Russia out of the Council of Europe: what about human rights?

Amidst the torrent of striking news from the frontline about war crimes committed by Russian troops against Ukrainian civilians, one piece of news – that will have profound repercussions in the future, especially regarding the protection of the victims of Russia’s rights violations – has unfortunately gone under the radar. On March 15, because of the aggression – “unjustified and unprovoked” according to the leaders of the member nations – the Parliamentary Assembly of the Council of Europe unanimously adopted an Opinion which considered that the Russian Federation can no longer be a Member State of the organization, thus initiating with the Committee of Ministers the expulsion procedure, provided for in Article 8 of the Statute. In fact, according to the Parliamentary Assembly, the Russian action also constitutes a serious violation of Article 3 and a breach of the obligations and commitments that Russia accepted when it joined the organization, including commitments to settle international and internal disputes by peaceful means and resolutely rejecting any threat of force against its neighbors, thus treating them as a zone of special influence. In an extraordinary meeting on the following day, March 16, the Committee of Ministers decided, in the context of the procedure launched, that Russia would cease to be a member of the CoE with immediate effect, ending the country’s 26 years of membership. However, the Committee’s decision comes a day after the Russian government, to avoid a humiliating expulsion, voluntarily and unilaterally withdrew from the Council of Europe and denounced the European Convention on Human Rights – “without regret,” the minister Sergey Lavrov said. The Russian declaration to the Secretary General, however, was not considered to affect Russia’s withdrawal: expulsion under Article 8 can only be invoked if the State in question has not complied with the request for withdrawal under Article 7. The previous day’s declaration of withdrawal by the Russian government was therefore not taken into account, and Article 8 was activated anyway. So, while in the CoE’s opinion Russia was the first member State to be expelled from the organization, for the Russian government it was an act of voluntary withdrawal – albeit arrived the day before being expelled, when it was already certain to happen. Perhaps accepting the expulsion would have been too harsh. Article 8 had already been used since February 25 when, following the leaders’ firm condemnation of the Russian aggression against Ukraine, it was launched to suspend it from its rights of representation in the CoE, together with the related legal and financial consequences.

Thus, because of the expulsion – or withdrawal? – Russia will also cease to be a High Contracting Party to the European Convention on Human Rights on September 16 – as confirmed in the Committee of Ministers’ and European Court of Human Rights’ resolutions, under Article 58 ECHR. This implies that the Court will deal with applications directed against Russia in relation to alleged violations of the Convention occurred until the deadline. For acts performed after that date, therefore, the Kremlin is no longer required to abide by the deliberations of the European Court of Human Rights: thus, it will be free from the control of Europe’s top human rights watchdog, affecting particularly the impact on the victims of Russia’s rights violations. Indeed, the action by the Russian government is aimed at trying to step away from any scrutiny over its actions against the rights of its people, thus sending the message that its leadership disregards human rights in general: it is not the Russian government, but the Russian public that will suffer most from the abandonment of the Convention. The withdrawal will obviously have catastrophic consequences for those whose cases against the Kremlin remain held up at the Court and for those who wish to file new claims as well – including those who have suffered possible war crimes and serious human rights violations during the invasion by Russian troops. Ukraine itself had initiated inter-State proceedings at the European Court of Human Rights, which ordered interim measures on March 1st, requiring Russia “to refrain from military attacks against civilians and civilian objects, […] and to ensure immediately the safety of the medical establishments, personnel and emergency vehicles within the territory under attack or siege by Russian troops”. However, there is no apparent evidence of Russia complying with this binding Court order, just as it is not certain that the Court will establish its competence for extraterritorial acts during the active phase of hostilities, since it is in doubt whether the Court considers that there is effective control of the territory by Russia: only in this case has the Court confirmed its jurisdiction. Moreover, the Russian exit will also deprive the CoE of nearly seven percent of its annual budget, or about $545m – although several Member States have reassured that they are ready to guarantee the financial sustainability of the organization.

