Meirelles (EPP) asked “How to remedy potential conflicts of interest of judges at the European Court of Human Rights?” Montenegrin Milan Knezevic (NI) asked how to “[Restore] the integrity of the European Court of Human Rights”, and Hungarian Barna Pál Zsigmond (EPP) denounced “The systemic problem of conflicts of interests between NGOs and judges of the European Court of Human Rights”. Work within the Committee of Ministers is confidential. However, it appears that the 47 ambassadors cannot agree on a response.  They far exceeded the three-month deadline set for replying in this procedure, and during their meeting on 14 January 2021, they decided to postpone the examination of these questions “to one of the next meetings of the Ministers’ Deputies”, i.e., sine die.

However, this issue may be put back on the agenda of the PACE Bureau with the filing of the petition “Putting an end to conflicts of interest at the ECHR”, in which more than 50,000 European citizens ask the President of PACE to table this question on the Assembly’s agenda, pursuant to Rule 71 of the Rules of Procedure of the Assembly, “so that an investigation can be carried out and solutions to these malfunctions recommended to the Committee of Ministers”.

Meanwhile, in reading the annual financial reports of the Council of Europe, the ECLJ discovered that George Soros’ Open Society and Bill Gates’ Microsoft are the two largest private donors to the organization. These two organizations respectively gave the Council of Europe nearly €1,400,000 between 2004 and 2013 and nearly €690,000 between 2006 and 2014. The Open Society also supports Council of Europe initiatives, including the European Roma Institute for Arts and Culture. Since 2015, there is no longer any trace of such direct funding. However, the Council of Europe has established a special fund to receive such voluntary extra-budgetary contributions. These payments raise questions, as it is surprising for an intergovernmental political organization to be so permeable to private funding. A member of the Parliamentary Assembly of the Council of Europe referred this matter to the Committee of Ministers to ask that all documents relating to such financing be made public.

Members of the European Parliament also addressed questions to the European Commission and Council. This is the case in particular of MEPs Izabela-Helena Kloc (ECR), Maximilian Krah (ID), Jérôme Rivière (ID) and Robert Roos (ECR). On behalf of the European Commission, Věra Jourová replied that “The Commission has no doubt as regards the integrity and independence of the European Court of Human Rights.” European Commissioner Johannes Hahn completed this answer in a lapidary manner. As for the European Council, it stated that it did not have to comment on an NGO report. When these responses were published, it appeared that Open Society had the explicit support of Commissioners Hahn and Jourová. Posing next to Mr. Soros, the latter stated that “Open Society values are at the heart of EU action”. Doing the same, Johannes Hahn said that it is “always good to meet George Soros to discuss our joint efforts to boost reforms and open societies in the Western Balkans and Eastern Europe”. Between 2014 and 2018, George Soros and his lobbyists benefited from no less than 64 meetings with Commissioners and senior officials of the European Commission, which is considerable.

Government Reactions

Several members of governments also spoke publicly about the report.

The Russian Minister of Foreign Affairs issued an official statement relating to the ECLJ report. In this texte, he expressed concern about the “hidden influence” of some Western NGOs within the ECHR and stated that this influence “directly affects the quality, impartiality and fairness of the Court’s judgments”. Russia further believes that “appropriate consideration” of these malfunctions by Council of Europe member states, as part of the Court’s reform process, would help to correct and reduce “political interference” by these NGOs in the judicial process.

The Bulgarian Minister of Justice, Danail Kirilov, also made a statement to this effect, indicating that the Bulgarian judge, who was seriously implicated in the report, could be dismissed by the ECHR. Since then, it is Danail Kirilov who was finally forced to resign for having defended the independence of the Bulgarian General Prosecutor.

In response to written questions from national parliamentarians, national governments also reacted, including in France and Switzerland.

In France, deputy José Evrard asked a question to the government, which responded by reminding him of the rules for appointing judges to the ECHR. In Switzerland, Councilor Jean-Luc Addor questioned the Federal Council on the ECLJ report. Like the other public authorities, the Federal Council failed to reply on conflicts of interest, for the most part merely recalling the procedure for appointing judges and considering it beneficial that some of them come from NGOs.

1. Reaction of the Court

Reaction to the report

According to the newspaper Le Monde, the report “angered” the ECHR, which however decided not to react publicly and not to respond to the press after having noted the accuracy of the facts in the report. On April 22, 2020, during an exchange of views between the Committee of Ministers and Mr Linos-Alexandre Sicilianos, then President of the ECHR, the latter was asked by the Russian Ambassador about the report, supported by his Turkish counterpart. President Sicilianos did not challenge the report but sought to limit the responsibility of the Court, stating that the existence of judges coming from NGOs is the responsibility of the States as they must propose candidates for the position of judge. He allegedly did not deny the cases of conflict of interest but tried to put them into perspective by pointing out that the Court hears thousands of cases every year.

