October 30, 2017
By Lize R. Glas, assistant professor of European Law, Radboud University
In early 2014, Russia seized the Crimean peninsula from Ukraine. The annexation has had grave humanitarian consequences and has set in motion a chain of events that is likely to affect the European Convention on Human Rights (Convention) system. The most direct effect is extra pressure on the European Court of Human Rights (Court). Already in July 2016, about 3,000 applications relating to the annexation and the hostilities in Eastern Ukraine were pending before it. Many applications moreover include a request for interim measures. Additionally, Ukraine has brought no less than three inter-state cases against Russia. Another clearly visible effect concerns the applicability of the Convention: Ukraine has declared a state of emergency under Article 15 ECHR, so it can take measures derogating from most Convention rights. Other consequences are less direct or visible; they are the repercussions of a decision of the Parliamentary Assembly of the Council of Europe (Assembly). The Assembly took this decision in order to denounce Russia’s actions in Ukraine.
In this blog, I discuss that decision and its (potential) repercussions for the Convention system.
The Assembly suspends the voting rights of the Russian delegation
In a Resolution of 10 April 2014, the Assembly pronounced that the actions of Russia leading up to the annexation of Crimea are ‘in clear contradiction with the Statute of the Council of Europe’, and specifically Article 3. This provision requires that the member states accept the principles of the rule of law and human rights and cooperate ‘sincerely and effectively in the realisation of the aim of the Council’. Because of the violation, the Assembly decided to suspend the voting rights of the Russian delegation to the Assembly. In 2015, it prolonged this sanction and decided to suspend other rights of the delegation as well, such as the right to become a rapporteur and to be represented in Assembly bodies.
Russia leaves the Assembly
In reaction to the sanctions, Russia did not submit the credentials of the Russian delegation to the Assembly in 2016 and 2017. The delegation could therefore not contribute to the work of the Assembly. Slutsky, a former Russian Assembly member, explained:
Russia will return [to the Assembly] only if certain decisions are changed, namely, the denial of the right to vote and other discriminatory actions, which drew a kind of dividing line within the Council of Europe … if such discriminating decisions cannot be taken in the future with respect to the delegation of Russia or other national delegations, then we will be able to return to work on the [Assembly] platform in full force.
It is therefore likely that the Russian delegation will only return once its rights have been fully restored.
Russia does not pay its contribution to the Council of Europe
Russia’s boycott now no longer just concerns the Assembly. In June, Russia announced that it has suspended paying its contribution to the Council of Europe until the Assembly reverses its decisions. In its statement, Russia explained:
[T]he situation at the [Assembly] has only been degrading: a rampant campaign has been launched there to persecute parliamentarians willing to normalise as soon as possible interaction with Russia within the Council of Europe.
Russia probably refers to one parliamentarian in particular: former Assembly President Agramunt. This person praised, in 2016, ‘the commitment of Russia and of Russian parliamentarians to the Council of Europe’ and visited, with a Russian delegation, al-Assad in Syria in early 2017. Because of this visit, the Assembly Bureau resolved that it had no confidence in Agramunt. Before a motion for his dismissal could be put to a vote in the Assembly, Agramunt announced his resignation on 6 October 2017.
Russia’s decision will have major financial consequences for the Council of Europe, because it alone contributed 33 million euros, which is 7.3 percent of the organisation’s total budget. With this amount, Russia belonged to the ‘major contributors’, which are the six states that provide almost 65 percent of the budget. When Russia fails to fulfil its financial obligation for two years (so at least until June 2019), the Committee of Ministers ‘may’ suspend Russia’s right of representation (Article 9 of the Statute of the Council of Europe and Committee of Ministers decision of 10 November 1994). Whether the Committee of Minister would indeed do this, is hard to predict. Rather than applying a sanction, the Committee of Ministers may prefer to deal with the problem behind the scenes, as its weekly meetings are conducted by diplomatic representatives.
Repercussion 1: The Court’s budget
The first repercussion of the Assembly’s decision, which is relevant to the Convention system, is financial. The Court does not have its own budget. Instead, the Council of Europe bears the expenditure on the Court (Article 50 ECHR). Russia’s failure to pay its contribution can therefore have implications for the Court. This year, the Court’s budget is more than 71 million euro’s, which comes down to about 15 percent of the Council of Europe’s budget. So, depending on how the budget will be restructured, the Court’s budget may need to decrease further (it already decreased in 2017 compared to 2016). This would be very bad news for the Court because it is ‘evidently under-funded’. To illustrate, the CJEU’s budget is more than five times higher.
