NGOs and ECtHR judges: A Clarification

The 5 March blog post by Grégor Puppinck is not really a result of academic research, nor does it manage to identify an actual problem of public policy. Despite its civility in style and appearance of balance, the blog post, as well as the underlying European Centre for Law and Justice (ECLJ) report written by the same author, represent political advocacy. The rather trivial findings of the report are (a) that several judges of the European Court of Human Rights have had some links with human rights NGOs, and (b) that Open Society Foundations funds many NGOs or other civil society actors, including universities.

The ECLJ report “NGOs and the Judges of the ECHR 2009-2019” has about 20 pages of text and a good number of annexes. It seeks to demonstrate that several of the ECtHR judges have some sort of links with NGOs active in the field of human rights, and that only in very few cases these judges have seen it pertinent to recuse themselves from a case where an NGO appears before the ECtHR as applicant, counsel or third-party intervener. The name of George Soros appears 20 times in the report which gives particular attention to documenting real or assumed connections between ECtHR judges and the Open Society Foundation. Some of the suggested “links” appear ludicrous when presented as part of a report intended to be taken seriously, including the fact that two consecutive Latvian judges have taught at the Riga Graduate School of Law which was established in 1998 by agreement between the Latvian and Swedish governments and the Soros Foundation of Latvia (see pages 8 and 10 of the report). That the report represents political advocacy is manifest from the fact that the ECLJ is currently collecting signatures to a petition “Putting an End to Conflicts of Interest at the ECHR” which on its banner shows the face of – you guessed it already – George Soros. Plainly for context, it is also worth noting that the Lead Counsel of European Centre for Law and Justice is Jay Sekulow, the private lawyer and impeachment counsel of President Donald Trump whose way of running charities has generated some media attention.

Do Puppinck and ECLJ nevertheless have a point? Or, if they are on a crusade, what’s wrong with the report? To me, the ECLJ report and the EJIL Talk! blog post suffer from a colossal error: Puppinck makes no effort to contextualise and put into proportion the limited role that NGO connections have had in the lives and careers of ECtHR judges, as compared against how strongly the ECtHR and the system of international human rights protection still today in 2020 is structurally biased in favor of States and governments. States write, adopt and ratify human rights treaties. In the early decades ECtHR judges were in reality sitting as judges on behalf of their own country, inter alia by serving as a filter and as judge-rapporteur. Judges are still elected “in respect of” a specific State of which they almost always are nationals. The government of that State has the upper hand in the selection of judges, as the selection is made from a list of three candidates nominated by the national government. Most ECtHR judges have served their own State, either in the executive branch (e.g., at the Ministry of Justice or, notably, as the Government Agent defending the State before the ECtHR), or as judges of national courts. Electing a national judge as ECtHR judge is not unproblematic, as the person will, because of the requirement of exhausting domestic remedies, be dealing with cases where a ruling by one’s own court, or by one’s close colleagues, will be challenged. Further, moving to a single non-renewable term for ECtHR judges has not necessarily enhanced their independence from their own government, as some judges, in particular from Central and Eastern Europe, may encounter difficulties in finding a new job after their years in Strasbourg, perhaps especially if they have demonstrated uncompromising independence in respect of their own country’s government.

Knowing all this, and having for more than three decades been involved in the practice of human rights law, I would assert that a proper study on the NGO links of judges or other independent human rights experts should be based on the hypothesis that in many cases it should be seen as a welcome balancing act, more a demonstration of independence than a sign of its absence. A rigorous study would work on categorisations and distinctions that would help to dissect the phenomenon and the various functions of NGO affiliations in the career trajectory of specialists in human rights law. Therefore I find it disingenuous and disappointing that the ECLJ report (page 20) suggests a very blunt and unsophisticated conclusion that NGO links of ECtHR judges are “challenging the principle of equality of arms” between the applicant and the respondent State. It does not diminish my disbelief that a couple of pages later (page 23) the ECLJ report suggests that a relationship with an NGO is a  problem as it demonstrates “ideological adherence” whereas civil servants would have “ideological neutrality”.  

