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Russia’s exclusion from the Council of Europe: the end of a long Russian dilemma

On March 16, 2022, during an extraordinary meeting of the Committee of Ministers, Russia was officially excluded from the Council of Europe after twenty-six years of membership. This comes after the Russian invasion of Ukraine, launched on February 24. The meeting was preceded by a consultative vote of the Parliamentary Assembly. Russia’s exclusion from the Council of Europe causes its withdrawal from the European Convention on Human Rights (ECHR), depriving its 145 million citizens of access to the European Court of Human Rights.

Established in 1949, the Council of Europe (CoE) is a pan-European intergovernmental organization dedicated to promoting and defending the principles of democracy, the rule of law, and human rights. Before the exclusion of Russia, the organization comprised over 820 million citizens in 47 member states. The organization protects the civil and political rights of people in its member states through the European Convention on Human Rights. Despite criticism, this regional system is considered one of the most successful in international human rights protection.

From Western Europe, the Council had expanded in the 1990s to include the former Soviet states. Russia joined the Council on 28 February 1996, despite its shortcomings in democracy and human rights. The rapprochement had already been initiated at the end of the 1980s, to integrate “the common European house” [1]. The acceptance of its candidacy was seen in Russia as a real foreign policy victory in the context of its reinvention as a post-communist power accepted by the West. Russia ratified the European Convention on Human Rights in 1998, allowing its citizens to appeal to the court after exhausting domestic remedies.

However, as a member of the Council of Europe, Russia did not hold the record of exemplarity. Indeed, its membership was marked by several conflicts during the second war in Chechnya (1999), Georgia (2008), and more recently the occupation of Crimea in Ukraine, thus flouting the rights enshrined in the ECHR. Any response from the CoE such as the suspension of the voting rights of parliamentarians from the Russian delegation in 2014, resulted in an aggressive return from Russia. The country gradually stopped paying its financial contribution, in 2017 and 2018, narrowly missing its suspension from the organization for non-compliance with financial obligations [2].

On the Russian side, the official position was ambivalent: for example, in 2018, Valentina Matvienko, chairwoman of the Council of the Russian Federation (upper house), stated that the government was considering leaving the organization if Russia’s participation was not considered to be up to their expectations.

The Council, forced to re-evaluate its relationship with Russia, was faced with a dilemma: either it chose to stand firm with the state by consolidating its fundamental objectives or continued to protect its citizens but lost legitimacy. In 1967, Greece set the first precedent for withdrawal from the CoE, only to rejoin four years later after the political regime changed. Despite the efforts made to improve the protection of citizens and the improvement of the judicial and political system, the Greek scenario was still possible in the case of Russia.

Russia’s withdrawal from the Council of Europe justified and facilitated by the founding texts

Russia’s membership in the Council of Europe is based on a fundamental misunderstanding, which has not been able to prevent the increasing aggressiveness of Russian foreign policy and the deterioration of democracy in the country. Thus, Russia’s withdrawal would be justified from the point of view of human rights violations and facilitated by the relatively simple procedure.

Accession based on a fundamental misunderstanding, without preventing the growing aggressiveness of Russian foreign policy

Russia’s accession in 1996 and its subsequent assumption of the chairmanship of the Committee of Ministers in 2006 were based on a misunderstanding. Indeed, accepted into the CoE in the name of geopolitical pragmatism and support for democratic transition, Russia has only regressed in terms of democracy and human rights. Initially, its objective was to assert itself in a new international format. There was no common ambition, and the state’s membership was essentially based on a historical opportunity. In 1996, the Italian delegation was already pointing out “worrying political facts” that were contrary to the values of the Council of Europe, such as the increasingly aggressive foreign policy towards the former Soviet republics since 1993. The formula “Where is the interest of Europe? Where is the interest of democracy?” about Russia’s accession sums up the situation that has been constantly worseningdestabilizing the Council of Europe.

In the late 1990s, Russia showed its independence by suspending the death penalty with a moratorium in 1996, without ratifying Protocol No. 6 to the Convention. Then, human rights violations committed by the Russian army during the second Chechen war deprived Russia of its right to vote in April 2000, which in turn suspended the participation of its delegation. This was seen as a humiliation by an organization that the member state now considered politicized and biased. Bolder since this episode, the Russian presidency of the CoE in 2006 was marked by the defense of a depoliticization of the Assembly (PACE) and the highlighting of current issues in Russia, such as the fight against terrorism.

Russian foreign policy has become increasingly aggressive, especially since the war in Georgia in 2008, the occupation of Crimea since 2014, or more recently the offensive in the Kerch Strait in the Sea of Azov in 2018. Similarly, we can cite the indictment by the Dutch prosecution of three Russians and a Ukrainian in the destruction of the Malaysia Airlines airliner (flight MH17) by a missile strike in 2014.

Responsible for more than 25% of cases before the Court in 2019, Russia was not inclined to pay full reparations to the victims, or to implement the decisions. For example, the Constitutional Court of Russia has repeatedly ruled that it is impossible to implement ECHR judgments [3].

A legally facilitated withdrawal in response to human rights violations

However, Russia did not intend to solve the problem of the application of certain decisions. Indeed, after the Yukos case, in which the Court obliged Russia to pay more than 1.9 billion euros to investors who suffered damage after the nationalization of the oil company, the Russian Constitutional Court considered that the Russian authorities could refrain from executing the decisions of the ECHR if they were contrary to the Russian Constitution [4].

In the jurisdictional field, Russia did not recognize the primacy of the ECHR, even though it often violated the human rights enshrined in the founding treaties. Russia’s withdrawal could be justified under the violation of Article 3 of the CoE statute, based on the argument that it would continue to maintain a deadly conflict in the Donbas region since 2014 that has cost thousands of civilian lives and caused forced displacement [5].

