The chapter looks at how the European Court of Human Rights deals with restrictions on the right to run for election. It includes a discussion on how the Convention deals with issues of inclusion in respect of women and minorities.

This chapter explores how the European Court of Human Rights deals with the design of electoral systems and the electoral process. It highlights the largely deferential attitude of the Court as to the question of choice of electoral system, but also notes the willingness to develop more procedural protections.

We emphasise the most important effects of the concentration of litigation against certain Eastern countries: the politicisation of human rights and the rise of tensions between the EU, the US and nationalist regimes. We demonstrate how the growing role played by private foundations impacts international relations and contributes to the birth and development of a new Cold War between these countries. In particular, we show that through a combination of litigation and advocacy, NGOs can increase pressure on the European human rights system and on certain national states, maximise the extent to which the CoE monitors certain Eastern countries and, in the process, bring judicial and political changes, which may lead in the mid- and long-term to regime change in Russia and in other Eastern countries. The potential lack of compliance of some Eastern member states with reinforced monitoring allows private foundations to stigmatise them as unreliable rogue states responsible for the ECtHR backlog and for the general malfunction of the ECHR system. We draw on Eastern legislation and on EU and US foreign policy to analyse these political tensions.

Chapter 5 analyses the effects of the growing influence of private interests on the orientation of European case law. The cases in which the OSJI and NGOs (backed up by private foundations) intervene are notably selected for their potential prioritisation by the Courts on the grounds of the right to life, the right to dignity, and the right to freedom and legal detention; for their potential to affect the Convention’s effectiveness; or because they raise questions of general interest and lead to pilot/leading judgments (which are considered by the ECtHR as an absolute priority in its own policy). Cases are also selected for their political and legal impacts on specific areas and countries. The first part of Chapter 5 sheds light on the concentration of applications lodged by private foundations and NGOs on specific policy areas and specific countries, including Eastern European nationalist regimes and Russia. The second part of the chapter deals with countries including the United Kingdom, Ireland, Germany and France and cases (such as austerity cases) that are neglected, not captured or even completely ignored by private foundations and NGOs.

Through repeated litigation and advocacy, private foundations and some NGOs funded by them are influencing not only the actual content of each individual decision of the ECtHR, but also the overall shape of the case law of the Strasbourg Court through inputs (applications brought before the ECtHR and evidence used by the Court) and outputs (active participation in the execution of ECtHR judgments). While some US socio-legal scholars have assumed that NGOs are captured by their private funders (Vincent 2019) in their litigation efforts before the US Supreme Court, we have demonstrated that private foundations (in particular the OSF) do not only finance some litigating NGOs but also take cases to the European Courts directly. In doing so, they partly capture the Courts’ jurisprudence by orienting them towards highly political cases (territories and political topics) and the defence of the rights of certain minorities (such as Muslims, Roma, migrants, LGTB persons, prisoners, terrorists, human rights activists and political opponents supported by some private foundations), especially in Eastern countries and in Russia. In particular, repeated litigation plus public policy advocacy by NGOs specialising in litigation before the ECtHR and the CJEU shape the way in which the conflicts underlying cases are selected, discussed and resolved.

Chapter 4 sheds light on the last significant indicator of the growing capture by private foundations of the European justice system as private foundations are increasingly involved in the reform and structure of the European Courts thanks to advocacy efforts. The new constitutional designs of the European Courts and the development of a management approach applied by the Courts and partly brought about by the litigation activities of private foundations could enhance the influence of those foundations on the Courts' jurisprudence (and on the execution of their judgments), since such management techniques tend to benefit professional, repetitive and well-funded litigants. In this context, private foundations could be encouraged either to engage or to reinforce their involvement in litigation before the European Courts. They could be also motivated to increase their voluntary financial contributions to the EU and CoE organisations if they receive more influence over them in return. As evidence of this trend, we draw on internal and advocacy documents drafted by the European Courts, NGOs and private foundations concerning the successive reforms of the European human rights justice system.

This book aims to contribute to the analysis of European human rights justice, and in particular of the case law of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), from what seems to me an unexplored perspective. In a nutshell, I not only consider the case law of the ECtHR and the CJEU as a given and fixed output but also pay attention to the role played by inputs in the form of petitions brought before the Strasbourg and Luxembourg judges by repeated players (and the litigation strategies that underpin them) in making the case law of the ECtHR and the CJEU.