ACLJ Note: The following report is the first in a three-part series by our European affiliate, the European Centre for Law and Justice (ECLJ), exposing the extreme bias of judges of the European Court of Human Rights. Its publication provoked a storm in Europe and is now on the agenda of European parliaments.
What are the relationships between the judges of the European Court of Human Rights (ECtHR) and leading non-governmental organizations (NGOs), and what should the Court be doing about them, particularly in cases in which doubts as to the judges’ impartiality might arise? That is the topic addressed in a recent research report by the ECLJ entitled “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 also run much deeper, since the Court is composed, in a significant proportion, of former NGO employees or associates.
A review of the resumes of the judges in office over the last ten years (published on the website of the Parliamentary Assembly of the Council of Europe and of the Court) will show seven Left-leaning 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 organizations.
The extreme Left, George Soros-founded-and-funded 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.
Soros’s Open Society Foundation has established itself as the most influential organization in this area, using the $32 billion (U.S.) with which it was endowed since 1984. Through its policy of founding and funding other organizations, it has placed itself at the top of an important network of NGOs. In addition to its geopolitical actions, the OSF militates and finances initiatives in favor of the liberalization of drugs, prostitution, and abortion.
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.
An issue arises, however, when a judge is confronted with a case in which there is involvement of his or her 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 own NGO.
This situation calls into question the impartiality of the judges, which is required by Articles 21 of the European Convention on Human Rights 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 – not just 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).
It is particularly troublesome how much influence these Soros-funded NGOs can exert within the ECtHR. It was after all another Soros-funded organization that recently advocated that we “abolish the family” in response the global Coronavirus (COVID-19) pandemic.
In the next two parts of this series, we will discuss examples of this bias, the shockingly few recusals of the judges, and potential solutions.
Read the ECLJ’s full report, "NGOs and the Judges of the ECHR, 2009 –2019" here.
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ACLJ Note: The following report is the third and final in our three-part series by our European affiliate, the European Centre for Law and Justice (ECLJ), exposing the extreme bias of the judges of the European Court of Human Rights. In the second installment , we discussed the case of Bulgarian...
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