The Council of Europe was formed in 1949 and seeks to uphold human rights, democracy, and the rule of law across Europe. To this end, within the framework of the organization, the European Convention for the Protection of Human Rights and Fundamental Freedoms was drawn up, which is considered the central text on the protection of fundamental human rights because it is the only one with a permanent jurisdictional mechanism that allows every individual to request the protection of the rights guaranteed therein. To do this, the European Court of Human Rights was established, considered the “Crown Jewels” of the CoE as it provides judicial protection of the Convention and ensures its implementation and enforcement. Initially, the jurisdiction of the Court was optional, but now, consistent with what had become the general practice among the State parties, the ratification of the Convention is considered a condition for membership of the Council of Europe, together with the jurisdiction of the Court and its competence to receive individual applications: this rule linking membership of the CoE to accession to the ECHR appropriately reflect the pre-eminent role played by this instrument on the European continent. Indeed, it helped eastern European nations to maintain a high level of protection of rights and freedoms democratize their political systems after the collapse of Communism.

Russia became a member of the Council of Europe in 1996, following the break-up of the Soviet Union a few years prior. In compliance with membership criteria, it was required to abide by the principles of the institution, as stated in Article 3 of the Statute. This led Russia to ban, for example, the death penalty: the denunciation of the Convention could therefore threaten a possible return of executions. Indeed, former Russian president Medvedev had described the withdrawal as “a good opportunity to restore a number of important measures to prevent especially serious crimes – such as the death penalty which is actively used in the US and China”. In addition, Russia would also lose control over other CoE mechanisms, such as the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment  and the European Committee for Social Rights. Yet, Russia’s Council of Europe membership had nonetheless led to a marginal increase in the protection of human rights in the country. Indeed, a 2020 report by Human Rights Watch noted how Russian authorities continued to abuse fundamental rights and restrict people’s freedoms. Several cases filed by Russian citizens against the government also piled up at the ECtHR, including the notorious case of the poisoning of prominent Russian opposition leader Alexei Navalny. There has also been little improvement in prisoners’ rights: despite ECtHR judgments, they are transported to prison colonies in Siberia or the far North, and transport and detention occur in inhumane conditions. In 2021 alone, the Court dealt with more than 6.000 applications concerning Russia, accounting for 24 percent of the current cases, 18.000 cases pending at the end of February, of which 90 percent have yet to be scrutinized. Despite few restrictions on violations, in fact for 25 years Russia has been the only superpower to be subject to supranational oversight in the field of human rights. And although Russian compliance with the Court’s rulings has been far from perfect, it remains an important tool. First, as long as Russia is formally committed to the ECHR, the latter remains a powerful tool in the hands of critics to confront the Kremlin with the gap between its legal obligations and the current state of human rights – in the same way that dissidents in the former Soviet Union used the 1975 Helsinki Final Act to expose the regime’s lack of respect for human rights. Secondly, Russia’s participation in the most important human rights system has a huge symbolic importance. Even in cases of low compliance, ECtHR judgments can delegitimize government actions and strengthen those of the opposition, while also attracting wide international media attention. While how the Court will address pending cases remains under consideration – since even if it makes a judgment on their cases, it is unclear how Russia will respond to any findings of ECHR violations by the Court –, the doubt about the condition of human rights in the future will be increasing, as Russian citizens or anyone whose human rights are violated by Russia will no longer be able to appeal to the Court. Head of the International Affairs Committee of Duma Leonid Slutsky reassured: “but don’t be afraid, all rights will be guaranteed in our country, necessarily and unconditionally” – who knows if there is any truth to it.