Repercussion 2: Electing the Court’s judges
Although the Assembly is only mentioned once in the Convention, it has an important task: electing the Strasbourg judges (Article 22 ECHR). Because Russia has not contributed to fulfilling this task for over three years, it has not taken part in the election of 20 out of the 47 current judges. This is relevant in light of what the chair of the Duma said on 14 October 2017: that Russia does not consider itself bound by Strasbourg judgments if it cannot participate in the elections. This statement echoes a statement of the chair of the Russian upper house to the effect that judges chosen without Russia’s participation ‘will not be fully legitimate’. If Russia would indeed use its lack of voting rights as an excuse not to execute Strasbourg judgments, this would be another worrying sign of rebellion. Russia for example also has adopted a law that permits its Constitutional Court to rule that executing a Strasbourg judgment is ‘impossible’. The Constitutional Court already used this law to rule that Russia does not have to pay the 1.9 billion euros awarded by the Court to the Yukos oil firm.
Because the current Russian judge was elected on 2 January 2013 and because the judges are elected for nine years (Article 23(1) ECHR), this judge will serve for another four years approximately. If he withdraws earlier or if Russia still cannot vote in four years, it is questionable if Russia will submit the required list of three candidates to the Assembly, since it boycotts this body. This would be problematic, not only because the Court ‘shall consist of a number of judges equal to that of the’ states parties, but also because the judge elected in respect of the respondent state is always part of the Chamber or the Grand Chamber (Articles 20 and 26(4) ECHR). The latter problem could be solved by appointing a Russian ad hoc judge (Rule 29(a)(1) of Court), but this is neither a permanent solution nor a solution to the former problem.
As a side note, the Assembly also elects the Council of Europe’s Commissioner for Human Rights (Commissioner). The term of the current Commissioner, Muižnieks, ends next year. Russia can therefore also not participate in electing the new Commissioner if the sanction stays in place and if Russia does not submit its credentials to the Assembly. The authority of this office may thus also decrease in the eyes of Russia.
Repercussion 3: Supervising the execution of the Court’s judgments
The states parties to the Convention are collectively responsible for ensuring that the Court’s judgments are fully executed. They exercise this responsibility through the Committee of Ministers (Article 46(2) ECHR). If this body would suspend Russia’s right of representation in June 2019, Russia cannot vote in the ‘Human Rights meetings’, during which the Committee of Ministers decides on execution matters. This may be yet another reason for Russia to challenge the legitimacy of the Convention system: not only can it not participate in electing the Court’s judges, but also not in supervising the execution of the Court’s judgments.
It is highly unlikely that Russia will leave Crimea. Soon after the annexation, Russia passed a law that made Crimea officially part of Russia. Russia will therefore not ‘reverse the illegal annexation of Crimea’, as the Assembly requested. Consequently, the Assembly cannot reconsider its decision on the grounds that Russia has ceded to this or other requests. The only way out of this stalemate seems to be that the Assembly gives in to some extent at least.
Against this background, I wonder if the Assembly has overplayed its hand. When it took its decision, it was already rather clear that Russia would not listen. The Assembly was of course in a difficult position. Not responding to the annexation was hardly an option. A strong response was necessary, which took the form of annulling the voting rights (an even stronger response would have been annulling the credentials of the Russian delegation altogether).
I also wonder if the Assembly realised what the (potential) repercussions of its decision would be for the Convention system, although the effects remain the responsibility of Russia alone. The member states could come to the help of the Assembly here, by voluntarily contributing to the organisation’s budget, and thus the Court’s budget.
If the Assembly does not give in and if Russia persists, the effects are that Russia does not pay its contribution; neither elects the Strasbourg judges nor the Commissioner; and may eventually not be represented on the Committee of Ministers. Does such meaningless membership still make sense? The former Duma chair and current upper house chair said that perhaps Russia should reconsider its membership. A spokesperson of the ministry of foreign affairs however noted that leaving the organisation would be ‘ill-advised’. I agree with the latter. The Convention system would lose almost eighteen percent of the total number of potential applicants, which stands at 832 million. These millions of people would no longer have the backup option of bringing a case to the Court, which often results in the finding of a Convention violation in the case of Russia. And even though Russia does not always execute the Strasbourg judgements fully, the finding of a violation already constitutes some ‘just satisfaction’ and applicants who brought cases against Russia were awarded 7 million euros compensation by the Court in 2016 alone (which Russia paid on time in 41 percent of the cases).
 The judges in respect of the following states were elected (in these years): Andorra, Armenia, Austria, Bulgaria, Ireland, Latvia, Lichtenstein, Luxembourg, Monaco, Serbia and Slovakia (2015); Cyprus, Finland, Slovenia and the UK (2016); and Azerbaijan, Hungary, the Netherlands, the FYROM and Georgia (2017).