Batura, Justine

Dzehtsiarou, Kanstantsin

Zimmermann, Nesa

English

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The Closing Door in StrasbourgJustine Batura, Kanstantsin Dzehtsiarou,Nesa Zimmermann2022-02-26T15:52:27In response to the invasion of the Russian Federation into Ukrainian territory,the Committee of Ministers (CoM) has decided yesterday to suspend its rights ofrepresentation in the Council of Europe (CoE), the regional organisation in Europededicated to the protection of human rights.Kanstantsin, what is the significance of Russia’s invasion of Ukraine for theCouncil of Europe in light of its history? How do you assess the reactions ofthe Committee of Ministers?We are facing an unprecedented situation, because we are confronted with a majorviolation of international law with a full-scale armed aggression by one memberState of the CoE against another member State. In my opinion, none of the previoussituations from the recent history is directly comparable: the Nagorno-Karabaghconflict was confined to a specific territory, the previous Armenian-Azerbaijaniconflict and the conflict in Yugoslavia took place before their respective accessionto the Council of Europe. The Russian annexation of Crimea and the conflict inDonetsk and Luhansk were different in scale and methods of warfare. It is true thatthe situation in Georgia in 2008 could be considered comparable to some extent, butthe context was slightly different and the Council of Europe did not react in the wayas in the current situation and the reasons are open to speculation.What are the general modalities for suspending the rights of representationof a Member State of the Council of Europe? What are the options for theoutcome?The instrument provided for in Article 8 of the Statute of the Council of Europe isthe ultimate sanction that can be imposed on one of its parties. If a Member Stateshas seriously violated the core principles of the CoE in Article 3 of the Statute, theCommittee of Ministers may initiate the procedure of suspension of the rights ofrepresentation and request the State to withdraw from the CoE. Within the jargon ofthe Statute, this looks like a temporary measure. But really it is a sign that the CoEis no longer prepared to accept the behaviour of a particular member State unless itcompletely retracts its actions that caused triggering of Article 8. The legal procedurefor the suspension is provided in Article 8 of the Statute and Article 26 of the Rules ofProcedure of the CoM, but the specific modalities are not as clear as it might seem,given that the CoE has (luckily) experienced only one episode in this area.The procedure of suspension and expulsion can be divided into two parts: Firstly,the triggers that may initiate the procedure and secondly, the response to it. Amongthe triggers, one could think of a decision of the European Court of Human Rights(ECtHR) in the infringement procedure of Article 46 § 4 ECHR or a report by thePACE describing a particular dire situation of human rights. Already before the- 1 -eruption of this war, I have argued that Russia might not be well suited to be amember State of the Council of Europe and that various elements could havetriggered a suspension procedure long ago: its occupation of a territory of anotherMember State, its support for separatist movements or its failure to comply with thejudgments of the ECtHR and cooperate with the CoE. While the CoE had not beenprepared to take that step in the past, we have just learned that a clear violation ofArticle 3 of the Statute can be a trigger in and of itself.In a second step, the Committee of Ministers needs to take a decision on theresponse to the trigger. While the required majority has been debated (p. 452), it isclear that the vote does not have to be unanimous. Otherwise, the State concernedcould veto any suspension or expulsion. Once the decision is taken, a letter is sentto the representatives of the concerned State, informing them about the suspensionof their rights of representation and – in theory – asking the State to withdraw. Fromthis point on, there are three possible outcomes: First, the State itself can decideto withdraw under Article 7 of the Statute, which will take effect at the end of thefinancial year. Second, the Committee can decide to expel the State from the CoEunder Article 8 sentence 2 of the Statute, with the timing to be determined by theCommittee. And finally, given that the decision to suspend is not definitive, the lastoption is for the State to cease the serious violation that triggered the suspensionprocedure.  In a sense, Article 8 is drafted in a diplomatic manner, by giving priorityto the face-saving option of inviting the State to withdraw, while the option of forcibleexpulsion is subsidiary.How do you assess the decision of the Committee of Ministers to suspendRussia’s rights to representation? What concrete outcome regarding theRussian membership do you expect from this decision?This is the first time in the history of the CoE that the procedural avenue of Article8 of the Statute has formally been triggered. By comparison, the sanctions adoptedby the members of the Parliamentary Assembly in response to the annexation ofCrimea in 2014, were limited to certain voting and participation rights of the Russiandelegation in the Parliamentary Assembly.Yesterday’s decision relating to Russia is fundamentally different in terms of theseriousness of the reaction, given that the governments of 42 member Stateshave voted to suspend Russia’s rights to representation. This means that thesegovernments no longer want Russia to be represented in the Council of Europe.In its yesterday’s decision the Committee of Ministers stated that the “channels ofcommunication remain open”. For now, it is not entirely clear what that means. Ipersonally take it as a hint by the Committee that it would reconsider its decision ifRussia were to withdraw its military forces from the Ukrainian territory. However, PetrTolstoi, the deputy speaker of the Duma and former PACE vice-president, alreadystated that this is not going to happen. In a similar vein, Dmitry Medvedev calledthe suspension a “good opportunity” to restore the death penalty in Russia. Thisstatement actually underscores that the current Russian authorities do not share theCouncil’s values if the only reason for not having death penalty was their continuedmembership in the Council of Europe. So, despite this rhetoric of the Council, I think- 2 -that the decision to suspend Russia’s rights of representation will effectively result inending Russian membership, except in the unlikely event of a removal of the