Later, the Court allegedly refused to respond to a request for information issued by the secretariat of the Committee of Ministers; a request made to serve as a basis for replying to three written questions put by members of the Parliamentary Assembly of the Council of Europe.

On November 20, 2020, Mr Robert Spano, Mr Sicilianos’ successor as President of the ECHR, was in turn interviewed during an exchange of views with PACE. Asked specifically on the issue of conflicts of interest, he answered on the link between judges and NGOs, but without mentioning the central issue of conflicts of interest. He declared indeed :

“I give the same answer that I have given and my predecessor Alexandre Sicilianos gave to the Committee of Ministers in May. There is no allegation which is credible in our view on any influence by non governmental organizations with the work of this Court. The fact that judges of this Court may have had in their previous professional lives an experience, a training in the field of human rights law through work in non governmental organizations shows the diversity of background that is necessary for an international court. But the main issue here I direct to the Parliamentary Assembly. The Parliamentary Assembly elects the judges. The judges’ curriculum vitae with all of the background information about their life’s work is before you when you make the discriminations. It is for you to decide the diversity of the group that is within this Court. I would simply say I do not accept, and I made that very clear, I do not accept the allegations that have been made in this report. And that is the same opinion that has been presented by my predecessor Alexandre Sicilianos.”

It should be noted that the main problem identified in the report is not that judges worked for NGOs before their election, but that they sit in cases while being in a situation of conflict of interest with these NGOs. President Spano does not answer this question.

The behaviour of the Court since the publication of the report

Fewer judges from NGOs

None of the four new judges elected to the ECHR in 2020 is significantly linked to the seven NGOs involved,[4] while two NGO-related judges have completed their terms.[5] Thus, the number of judges who are former collaborators or leaders of NGOs active at the ECHR declined from 13 to 11 in 2020. In March 2021, it should be noted that Belgium proposes among its candidates to the Court a member of the Board of the Open Society Justice Initiative.[6]

A significant increase in the action of NGOs at the ECHR

41 judgments published in 2020 indicate the participation of at least one of the seven NGOs involved as an applicant or intervener, compared to an average of 18.8 judgments per year between 2009 and 2019, even though the number of ruled applications decreased in 2020.

Persistent situations of conflict of interest

In 13 of the 41 judged cases in 2020, at least one judge sat in a direct conflict of interest[7] while their own NGO was a party or third-party. This is 35% of the cases involving these NGOs, compared to 48%[8] in the 2009 - 2019 period.

The Ukrainian judge, Ganna Yudkivska, whose term should have been completed in 2019, stands out for having sat in a direct conflict of interest situation seven times in 2020, in cases involving Helsinki Committees.

Also noteworthy is Yonko Grozev’s refusal to withdraw spontaneously from the case of D.K. v. Bulgaria (no. 76336/16), even though “On March 9, 2020, the Government requested that Judge Grozev withdrew because he was founder of the Bulgarian Helsinki Committee and its member between 1992 and 2013.” This Committee represents the applicants in this case. Yonko Grozev then submitted this request for withdrawal to the Chamber (which he presides), which rejected it on November 17, 2020.

In another 2020 case, Khadija Ismayilova v. Azerbaijan (No. 2) (no. 30778/15), Yonko Grozev sat despite the presence of the Helsinki Foundation for Human Rights among the third-party interveners. In contrast, Mr. Grozev withdrew in four other cases initiated by the Bulgarian Helsinki Committee[9] and represented by lawyers he is very close to (Natasha Dobreva and Krasimir Kanev), the latter who moreover contributed to his selection as a candidate for the ECHR.[10] Mr. Grozev also withdrew in a case initiated by the North Macedonian Helsinki Committee.[11]

Before 2020, Judge Grozev was in a situation of conflict of interest nine times, while on nine other occasions he withdrew to avoid such a situation.

Conclusions

Neither the veracity nor the importance of the facts revealed in the report were denied. However, to date, no visible action has been initiated to remedy the situation.

As a reminder, the following are the recommendations made by the ECLJ and a group of jurists to resolve the structural problems which led to this situation.