The final section of the ECLJ report is devoted to solutions. Not surprising in substance, but coming in astonishingly open terms, the very first recommendation reads: “A first measure would consist in avoiding the appointment to the Court of jurists who used to be activists” (p. 24). Some of the other recommendations might have some merit in them, such as formalizing withdrawal and recusal procedures (page 25). But because of the way the ECLJ report by then has undermined any confidence in it being a rigorous and balanced study, even these proposals cannot be taken out of the context in which they were presented.

There may be individual cases or patterns in the practice of the ECtHR where proper analytical examination of how self-recusal in practice works would be merited. Puppinck’s blog post and the ECLJ report give particular attention to the active involvement of judge Yonko Grozev in litigation at the ECtHR before becoming one of its judges. That kind of career trajectory is well known in many Supreme Courts of the world where Members of the Bar constitute one legitimate pool of candidates for judicial appointment. Even here Puppinck is more sensationalist than scholarly: since Grozev started to hear cases as ECtHR judge, he has recused himself in a fair number of cases (see p. 17 of the ECLJ report) and, as far as I can see, the respondent Government has not objected to his participation in others. Clearly, the wide brush Puppinck uses to claim “NGO links” of ECtHR judges, also here results in a failure properly to assess whether Grozev’s participation in any single case has actually been a problem in respect of the principles of judicial integrity and impartiality. For the same reason, the statistics Puppinck provides through the use of very blunt tools are useless.

Reading Puppinck’s blog post and report rang a bell: did we not deal with the issue of NGO links when I served on the UN Human Rights Committee two decades ago, and didn’t we design a solution? In fact, the ECLJ report makes passing reference to the practice of UN human rights treaty bodies (page 23) but does not correctly report what happened there, and why. When I joined the Committee in 1997, it had already adopted the practice that if there was on the Committee a national of the State party concerned, he or she would not participate in the consideration of a case. This practice was the opposite to the approach of the ECtHR where the national judge had a central role. The simple reason was that the Committee only has 18 members and hence would not be able to secure the presence of a national member in a great majority of cases. To treat all governments and complainants equally, the approach of automatic recusal had been adopted.

A new issue emerged in 1997 because of a major share of all individual complaints then were about capital punishment in some Caribbean countries, and certain NGOs, including Interights, had organized the pro bono representation of the complainants and were pursuing a concerted campaign of strategic litigation towards the abolition of capital punishment. My fellow Committee member, the late Mr Rajsoomer Lallah who also was the Chief Justice of Mauritius, sat on the Board of Interights. After a principled and remarkably easy discussion the Committee adopted a Guidelines document in which it was stated that Committee members should not play an active part in preparing submissions to the Committee and that it was “desirable” that they abstain from being on the Board of Directors or the Executive Committee of an international non-governmental organization which regularly makes submissions to the Committee (Report of the Human Rights Committee 1998, UN document A/53/40, volume I, annex III). In other words, the Committee adopted a narrow approach and left it to Committee members to exercise good judgment and to demonstrate their integrity. NGO links as such were appreciated, as long as one was not involved in preparing submissions to the Committee or serving in a leadership position in an NGO that was making submissions. Mr Lallah did recuse himself in some individual cases, including the one by Ramcharan Bickaroo.

That should suffice at the ECtHR as well. We can live with the structural bias resulting from the State-centred way the human rights system was built because it is inherent in the judicial function that members of a human rights court or other adjudicative body will strive for independence and impartiality and will act with professional integrity. Towards that end, it is to be welcomed and maintained that some, several or many ECtHR judges also have NGO affiliations. It is a balancing act, not a problem. Self-recusal will probably suffice. And States, who would have the power to push through changes, do not seem to think that recusal issues pose a genuine problem. Suggesting a problem where someone has studied or taught at a university co-funded by George Soros, is only counterproductive for whatever constructive ideas one might have.

Image source: Guilhem Vellut https://www.flickr.com/photos/o_0/31727419618