troopsfrom Ukraine. Of the three formal options resulting from the Committee’s decision– withdrawal by Russia, formal expulsion by the Committee, or a termination of theviolation – I personally think a withdrawal is the most likely outcome.As such, the suspension of Russia’s rights to representation does not haveany impact on Russia’s membership within the Council of Europe or its statusas a party to the Convention. What would be the consequences of a withdrawalfrom the Council of Europe?Should Russia decide to withdraw from the Council of Europe under Article 7 ofthe Statute, its membership would cease at the end of the financial year. In theory,the procedure for denouncing the Convention under Article 58 ECHR is distinctfrom withdrawing from the CoE and takes effect after a six months’ notice. But theend of membership in the Council of Europe means that the Convention no longerapplies to this party (Article 58 § 3 ECHR). So, two scenarios are possible: eitherRussia separately denounces the Convention with a six months’ notice, meaningthat it will cease to apply to Russia even before its withdrawal, or the Conventionwill cease to apply the moment the withdrawal becomes effective. However, as longas a particular State is party to the Convention, the general rule is that the Courtcan deal with complaints in relation to the territory under this State’s jurisdiction.This means that before the denunciation becomes effective, Russia is still boundby the Convention (Article 58 § 2 ECHR) and applications concerning human rightsviolations in Russia can still reach the Court. Obviously, the Court has jurisdictionover everything that is happening right now in Ukraine and Russia. From a ratherpragmatic perspective, however, it is doubtful whether Russia would even bother toengage with the Court’s judgments after the end of its membership, and it is hardlypossible to predict how the Court would deal with applications.In the face of the lack of implementation of ECtHR judgments, there havealready been calls for some time for Russia to be suspended or expelled fromthe Council of Europe. What consequences does the decision to take this stepnow entail for the Russian people?We are witnessing a period of significant reconstruction of the European humanrights landscape. Putin’s decision to invade Ukraine and the Committee’s decisionto suspend will have long lasting consequences for millions of stakeholders. In thepast, as the relationship became increasingly fraught, two and a half reasons wereusually put forward in favour of maintaining Russia within the Council of Europe:First, that the Council would provide an avenue for multilateral negotiations – whichmight cease to exist with yesterday’s decision.Second, Russian human rights organisations have supported Russia remainingin the CoE because it implied the ability of Russian people to complain directly tothe ECtHR, which was in some cases their only hope for justice. While we haveseen complaints that have been very effective, such as the interim measures in theNavalnyy case. However, over the last twenty years we have seen a steady declineof the Rule of law and democracy in Russia. Although these individual applications- 3 -might have brought relief to some Russian individuals, they couldn’t make a changeon a fundamental and strategic level. Against the backdrop of the “meta-function” ofthe Court of embedding human rights in the national legal system, the deteriorationof human rights in Russia proved that the Court was unable to effectively exercisethis function vis-à-vis Russia. Therefore, although the protection of individuals’ rightsis a strong and serious argument for maintaining Russia within the Council, I don’tbelieve that it outweighs the crossing of red lines by the Russian authorities.Finally, as a “half” argument, the discussion on a possible suspension had also beeninfluenced by the fact that Russia is a major contributor to the budget of the CoE.When the Russian delegates to the PACE were sanctioned in the aftermath of theannexation of Crimea, the Russian Federation stopped paying their fees, which wasan issue for the financial stability of the CoE.What impact does this decision of suspension have on the question of thelegitimacy of the Council of Europe?The presence in the CoE of States persistently violating the core values affects, inmy view, the legitimacy of the Council of Europe more than the current decision tosuspend Russia’s rights of representation. All member States have some problemswith some human rights, but of course it is a question of degree and red lines, raisingpolitical rather than legal questions. Russia’s invasion of Ukraine is causing massiveharm, devastation and – as a result – human rights violations. Therefore, I think thatit was an important and correct decision from the point of view of legitimacy of theCouncil of Europe.The only instance in which a Member State has withdrawn from the Council ofEurope concerns the withdrawal of Greece under military rule, after a coalitionof Member States had filed interstate applications. The fact that the Council ofEurope had taken a strong stance through the action of its Member States isconsidered by some commentators to have reduced the scale of the humanrights violations during the dictatorship and to have facilitated Greece’s returnto democracy. Do you see parallels with the current situation in Ukraine and inRussia?It remains to be seen whether the suspension decision will bring about changesbeyond the symbolism. I don’t think that it will convince Russia to pull back its troops,it won’t have immediate effect on this situation on the ground. However, the factthat Russia is not part of the family of European States is sending a very strongmessage, both for the Council of Europe and for the Russian people.However, I wouldn’t overestimate the impact of this gesture either. As for Greece,the circumstances in the 1960s were very specific. Nobody knows whether Greecewould have returned to the Council of Europe, if the military regime hadn’t changed.In the case of Russia, there would have to be a significant and rapid political changefor Russia to return. I am not convinced that the suspension decision will be adecisive reason for these political changes, but it might have some impact. In myview, the suspension is an important signal for the Ukrainian people, but I wouldn’t- 4 -expect an immediate and significant change in the Russian politics as a result of thisdecision.- 5 -

The Closing Door in Strasbourg

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The Closing Door in Strasbourg

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