However, the withdrawal of a member state from the Council of Europe, governed by Article 8 of the Statute of CoE, is not as complex as a withdrawal from the European Union [6]. Indeed, if a violation of Article 3 is found, the member state is normally suspended from its right of representation and is invited by the Committee of Ministers to withdraw. If the invitation is not complied with, the Committee of Ministers may itself set the date of withdrawal.

Russia could also decide to withdraw on its own, according to Article 7, by informing the Secretary-General of its intention, and after one year all ties would have been severed. In theory, neither expulsion nor withdrawal from the state is time-consuming or difficult to achieve.

However, European diplomats have continued to favor negotiation and appeasement with the Russian member state. Indeed, in practice, the exclusion or even the withdrawal of Russia from the Council of Europe had its drawbacks. The organization would no longer have been a multilateral forum for dialogue between Russia and the European countries and would therefore have been unable to claim its pan-European character. Similarly, such a decision would have led to a significant financial and political weakening. The result is that the legal route did not seem to be able to resolve the Russian dilemma.

The Council of Europe and the Russians in favor of keeping Russia in the organization, albeit with conditions

The Council of Europe, considering the financial and political contribution of the Russian member state, continued to support Russia’s continued membership in the organization. The Russians, both the government and civil society, were in favor of it, understanding the benefits that membership would bring to them.

Considerable financial and political contribution of the member state

Russia’s withdrawal would have had repercussions for the Council of Europe. Indeed, its participation in the most important human rights regime had symbolic significance. Even if not implemented, the Court’s decisions tended to delegitimize the government’s actions and strengthen the political opposition. For example, Navalny’s conviction was found to be arbitrary.

On the other hand, Russia’s expulsion or withdrawal would have removed any leverage over the country and even increased the country’s unpredictability concerning its internal (potential suspension of the moratorium on the death penalty) and external (increased interference in Ukraine) policies. Without this member state, the Council of Europe would have been politically weakened, causing polarization among European states, which could have led to a logic of blocs of influence.

The loss of legitimacy would have been not only political but also financial. Already in 2018, after two years of absence of Russian money, the Council of Europe was in a budget crisis. Russia’s financial contribution so far amounted to 10% of the entire budget or almost 33 million euros. However, even when the state did not contribute financially, the other members had to manage the costs of the many requests from Russian citizens in 2017 and 2018. Also, its representatives could still influence the decisions of the CoE by sitting on the Committee of Ministers.

It should not be forgotten that the expulsion procedure, despite its ease of legal implementation, remains a complex process from a political point of view. Indeed, to trigger Article 8, the agreement of two-thirds of the representatives of the member states in the PACE and the majority sitting on the Committee of Ministers is required [6] [7].

These political reasons explain the lifting of the sanctions on Russia’s non-representation in the Parliamentary Assembly in 2019. Despite a list of counterparts such as the release of Ukrainian sailors from the Kerch Strait, Russia had not officially committed to implementing them, to the great displeasure of Ukrainian representatives.

A proclaimed attachment of the Russian side to the organization despite numerous criticisms

However, since its accession, Russia has ratified conventions (protection of national minorities, fight against corruption, etc.) and carried out reforms of the judicial system (against illegal arrests/conviction of political activists, etc.). For example, the conviction of the Pussy Riots collective was found to be contrary to Article 10 of the ECHR (freedom of expression).

The example underlines the importance of the Court for the 145 million Russian citizens who, in the event of Russia’s withdrawal, would have been deprived of a remedy to protect their rights. According to human rights activist Zoia Svetova, it was “the last hope” without which citizens would find themselves “almost back in the USSR”.

Even if Russians are generally attached to the Council of Europe in that it allows them to feel culturally European, their attitude towards the organization remains ambivalent. Some isolationist politicians felt that it would be better to turn to the Eurasian Assembly (controlled by Russia), which would have guaranteed more independence in foreign policy.

In a speech marking 25 years of membership in the Council of Europe, Russia’s permanent representative stressed that the state must remain within the organization at all costs to express its position and influence negotiations. Since the lifting of sanctions, bilateral cooperation had been quite positive, especially in terms of the fight against terrorism. The CoE had contributed important knowledge in the areas of education, youth, and the fight against historical reinvention.

 

Russian Foreign Minister Sergei Lavrov had sent a notice of withdrawal from the Council of Europe to the Parliamentary Assembly.

The exclusion that has just taken place, marks a temporary, if not definitive, break with the Council of Europe for Russia. The President of the Parliamentary Assembly, Tiny Kox, acknowledges a difficult yet necessary decision. The implications of the exclusion should be defined in the coming months by the Committee of Ministers.

 

[1] Speech of Mikhail Gorbatchev at the Council of Europe, July 1989

[2] Article 9 of CoE statute: « The Committee of Ministers may suspend the right of representation on the Committee and on the Consultative Assembly of a member which has failed to fulfill its financial obligation during such period as the obligation remains unfulfilled.»

[3] Anchugov and Gladkov v. Russia (prisoner’s right to vote), Constitutional Court of Russian Federation, n°11157/04 et n°15162/05, July 14, 2013

[4] Press release, “Constitutional Court Announced Its Judgement in Case of the Possibility of Implementing the ECHR Ruling of July 4, 2013, in Anchugov and Gladkov v. Russia”, Constitutional Court of Russian Federation, April 19, 2016

[5] Article 3 of CoE statute: « Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms.»

[6] Article 8 of CoE statute: « Any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7. If such member does not comply with this request, the Committee may decide that it has ceased to be a member of the Council as from such date as the Committee may determine. »

[7] Eckart Klein, “Membership and observer status” in Schmahl, Stefanie (dir.), The Council of Europe. Its Law and Policies, 2017, pages 354 to 377

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