Relations between Russia and the Council of Europe have already experienced some turbulence. Twenty-two years ago, membership was widely contested because of the ongoing conflict in Chechnya, which is why, in its Recommendation 1456 (2000), the Parliamentary Assembly did not accept the credentials of the new Russian delegation, thus suspending the Russian delegation’s voting privileges in the Plenary Assembly from April 2000 to January 2001. Furthermore, it took initial steps to suspend its membership if it did not show improvement in Chechnya, also following the Recommendation 1444 (2000), in which it called on Russia to introduce a ceasefire and “stop immediately all indiscriminate and disproportionate military action in Chechnya, including use of young conscripts, and to cease all attacks against the civilian population”. In fact, the Russian armed forces were bombing their own people in the village of Katyr-Yurt in Chechnya. When this attack was examined by the European Court of Human Rights, it found very serious violations of the ECHR committed by the Russian armed forces in Chechnya and the wider North Caucasus region. These cases have remained on the agenda of the CoE, but no serious attempt has been made by States to enforce ECtHR’s judgments or to ensure that victims are compensated. Moreover, in 2014, after Russia invaded and annexed Crimea from Ukraine and supported separatists in eastern Ukraine, precipitating a bloody conflict, the Council stripped Russia of its voting rights in the Council’s Parliamentary Assembly. In response, Kremlin began to boycott the Assembly in 2016, refusing to pay its annual membership dues to the Council and thus placing the institution under financial strain. Russia claimed that its suspension by the Council was unfair, and demanded the restoration of voting rights, thus threatening its withdrawal unless its voting rights were restored in time for the election of a new Secretary-General. In 2018, Secretary-General Jagland organized a special committee to find a compromise with Russia, a move that was criticized as giving in to alleged Russian pressure, especially if voting sanctions were lifted. In 2019, the Council voted to restore Russia’s voting rights. Opponents of lifting the suspension included Ukraine and other post-Soviet countries, such as Poland and the Baltic States, who staged a protest by contesting the Russian delegation’s credentials, arguing that readmission amounted to normalizing Kremlin’s malign activity; supporters of restoring Russia’s Council rights included France and Germany, which argued that only Russia’s membership of the Council can be an opportunity to put more pressure on Russia to ensure the implementation of its obligations, while its withdrawal would be harmful because it would deprive Russian citizens of their ability to initiate cases in the European Court of Human Rights – exactly what will happen now.

But not all is lost. In fact, as Human Rights Watch points out, other international bodies – like the UN Human Rights Council – can help safeguard against violations and strengthen scrutiny over Russia’s human rights actions. The Human Rights Council, subsidiary organ of the UN General Assembly, was born from the ashes of the Commission on Human Rights, established to adopt and enforce the Universal Declaration of Human Rights. As with the ECtHR, the Human Rights Council also provides for a complaint mechanism to investigate allegations of human rights violations, submittable by a person or group of persons claiming to be the victims or to have a direct and reliable knowledge of the violations concerned – as stated in the HRC Resolution 5/1. In the framework of the UN system, there are other expert bodies set up under the core UN human rights treaties, including the Human Rights Committee – set up by the International Covenant on Civil and Political Rights –, and the Committee Against Torture – created by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: these Committees may also receive communications from individuals claiming to be victims of violations under the respective treaties. However, none of these mechanisms has the effectiveness of the ECHR. Furthermore, although Russia has also ratified the International Covenant on Economic, Social and Cultural Rights, it has not ratified the Optional Protocol, a side-agreement to the Covenant which allows its parties to recognize the competence of the Committee on Economic Social and Cultural Rights to consider complaints from individuals. So far, a first step forward that could be done to continue helping victims of rights abuses in Russia would be to support organizations and independent media both inside and outside the country that focus on highlighting human rights violations in Russia. Always, however, keeping communication open with the Kremlin, so that it could get back on the path of rejoining the Council of Europe and thus submitting to the jurisdiction of the Court.

A return to the CoE membership would be desirable – and it would not be the first time. Greece, in fact, is the only precedent in this regard. The Council suspended Greece in 1967, after the Greek junta’s military coup d’État that ousted the Greek government and abolished democracy through mass arrests, purges, and censorship to suppress their opposition. The incident brought the junta into conflict with the Council: indeed, the repressive tactics employed became the target of criticism in the Parliamentary Assembly, but Greece claimed they were necessary as a response to alleged Communist subversion and justified under Article 15 ECHR. In September 1967, the Scandinavian countries and the Netherlands had filed a complaint before the Human Rights Commission of the CoE, alleging violations of most of the articles in the ECHR that protect individual rights. The case was declared admissible in January 1968; a second case filed by Denmark, Norway and Sweden for additional violations, especially of Article 3 forbidding torture, was declared admissible in May of that year. The Commission took the exceptional step of constituting a Sub-Commission and appointing a rapporteur to investigate, between 1968 and 1969, the accusations of gross human rights abuses, thus unearthing significant evidence violations of Article 3, regarding torture, and other human rights violations. On 12 December 1969, the Committee of Ministers considered a resolution on Greece. When it became apparent that Greece would lose the vote, on 19 February 1970 foreign minister Pipinelis denounced the ECHR and opted to leave the CoE before the matter could be brought to a vote. The decision strengthened the struggle for democracy and freedom, said former Greek Prime Minister Papandreou. Thus, following the fall of the regime in 1974, Greece was readmitted to the Council. And this is precisely the wish for Russia.