LAWYERS’ APPEAL FOR THE INDEPENDENCE OF THE ECHR
Lawyers, legal professionals, academics and magistrates, we express our surprise and concern about the conflict of interest situations revealed by the relationship between judges sitting at the European Court of Human Rights (ECHR) and NGOs active before the Court, as they appear in the report “NGOs and the judges of the ECHR: 2009 – 2019” (ECLJ, February 2020).
This report shows that 22 of the 100 judges who have sat since 2009 are former staff or directors of 7 NGOs active at the ECHR. It proves that 18 of them have sat, on 88 occasions during this period, in cases involving the organisation with which they had worked. The research conducted to establish these facts, which, to date, have not been challenged by the Court, establishes that the NGOs’ action before the Court lacks significant transparency.
Contrary to the principles of judicial ethics, such facts call into question the independence and the impartiality of the ECHR. In view of the importance of the ECHR’s case-law within the human rights protection system, we call on the Court to take the necessary steps to remedy this situation, both to clarify the past and to prepare for the future.
As to the existing case law, we ask the Court to consider favorably, as a matter of principle, any application for review of a judgment in which a judge has collaborated and, while being potentially liable to a conflict of interest, has then failed to declare his or her links to the NGOs involved and to withdraw themself. As to the future, we ask the Court to ensure that it respects the rules it prescribes for national courts in terms of rights to a fair trial.
To this end, it should in particular:
– require judges to publish declarations of interest;
– establish effective procedures for withdrawal and disqualification;
– inform the parties in advance of the composition of the Chamber;
– 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 his or her application is submitted with the collaboration of NGOs and, if so, which ones.
The Parliamentary Assembly of the Council of Europe, which is responsible for the final election of judges, should furthermore ask candidates for this function to declare their links with any organisation active in the ECHR and avoid the election of “activists” to the post of judge.
As lawyers attentive to the respect of rights, we consider the rapid adoption of such measures to be indispensable for the proper administration of justice and necessary to restore the confidence of European citizens and litigants in the work of the ECHR.