September 27, 2018
By Lize R. Glas, assistant professor of European Law, Radboud University
Slightly less than a year ago, I wrote a blog titled ‘The Assembly’s row with Russia and its repercussions for the Convention system’ on Strasbourg Observers. In that blog, I described that the Parliamentary Assembly of the Council of Europe (Assembly) decided, in April 2014, to suspend the voting rights of the Russian delegation in reaction to Russia’s annexation of Crimea. The Assembly prolonged this sanction in 2015 and decided to suspend other rights of the delegation as well, such as the right to become a rapporteur. In response, Russia did not submit the credentials of the Russian delegation to the Assembly, meaning that this delegation could not contribute to the Assembly’s work. A former Russian Assembly member explained that Russia would only return if the Assembly would reverse its decisions. Russian has also responded by withholding its payments to the Council of Europe (CoE) in 2017 and 2018.
The title of the current blog is markedly different from that of my previous blog, because the Assembly will vote on a resolution that may make it possible for Russia to regain its rights, without giving in to the Assembly’s requests. This vote will take place on 9 October 2018. The current blog explains why and how this resolution has come into being and whether the resolution is a sign of the Assembly’s appeasement towards Russia.
A major repercussion of Russia’s reaction is that the CoE has missed out on Russia’s contribution of about 33 million euros in 2017 and 2018. This is particularly burdensome for the CoE, considering that Turkey, another former major contributor, decided to become an ordinary contributor on 31 October 2017. Consequently, Turkey’s contribution will drop from about 34 million euros to about 14 million euros. As a result of these developments, the CoE finds itself in a ‘budgetary crisis’. Russia will only resume paying its contribution once the rights of the Russian delegation ‘are fully restored’.
Another repercussion is that the Russian delegation has not been able to take part in the election of almost half the judges of the European Court of Human Rights (Court; 23 of the 47 judges).[i] The Russian Minister of Foreign Affairs Lavrov expressed his concern over this situation. The Chair of the Duma made a stronger statement, saying that Russia does not consider itself bound by the Strasbourg judgments if Russia is not allowed to participate in the elections. It is even more disconcerting that Russia’s Foreign Ministry spokesperson stated that she could neither ‘confirm nor deny’ that Russia would leave the CoE.
Additionally, the Russian delegation has not participated in electing the new Commissioner for Human Rights, Mijatović, and several Assembly Presidents. In June 2019, a new Secretary General will be elected. According to a statement of Russia’s Foreign Ministry, ‘[f]or Russia, the legitimacy of high-ranking officials … is in question if they have been elected without Russia’s participation’.
Appeasement by the Secretary General
In November 2017, the Secretary General Jagland visited European capitals to warn that, if Russia continues to be excluded from electing Strasbourg judges and other officials, the country may leave the CoE altogether. Jagland emphasised that, if ‘Russia is forced to leave, then 140 million people will be deprived of going to the highest court in Europe, which is very important for Russian citizens’. The ‘urgent question’ that Jagland posed was: ‘Will Europe be better off, safer, with Russia on its own, without being part of the judicial system of Europe?’. According to Jagland’s spokesperson, his answer is that Russia’s departure ‘would make things even worse from a human rights perspective’.
The statistics confirm that the Court has been particularly relevant for Russia: of all the judgements that the Court adopted since its establishment in 1959 to 2017, close to ten percent concerned Russia. Moreover, in almost 95 percent of the judgments adopted in respect of Russia, the Court found at least one violation, which is well above the average of 84 percent.
However, Russia has not executed each judgment in good faith: whereas it usually pays just satisfaction, it frequently fails to take the measures required to solve the problem causing the violation. Moreover, the Russian Constitutional Court has acquired the power to decide that a Strasbourg judgment, including the awarded just satisfaction, is not enforceable. The Russian judges have used this power to rule that Russia could not execute Anchugov and Gladkov v Russia, concerning the disenfranchisement of prisoners. Additionally, the Constitutional Court held that Russia does not have to pay the 1.9 billion euros that the Strasbourg Court had awarded to the applicant company in Yukos v Russia. According to Koroteyev, the legal director of a Russian NGO, ‘the patchy implementation of rulings made Russia’s threats about not carrying out further judgments ring hollow’.
The Secretary General has also expressed his concerns in a speech to the Assembly. He hoped that ‘we are able to find a way out of this situation’. According to Jagland, ‘under the current international order it is not for us to solve’ the conflicts in Ukraine and he emphasised that these conflicts ‘should not prevent us from protecting people’s rights in Ukraine … and in the Russian Federation’. Jagland wanted the CoE ‘to be present on both sides’ and pointed out that the Assembly ‘is currently unable to do this’.
Appeasement by the Assembly
Russia has created considerable leverage as the above statements reveal: it no longer pays its contribution to the CoE and it has threatened to question the legitimacy of newly elected officials, not to execute Strasbourg judgments and, ultimately, to leave the organisation. Although some doubt if Russia will carry out the last threat, Russia’s strategy seems to have worked with the Secretary General. The question is whether the Assembly will give in as well.
On 11 October 2017, the Assembly adopted a resolution in which it stated that ‘there is currently an inconsistency in the composition’ of the Committee of Ministers (Committee) and the Assembly and that ‘the overall situation in the Organisation is today counterproductive’. More specifically, the Assembly noted that the CoE Statute ‘provides for synergy between the two statutory organs as regards membership of the Organisation’, but that the Assembly ‘has developed rules governing the participation and representation rights … which do not provide for any kind of synergy … with the Committee’. Therefore, the Assembly decided to ‘initiate a procedure aimed at harmonising … the rules governing participation and representation … in both statutory organs’. For this purpose, the Ad Hoc Committee on the Role and Mission of the Assembly was established.
