Russia and the Council of Europe

Suspension of Russia from PACE

After the Russian annexation of Crimea in 2014, the Council of Europe imposed sanctions on Russia. Russian delegates’ voting rights in the Council of Europe’s Parliamentary Assembly (PACE) were suspended.^[1] That suspension has been renewed repeatedly since then.

In summer 2017, Russia suspended its annual payment of €33 million to the Council. CoE rules say that member states that do not pay their contributions will also be denied representation in the selection of judges for the European Court of Human Rights.

In November 2017, CoE Secretary General Thorbjørn Jagland toured European capitals warning of the risk that Moscow that could withdraw completely from the organisation unless the sanctions were lifted. He argued that this would be a blow to Russian citizens as they would lose access to the European Court of Human Rights. Russian cases take up a disproportionate amount of the court’s time, but that means that its decisions have had a significant effect in improving human rights protection in Russia.^[2]

Supporters of Ukraine and others argued against the move, saying it would be a signal to other organisations, particularly the EU, that it was time to soften opposition to the annexation of Crimea and the backing for rebels against the Ukrainian Government in the Donbass.

In March 2018, Russia announced that it was again withholding its payments to the CoE.

European Court of Human Rights

Many Russians have taken their cases to the ECtHR and the number of applications has increased in recent years. In 2017, Russia was the country with the highest number of new cases registered, with 370 cases, some way ahead of Turkey (138) and Romania (110). Russia has also had the highest total of awards against it. Notable cases can be found on the court’s Russia press country profile, updated June 2018.

Despite what the CoE regards as a legally-binding commitment of membership, Russia has not complied with some judgments of the European Court of Human Rights (ECtHR). In July 2015 the Russian Constitutional Court ruled that Russia should not be bound by all international human rights obligations if they were judged to conflict with the Constitution.^[3] In December of that year the Russian Constitution was amended, permitting the Russian Constitutional Court to declare ECtHR judgments non-executable in these circumstances.^[4]

The 2014 ECtHR decision that Yukos shareholders should be compensated after the company was broken up and its assets transferred to state-owned companies was declared unconstitutional by the Russian Constitutional Court. Some commentators argued that it was particularly this decision that the Russian authorities did not want to implement, since it would have cost the Russian State €1.87 billion. It was the largest award ever made by the ECtHR, but it was far less than another international court, the Permanent Court of Arbitration, had awarded.

The Venice Commission for Democracy through Law, a CoE body, issued in June 2016 a final opinion on the legal changes in Russia. The Commission stressed that the “execution of the judgments of the European Court of Human Rights is an unequivocal, imperative legal obligation”.^[5] The opinion went on:

The Venice Commission is of the opinion that the Constitutional Court should not be tasked with the identification of the manners of execution of an international judgment. The choice of the best way of enforcing a decision by an international court is usually a political/administrative matter, not a constitutional one and it is primarily the responsibility of the government.

While the Constitutional Court could legitimately criticise a modality of execution, any such criticism should result in the problem going back to the Executive, to find another way to execute the judgment, according to the opinion. The Commission called for the amendment to be reversed:

The provision that no execution measure may be taken if the Constitutional Court finds that a judgment is non-enforceable is in direct conflict with Russia’s international obligations under the Vienna Convention on the Law of Treaties and Article 46 ECHR and should be removed.

The Russia rapporteurs for PACE agreed:

Unconditionally honouring the Convention is an obligation incumbent on all member States and it is therefore unacceptable that Russia would not enforce a judgment of the European Court of Human Rights.^[6]

They went on to argue that the Russian Constitution should be amended if it clashed with the provisions of the European Convention on Human Rights.

PACE criticisms of Russia

Persecution of LGBTI people in Chechnya

In June 2018, the Parliamentary Assembly of the Council of Europe (PACE) passed a resolution on the persecution of LGBTI people in Chechnya. The summary of the report that led to the resolution said:

On 1 April 2017, the Russian newspaper Novaya Gazeta published its first report on a campaign of persecution against LGBTI people in the Chechen Republic, including cases of abduction, arbitrary detention and torture of men presumed to be gay, with the direct involvement of Chechen law-enforcement officials. This campaign unfolded against the backdrop of serious, systematic and widespread discrimination and harassment of LGBTI people.

The very existence of LGBTI people in the Chechen Republic has been denied by Chechen and Russian public officials. To date, no substantive investigation has been conducted. More than 114 LGBTI people and members of their families have fled the Chechen Republic.

PACE urged Russia to conduct an independent national investigation, allow an international investigation, ensure the protection of victims and witnesses and repeal the law prohibiting the promotion of non-traditional sexual relationships among minors.^[7]

The Assembly also called on national parliaments to “discuss measures to be taken at the national level to provide support to the victims and witnesses of the campaign of persecution against LGBTI people”.

Smolensk plane crash

The Parliamentary Assembly has also called for Russia to hand over the remains of the aircraft that crashed in Smolensk in 2010, killing the Polish delegation on board including the then Polish President Lech Kaczynski, twin brother of former Prime Minister Jaroslaw Kaczynski. The crash has become totemic in Polish politics and Lech Kaczynski has been enshrined as a national hero by the Polish Government.

