The cases in ECtHR should be judged again

NGOs have become policy instruments, and are primarily seeking influence. Some NGOs, such as the Open Society Foundations (OSF), have invested heavily in this system and are now indispensable

Grégor Puppinck
Източник: Правен свят

Mr. Puppinck, the report "NGOs and Judges of the ECHR 2009 – 2019, written by  you and Mrs. Delphine Loiseau has raised publicly  a lot  of  questions which have  been  neglected  till now but  are of  highest importance for the rule of law in all states. The report is showing strong connections between judges from the ECHR, including two Bulgarian judges, and Open Society Foundation and other NGOs with economical and political interests. How did this information came to your knowledge?

I have been working with the European Court of Human Rights for almost 20 years. Along with the ECLJ, I have participated in some 40 cases before this court. Over the years I have seen the increasingly ideological evolution of its jurisprudence on social issues. This has led me to write a book "Les droits de l'homme dénaturé" (Le Cerf, 2018) in which I analyse 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 has "expedited" important cases, including the Lambert case last July. All of this prompted me to undertake this further research into the ideological profile of the judges who make up the Court. The choice of these European judges is a major political issue; yet it is largely ignored, unlike the 9 judges of the US Supreme Court who are known to the American people, including for their opinions. It was important to break the myth and show the politics behind the smooth façade of the institution.

After the publishing of the report you have raised the question about France stopping the execution of the decisions of the ECHR. Is it possible to be done from legal stand point and would you say it should be done by other states as well?

It is not me, but important French politicians who are calling for the suspension of the participation of France to the system until the ECHR clarifies this issue.  The United Kingdom is also considering withdrawing from the ECtHR. On my part, I consider necessary that the ECHR answers to the issues exposed in the report, for its own credibility. If it doesn’t, its situation would deteriorate. I’m in favor of a reform of the Court, of its "ideological cleaning". 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 rules that it prescribes for national courts on the right to a fair trial.

To this end, it should in particular:

- require judges to publish declarations of interest;

- establish effective procedures for deportation and recusal;

- inform the parties in advance of the composition of the bench;

- impose on judges the obligation, and not only 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 heading asking the applicant to declare whether his or her application is submitted with the collaboration of NGOs, and if so, which ones.

It remains to see what the ECtHR will do with its past most problematic judgments. According to its own case law, those cases should be judged again. This should be the case especially if a party requests the revision of such judgment. This may happen.

On the website of ECLJ there is a petition for "Putting an end to conflicts of interest at the ECHR" which till present is signed by more than 9000 people.

The Bureau of the Assembly of the Council of Europe (PACE) will have the duty to answer our petition, according to the rules of the Assembly. We know some MPs are willing to work on this matter, and we hope they will be allowed to do so; but I’m not sure they will have the freedom, or the courage, to do so. We need a lot of support in this order. It is also incumbent on lawyers to defend the integrity of judicial institutions. This is why we also invite them to attach their signature to the "Appeal of the lawyers" by which we ask the European Court of Human Rights to take the necessary measures to restore the conditions of its independence and the impartiality of its judges. This appeal not only denounces the problems, but also recommends solutions, in particular the application by the Court itself of the rules it imposes on national courts regarding the right to a fair trial.

 Prestigious lawyers have already agreed to this. They include a former Slovenian judge at the European Court, a Spanish academician who is a member of the Institute, councillors of State, an honorary Advocate General at the Court of Cassation, a rector of an academy, a university dean, law professors, lawyers, etc. To join this call, please send an e-mail to with your contact details, titles and functions, preferably before 15 March 2020.

What consequences do you expect to come after the report? What actions should be taken by the states regarding those judges for which are raised questions  regarding  their  independence and  neutrality?

I hope that the Court will be more "free" from the influence of NGOs such as the Open Society Foundations and its affiliated organizations. I hope the Court will adopt new rules to stop this situation. I hope that the members of the PACE will also be more carful when they elect new judges. It is for the Court to decide what to do. If such situation occurred in France, the magistrates would most probably be brought before a disciplinary court.

What the judges themselves should do? Are there suitable for keeping this position anymore?

It is for the Court to decide… if it has the courage to face the situation. The judges may also dismiss, this happen regularly for various reasons. Such dismissal would give a signal to the citizen that the Court takes this issue seriously.

Is there at the moment an actual mechanism in the Council of Europe for accountability of the judges of the ECHR? Should this situation change and what should be done? 

No, there is no such mechanism, and this should be changed.  The system needs an independent body in charge of controlling the ethical conduct of the judges, as for national judges. We are now facing a real problem. There are so many judges involved that it is very difficult for the Court to sanction all of them.

Do you expect the report to be a starting point for changes in the legal framework on both nation and international level, in order to guarantee the integrity and accountability of the judges in the ECHR more strictly?

Yes I do. I receive a lot of support from lawyers, law professors and magistrates; but the ECHR decided to stay silent.  Now, the ordinary citizen knows a bit about the "game of influence" of some NGOs within the Council of Europe, about George Soros. Many people are opening their eyes. I hope people will be more courageous in order to protect the independence of our judiciary system.

Similar relations between judges and NGOs with certain economical and political interests can  be  found not only in the  ECHR  but on national level as  well,  would  you say measures should be taken by the states as well in order  to assure  in better  way the independence of the judicial system?

NGOs have become policy instruments, and are primarily seeking influence. Some NGOs, such as the Open Society Foundations (OSF), have invested heavily in this system and are now indispensable. The OSF has established itself as the richest and most influential organisation in this field. Its policy of founding and funding other organizations has placed it at the top of an important network of NGOs. However, OSF's objectives and actions raise as much enthusiasm as they do concerns and questions. In addition to its geopolitical actions, OSF campaigns and funds initiatives in favour of, for example, freedom of expression, education for the Roma, as well as the liberalisation of drugs, prostitution, abortion, LGBT behaviour, and the rights of refugees and minorities. Within the OSF network, the Open Society Justice Initiative has specialized in strategic litigation. This organization, like a few others, is able to act simultaneously before all international bodies where law is being developed, and thus implement global strategies for the affirmation of new international standards.

Having learned to distrust governments and then economic powers, we must discover and learn to limit the power of private political powers such as NGOs. NGOs are not neutral any more.

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