The Ad Hoc Committee drafted a report that it forwarded to the Committee on Rules of Procedure, Immunities and Institutional Affairs for examination. On 21 September 2018, the latter committee published a draft resolution, draft recommendation and draft report, which the Assembly will discuss and may adopt on 9 October 2018. The draft resolution proposes to amend certain provisions of the Rules of Procedure, three of which are discussed here. A two-thirds majority (Article 29 CoE Statute) must adopt this resolution.
First, it will become harder to challenge the unratified or previously ratified credentials of a delegation, because more members need to table such a challenge than before.[ii] Second, the draft resolution proposes to increase the majority that is required to impose a sanction from a simple majority (Rule 41) to a two-thirds majority. In this respect too, it will become harder for the Assembly to take action. I do not think that it is excessive that the important decision to challenge a delegation’s credentials or to take another sanction requires a two-thirds majority. After all, other major decisions require a similar majority (Rule 41.1.a) and the Committee makes the decision to suspend the rights of representation with a two-thirds majority (Articles 8 and Article 20(d) CoE Statute). Nevertheless, if the increased threshold would paralyse the Assembly even when a state is in clear violation of the CoE Statute, the threshold could present a challenge to the Assembly’s legitimacy, while the amendments are meant to increase its decision-making legitimacy. Although majorities and opinions change, it is unlikely that the new threshold will paralyse the Assembly based on the two resolutions that led to the sanctions against Russia. On the contrary, 77 and 75 percent voted in favour of the resolutions,[iii] meaning that the resolutions would have been adopted had the amended Rules of Procedure applied.
Third, the Assembly can currently deprive a delegation of the right to vote in the context of a challenge or reconsideration of credentials. Consequently, the delegation cannot take part in the election of CoE officials. The proposal is to prohibit the Assembly from taking away the right to vote for the Court’s judges, the Commissioner for Human Rights, the (Deputy) Secretary General and the Assembly’s Secretary General. This proposal significantly decreases the effect that depriving a delegation of the right to vote has and, thereby, decreases the effectiveness of the Assembly’s decision-making machinery, even though the amendments aim to achieve the opposite result. The draft report qualifies this amendment as necessary, because the ‘procedures for selecting and electing candidates fall within a remit that is exercised jointly (or at least shared) with the Committee’. This argument does not convince me. To illustrate, the Assembly alone is responsible for electing the Court’s judges (Article 22 ECHR); it does not share this responsibility with the Committee in any way. Moreover, the fact that the Committee is responsible for supervising the execution of the Court’s judgments (Article 46(2) ECHR) is not a logical reason to make it impossible for the Assembly to take away the right to vote for the Court’s judges; these are two unconnected matters. Instead of making this impossible, the Assembly could decide that depriving a delegation of the right to vote does not automatically mean that the delegation cannot take part in elections. In this way, the Assembly would create a more fine-tuned set of sanctions.
If these three amendments are adopted, it becomes harder for the Assembly to initiate and impose sanctions and the effect of one of the sanctions decreases. However, based on the voting pattern for past resolutions, the amendments do not necessarily mean that the Assembly will not be able to adopt sanctions against Russia in the future. Nevertheless, if it does turn out that Russia will regain full access to the Assembly in 2019 as a result of the amendments, it would do so without having ceded to any of the conditions that the Assembly set for Russia’s return, one of which was reversing ‘the illegal annexation of Crimea’. This course of events would undermine the Assembly’s legitimacy and, as was noted by Ukraine’s Ambassador to the CoE Kuleba, ‘will send a clear message to other CoE member states: “you can do whatever you want, even commit the most heinous crimes and still … [get] away with it.”’ If this would happen, Ukraine ‘would remain’ a CoE member, ‘though our parliamentarians [would] seriously consider pulling out from’ the Assembly.’
It is hard to escape the feeling that that the amendments are supposed to appease Russia, considering the timing of their introduction and because the third amendment would allow the Russian delegation to participate in the election of the Strasbourg judges regardless of any sanctions that may apply. Therefore, if the resolution is adopted, the Assembly would seem to give in to Russia’s demands at least to some extent, despite the fact that the draft resolution explains that the Rules of Procedure ‘should not be changed in an attempt to resolve a purely political problem’.
[i] The judges in respect of the following states were elected (in these years): Andorra, Armenia, Austria, Bulgaria, Ireland, Latvia, Lichtenstein, Luxembourg, Monaco, Serbia, Slovakia (2015); Cyprus, Finland, Slovenia, the UK (2016); Azerbaijan, Hungary, the Netherlands, the FYROM, Georgia (2017); Spain, Montenegro, San Marino (2018).
[ii] Currently, unratified credentials can be challenged by at least 30 members present in the Chamber, belonging to at least 5 national delegations (Rule 8.1); this may become 1/6th of the members (i.e. 54), belonging to at least 5 national delegations. Furthermore, currently, previously ratified credentials can be reconsidered based on a motion for a resolution tabled by at least 50 members, belonging to at least 2 political groups and 5 national delegations (Rule 9.2); this may become may become 1/6th of the members (i.e. 54) belonging to at least 5 national delegations.
[iii] In 2014: 145 in favour; 21 against; 22 abstentions. (145/188)X100% = 77% > (2/3)x100%= 67%. In 2015: 160 in favour; 42 against; 11 abstentions. (160/213)x100%= 75 > (2/3)x100%= 67%.