We believe that the Court should:

• require judges to publish declarations of interest;
• require candidates to the post of judge to publish any present or past links with NGOs active before the ECHR;
• inform the parties in advance of the composition of the Chamber so that they can exercise their right to objection;
• establish effective procedures for withdrawal and disqualification respecting the rules that the ECHR imposes on national jurisdictions;
• impose on judges the obligation, and not merely the possibility, to inform the President in case of doubt as to their objective independence or impartiality;
• establish a request form for third-party intervention showing possible links with the main parties;
• insert in the application form a section asking the applicant to declare whether their application is submitted with the collaboration of NGOs and, if so, which ones.

________

[1] 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, one to Human Rights Watch, one to Interights and one to the A.I.R.E. Centre.

[2] Martin Scheinin, “NGOs and ECtHR judges: A Clarification”, EJIL: Talk!, 13 March 2020.

[3] Laurence Burgorgue-Larsen, « Le basculement de l’histoire ? Les attaques contre l’universalisme des droits de l’homme », RDLF, 2021, chronique n° 06.

[4] Among the four 2020 newly-elected judges (Peeter Roosma - Estonia, Ana Maria Guerra Martins - Portugal, Mattias Guyomar - France, Anja Seibert-Fohr - Germany), none is significantly linked to the seven NGOs identified in the report. The only existing link is minor and does not deserve to be retained: Peeter Roosma received a scholarship from the Open Estonia Foundation for his Master’s degree at the Central European University (Budapest), founded by George Soros.

[5] Julia Laffranque (Open Society, Estonia) and Paulo Pinto de Albuquerque (Amnesty International, Portugal).

[6] Matthias Verbergt, « Vivaldi stuurt jonge, progressieve rechter naar Straatsburg », De Standaard (website), 8 January 2021.

[7] The following is the list of cases decided in 2020 for which at least one direct conflict of interest has been identified (in chronological order, with only the judges and parties involved):

• D. and N.T. v. Spain, no. 8675/15 and 8697/15, 13/02: Judges Kucsko-Stadlmayer and Eicke ó Third-parties: A.I.R.E. Centre, ICJ.
• Khadija Ismayilova v. Azerbaijan (no. 2), no. 30778/15, 27/02: Judges Yudkivska and Grozev ó Third-party: a Helsinki Committee.
• N. and others v. Belgium, no. 3599/18, 05/03: Judge Motoc ó Third-party: ICJ.
• Mándli and others v. Hungary, no. 63164/16, 26/05: Judge Schukking ó Third-party: a Helsinki Committee.
• Fartunova and Kolenichev v. Bulgaria, no. 39017/12, 16/06: Judge Yudkivska ó Applicants represented by a Helsinki Committee.
• Bagirov v. Azerbaijan, no. 81024/12 and 28198/15, 25/06: Judge Kucsko-Stadlmayer ó Third-party: ICJ.
• Yunusova and Yunusov Azerbaijan (no. 2), no. 68817/14, 16/07: Judge Yudkivska ó Applicants represented by a Helsinki Committee.
• T. v. Bulgaria, no. 41701/16, 09/07: Judge Yudkivska ó Third-party: a Helsinki Committee.
• K. and others v. Poland, no. 40503/17, 42902/17 and 43643/17, 23/07: Judge Eicke ó Third-party: A.I.R.E. Centre.
• Mirgadirov v. Azerbaijan and Turkey, no. 62775/14, 17/09: Judge Yudkivska ó Third-party: a Helsinki Committee.
• Muhammad and Muhammad v. Romania, no. 80982/12, 15/10: Judges Yudkivska and de Albuquerque ó Applicants represented by a Helsinki Committee; Third-parties: a Helsinki Committee, Amnesty International.
• K. v. Bulgaria, no. 76336/16, 08/10: Judge Grozev ó Applicant represented by a Helsinki Committee.
• X and Y v. North Macedonia, no. 173/17, 05/11: Judge Yudkivska ó Third-party: a Helsinki Committee.

[8] Of the 185 cases decided between 2009 and 2019 in which at least one of these NGOs intervened, the report identified 88 cases of conflict of interest, i.e. 48% of these cases.

[9] See judgments in the cases of Y.T. v. Bulgaria (no. 41701/16), Vasilev and Society of the Repressed Macedonians in Bulgaria Victims of the Communist Terror v. Bulgaria (no. 23702/15), Fartunova and Kolenichev v. Bulgaria (no. 39017/12) and Yordanovi v. Bulgaria (no. 11157/11), respectively published on 9 July, 28 May, 16 June et 3 September 2020.

[10] Bastien Lejeune, « Scandale Soros : le juge bulgare de la CEDH sur la sellette après les révélations de Grégor Puppinck », Valeurs Actuelles, 22 March 2020.

[11] ‘Macedonian Club for Ethnic Tolerance in Bulgaria’ and Radonov v. Bulgaria (no. 67197/13), 28 May 2020.