The Russian Question and the Council of Europe: where is the conflict headed?

In anticipation of the upcoming winter session of the Parliamentary Assembly of the Council of Europe (PACE), which will take place in Strasbourg between 21-25 January, Anastasia Dmitrichenko discusses why Russia may leave the Council of Europe (CoE) and why it would symbolize a milestone in the recent history.

The CoE is a pan-European intergovernmental organization focused on advancing the principles of democracy, the rule of law, and human rights across its forty-seven member states. It is particularly known for two things: supporting the abolition of the death penalty, which today has disappeared from every European country except Belarus, and protecting the civil and political rights of citizens of member countries via the European Convention on Human Rights and the European Court of Human Rights (ECHR). Any person (not necessarily a national of a state bounded by the Convention) can appeal to the Court if his or her convention rights have been violated on the territory of one of those states. In 2017, the ECHR reviewed 63,350 applications; the majority of judgments concerned violations of the right to a fair trial, the right to be free of torture and inhumane treatment, and the right to liberty and security.

Due to its limited capacity to affect the implementation of decisions by the condemned member states and the use of “soft measures” as an enforcement mechanism, the CoE is often criticized for being a meaningless bureaucracy. At the same time, a lot of legal experts consider the CoE system as one of the greatest achievements in the sphere of international human rights protection.

Adding peer-pressure to Russia

Russia’s decision to join the CoE in 1996 had a positive impact on Russian judicial practice. During the transition period of the late 1990-2000s, Russia was pushed to incorporate in its national legislation dozens of CoE’s charters and conventions going beyond the law of the ECHR. These charters and conventions claimed strengthening the protection of national minorities in Russia, strengthening local self-government, enhancing anti-corruption measures and other ambitious goals.

Another role of the CoE was applying peer-pressure in response to unlawful arrests and conviction of civil activists in Russia. Among them are the conviction of the Pussy Riot protest group (acknowledged by the ECHR as violation of five Convention articles), arrests of opposition leader Alexei Navalny (acknowledged by the ECHR as politically motivated), and strongly condemned criminal case fabricated against Oyub Titiev, director of the Chechnya office of the Memorial Human Rights Centre. The Court also repeatedly reported on Convention violations in some dubious laws introduced by Russia, e.g., prohibition of the “promotion of homosexuality” among minors, and is currently reviewing the so-called “law on foreign agents” restricting NGOs activities in Russia. Political pressure from the CoE has always been a source of conflicts in CoE-Russia relations, interpreted by the later as interference in domestic politics.

Europe’s largest political forum

Less known, but crucial for decision-making within the CoE are the Committee of Ministers (CoM) and the Parliamentary Assembly of the Council of Europe (PACE). Whereas the Committee of Ministers is made up of the Ministers for Foreign Affairs of the forty-seven member states, the PACE consists of Members of Parliament. Each member state is responsible for sending to PACE a national delegation of MPs representative of the nation’s size and political perspectives. PACE is Europe’s largest political forum, bringing together 324 MPs from a vast geographic region spanning from Norway to Azerbaijan and from Portugal to Russia.

Essence of the conflict

Following Russia’s annexation of Crimea, in April 2014 PACE temporarily suspended the voting rights of the Russian delegation and its participation in PACE’s ruling bodies, declaring that Russia’s actions were “in clear contradiction with the Statute of the Council of Europe”. In protest, Russian deputies walked out of the assembly. “The resolutions [condemning Russia’s action in Ukraine and suspending the voting rights] look like they are from NATO, not from an institution that is meant to unite Europe. This is a triumph of double standards” said Head of the Russian delegation to PACE Aleksey Pushkov. Since that moment, the Russian delegation has boycotted PACE plenary sessions until Russia is “fully and unconditionally restored in its rights”.

The crisis escalated in summer 2017, when the Russian Ministry of Foreign Affairs announced the suspension of payments of Russia’s contribution to the CoE. “Since we are not allowed to take part in decision making, we think it is our right not to pay” commented Vyacheslav Volodin, speaker of State Duma. As the Russian share in the total budget was quite significant (33 million Euro out of a total 454 million Euro), together with almost simultaneous Turkey’s decision to slash its contribution from 34 million Euro to 14 million Euro, it created a tangible money deficit. The CoE was hit by a budgetary crisis, and was forced to freeze some of its projects. It also faces the risk of downsizing.

This situation is aggravated by the fact that Russian representatives continued their full-fledged work in all of the other CoE institutions except PACE. Thus, without paying for it, Russia enjoys the benefits of being present in the Committee of Ministers, including the ability to affect policy-making at the Europe-wide level. Russian remains an official language while the rest of the member states pay for interpretation services. It seems even more unfair when it comes to the ECHR, where forty-seven member states collectively finance the  lion’s share of appeals coming from relatively few countries, including Russia.

Russia has claimed its readiness to resume payments and full-fledged participation in the work of the organisation if, and only if, PACE agrees to outright abolish the very mechanism of imposing sanctions on national delegations. Russian officials have repeatedly pointed to a supposed contradiction between the CoE’s Charter, which assures equal rights of all member states, and PACE’s rules of procedure provision, which gives the delegates present at a given session the right to impose sanctions via majority vote.