PACE said that that under the Chicago Convention, the State where an air accident takes place is required to return the wreckage and other evidence to the State of registration of the aircraft as soon as the technical air safety investigation is completed. Underlining Russian-Polish tension over the incident, the text read:

The continuing refusal of the Russian authorities to return the wreckage and other evidence constitutes an abuse of rights and has fuelled speculation on the Polish side that Russia has something to hide.^[8]

Politically-motivated convictions of Ukrainians

In May 2018, PACE called for Russia to release a Ukrainian film-maker jailed in Russia on a terrorist conviction. Oleg Sentsov’s conviction was politically-motivated, according to the PACE rapporteur on the humanitarian effects of the war in Ukraine:

Mr Sentsov was detained in Crimea in 2014, convicted by a military court in Rostov-on-Don following a controversial and widely-criticised trial, and sentenced to 20 years in a high-security penitentiary. Ten days ago he began an open-ended hunger strike and I fear for his health. I call for his immediate release on humanitarian grounds.^[9]

PACE says that 64 Ukrainians have received politically-motivated convictions in Russia and calls for their release. On the theme of Ukraine, PACE has also criticised the opening of the bridge between Crimea and Russia.

Jehovah’s Witnesses

PACE rapporteurs on Russia have condemned the decision to class the Jehovah’s Witnesses Administrative Centre in Moscow an extremist organisation and close it and 395 local branches down. They said that the decision called into question freedom of religion in Russia and noted that the European Court of Human Rights had already issued a judgment in favour of Jehovah’s Witnesses’ right to practise their religion in Russia.

Russian views

Russia rejects the suspension of its representatives at PACE:

As is well known, in seeking to “punish” the delegation of the Russian parliament in 2014-2015 for the free choice by the people of Crimea to become part of Russia, the Assembly restricted the rights of Russian parliamentarians to such an extent that it made it impossible for them to continue their work in PACE.^[10]

The statement went on to argue that the forthcoming election of the Secretary General would be de-legitimised:

In June 2019, the Secretary General will be elected. For Russia, the legitimacy of high-ranking officials of the Council of Europe is in question if they have been elected without Russia’s participation.

The Russian Government also argues that the suspension of Russian delegates has changed the fundamental basis of cooperation in the Council of Europe and of international law: the sovereign equality of States.

Russian parliamentarians have justified the failure to execute ECtHr judgments, saying that if Russian representatives are not allowed to participate in the selection of ECtHR, judges, Russia should not abide by their decisions. Russian Federation Council Chairwoman Valentina Matviyenko said that without Russia’s participation, judges “will not be fully legitimate”.^[11]

The Ministry of Foreign Affairs expressed Secretary-General Jagland’s efforts to resolve the dispute, and said that the outstanding financial contributions would be paid as soon as the rights of Russian representatives were restored.

Outlook

Experts think that it is unlikely that Russia will leave imminently, since this would represent a sharp break with the West, and one that might be blamed more on Russia than on the other member states. One Russian human rights defender said that the dispute was being managed by the Kremlin to make Russian membership dependent on “some kind of diplomatic bargaining.” He said: “Now [we are seeing] a certain kind of aggravation of the situation in order to force the Council of Europe to hold various talks with the Russian side that are already happening”.^[12]

Full restoration of Russian participation may be unlikely given the fact that Russia is unlikely to reverse the annexation of Crimea or bring the conflict in Eastern Ukraine to an end. Some compromise might be possible whereby Russian delegates’ rights are partially restored.

[1]              See the Commons Briefing Paper Russia and the Council of Europe, 5 March 2015

[2]              ‘Russia tests Council of Europe in push to regain vote’, Financial Times, 26 November 2017

[3]              ‘Russian Constitutional Court Determines Moscow Not Bound to All Human Rights Court Rulings’, Moscow Times, 14 July 2015

[4]              ‘Vladimir Putin signs law allowing Russia to ignore international human rights rulings’, Independent, 15 December 2015

[5]              European Commission for Democracy through law (Venice Commission) Russian Federation, Final Opinion on the Amendments to the Federal Constitutional Law on the Constitutional Court, June 2016

[6]              ‘PACE Rapporteurs express deep concern at Russian Constitutional Court decision’, 21 January 2017

[7]              See the full list of recommendations at: PACE, Resolution 2230 (2018) Provisional version Persecution of LGBTI people in the Chechen Republic (Russian Federation), 27 June 2018

[8]              ‘Smolensk crash: Russia should hand over the aircraft wreckage to Polish authorities ‘without further delay’, Parliamentary Assembly of the Council of Europe news, 25 June 2018

[9]              ‘Rapporteur calls for release of Ukrainian film-maker jailed in Russia’, Parliamentary Assembly of the Council of Europe news, 23 May 2018

[10]             Foreign Ministry statement on the situation in PACE and prospects for resuming contributions to the Council of Europe, Russian Foreign Ministry, 4 July 2018

[11]             ‘Russia To Reject Strasbourg Court If Not Allowed To Help Select Judges’, RFE/RL, 14 October 2017

[12]             ‘Heading For The Door? Russia’s Dispute With Council Of Europe Intensifies’, RFE/RL, 30 October 2017