This demand was vigorously criticized, particularly by Ukraine, Poland, and the Baltic states, as implicitly recognising Russia’s annexation of Crimea, and potentially leading to even greater violations of human rights. They insisted – and keep insisting – that Russia withdraws from Crimea and de-escalates the conflict in East Ukraine before their delegation is allowed to participate fully.

An attempt to compromise

In the October 2018 PACE plenary session, the PACE’s Committee on Rules of Procedure proposed a draft resolution aimed at achieving a compromise between those opposing Russia’s demands and those willing to take Russia back. The resolution proposed increasing the threshold for launching sanctions from a simple majority of votes to 2/3 of votes of delegates present, and by increasing the number of votes necessary to initiate sanctions.

If PACE adopts the resolution, they will signal their readiness to bring Russia back into their fold. Supporters of the resolution – mostly the leftist parties of Southern Europe, but also some MPs from Germany, France, Finland, the Netherlands, Turkey, Serbia, Armenia and Azerbaijan – have argued that international organizations exist to mitigate conflicts, not escalate them. Readmitting Russia would also give the CoE at least some control over its actions, while leaving Russia out would mean even greater unpredictability. Olivier Becht, a MP from France, described the dilemma as follows: “If we vote against [changes to the sanctions procedure], we will push Russia to withdraw from the CoE. And this will be a catastrophe. If we vote for it, then we will tell Russia: what it does can be forgiven. And this is also a catastrophe because it’s impossible to imagine something worse than what Russia has done in Ukraine”.

After much debate at the October session with no clear outcome, the “Russian question” was postponed until January 2019.

Why compromise?

Some critics have accused the CoE of betraying its principles and values out of fear of financial consequences. The budgetary crisis does put pressure on the CoE’s work, but it is not the only driving force.

A Russian withdrawal from the CoE might become a security threat. Experts foresee further tightening of dividing lines in Europe and the emergence of a new, dangerous geopolitical reality. Isolated and further disintegrated from the cultural and political patchwork of Europe, Russia would cause even further alarm. Russia’s return to PACE, then, would not necessarily encourage its aggressive politics, but would be an attempt to return Russia to the European “rails” it was following with greater or lesser enthusiasm from 1996 to 2014.

Departure from the CoE would also mean the end of ECHR jurisdiction in Russia. Although Russia is often accused of not properly complying with the Court decisions (a problem admittedly many countries face), the ECHR still remains the last resort for many Russian and foreign nationals who cannot find justice in Russian courts. One expects significant deterioration of human rights protection, especially regarding torture in prisons, unfair trials, political persecution, and shrinking space for civil society. The departure of Russia from the CoE could worsen the conditions for political prisoners in Russia, especially those of Ukrainian origin.

Another dangerous consequence might be the return to Russia of the death penalty, which was never formally abolished, but placed under moratorium in 1996 as a precondition for membership in the CoE. Since then, the death penalty has not been used in Russia.

When it comes to regulation of the Russia-Ukraine conflict, it is very unlikely that Russia’s exit from the CoE would push Russia to reverse the annexation of Crimea or foster the implementation of the Minsk Agreements. On the contrary, without the constraints that the country’s membership in the CoE implies, the situation could escalate even further.

Finally, a prompt solution to the “Russian question” would allow the CoE to move forward and effectively address more acute human rights issues in Europe, such as those stemming from the Syrian refugee crisis, including the protection of refugees, family reunification, the detention of migrant children etc.

What’s next?

From the very beginning, Moscow has sent mixed signals regarding its willingness to return to PACE, which created uncertainty.

One position from Moscow has been the line that we should leave before they expel us. This argument is built on the conceit that Russia has been a scapegoat of the CoE and the ECHR for years. Head of the Duma’s Committee for International Affairs and a PACE delegate Leonid Slutskii declared membership in an organization where other countries “are wiping their feet on Russia and want only the resumption of our millions in payments” is not an option for Russia and that the Eurasian Assembly, in which Russia happens to take a leadership role, could substitute the problematic PACE in future.

Another line is staying but only if our conditions are taken into account. Russian diplomats, among them Permanent Representative of Russia to the CoE Ivan Soltanovskii, do acknowledge that the CoE is a serious platform for dialogue and an important part of Russia’s work to create a common European legal and humanitarian space. Sergey Lavrov, Russian Minister of Foreign Affairs, offered assurances that Russia would leave the CoE only if other members take actions to exclude Russia (the Charter of CoE provides such possibility if a member state fails to pay membership dues for two consecutive years).

There is consensus among the expert community that Russian interests lie in staying in the CoE. Claiming to be a great power, Russia needs international organizations to defend its interests; if it withdraws from CoE, it loses one of its few remaining tools to promote its interests and affect important developments on the European scene. Also, being part of the CoE means that Russia can point at double standards and human rights abuses in Western countries from a position of equality or superiority.

Russia’s demands of the CoE, however, are not purely a maneuver to increase its bargaining power within the organisation. An influential segment of the Russian political establishment supports the politics of isolationism. A popular expert opinion is that Russia will continue bargaining to stay on its own conditions but will – preventively – exit the CoE if the offered conditions are perceived as humiliating.

Therefore, one of the most important questions of the January PACE session will be the possibility of finding a political solution that would allow Russia to stay in the CoE and avoid deterioration of human rights protection for Russian citizens without undermining the integrity of the CoE and its fundamental values.