By Lize R. Glas, Assistant Professor of European law, Radboud University, the Netherlands
The background story: The Assembly takes action
As has been recounted on this blog and on other blogs already (see here and here as well), the Parliamentary Assembly of the Council of Europe (Assembly) and Russia have been in a row ever since the Assembly suspended the voting rights and some other rights of the Russian delegation in April 2014 (see also here). The Assembly took this measure because of, inter alia, Russia’s annexation of Crimea. In response, Russia has not submitted the credentials of its delegation since 2016. Moreover, Russia suspended its payment to the Council of Europe.
These events have not only led to serious financial consequences for the Organisation (by the end of 2019, Russia will have a debt of 90 million euros), but have also led Russia to question the binding nature of the European Court of Human Rights’ (Court) judgments, considering that it has not participated in the election of most of the Court’s current judges. To make things even worse, Russia has threatened to leave the Council of Europe if it would not be permitted to participate in the election of the new Secretary General during the June 2019 session (see also here). Russia has made its return to the Assembly conditional on the Assembly removing from its Rules of Procedure the provisions concerning the challenging of credentials and the imposition of sanctions. As a result of these events, the Council of Europe is now in a ‘deep political and financial crisis’.
The intermezzo: The Assembly’s Rules of Procedure
As part of the efforts to get Russia back on board, the Assembly debated a draft resolution in October 2018. This resolution would have partially amended the Assembly’s Rules of Procedure and would have made it harder for the Assembly to impose sanctions on a delegation. The official reason for these amendments was the need to harmonise the Assembly’s Rules of Procedure with those of the Committee of Ministers. However, ‘[w]hile Russia was not mentioned once in the report, it was addressed in each and every oral remark’ made during the Assembly’s debate, where ‘rational arguments and more emotional responses’ were exchanged. The debate on the resolution was a bit of an anti-climax: the Assembly referred the resolution back to its Committee on Rules of Procedure, Immunities and Institutional Affairs (Rules Committee).
In December 2018, the Rules Committee transmitted an Opinion to the Bureau of the Assembly (Bureau), which refers to a list of sanctions that the Assembly can impose (the list originated in an Opinion from 2014). In this Opinion, the Rules Committee explained that parliamentarians have ‘no jurisdiction to interfere with the Statute of the Council of Europe and the European Convention on Human Rights’ when it comes to the election of the Secretary General, the judges to the Strasbourg Court and the Human Rights Commissioner. Accordingly, the Assembly cannot interfere with the rights of its members to elect the above-mentioned personalities. The Rules Committee has the ‘exclusive competence’ to interpret or to clarify the meaning of the Assembly’s Rules of Procedure until and unless these are amended by the Assembly’s plenary.
In the same Opinion, the Rules Committee also pointed out that ‘only members of the Assembly, belonging to delegations whose credentials have been duly ratified by the Assembly, may take part in the election of [these] personalities’. The Assembly can challenge unratified credentials on both procedural and substantive grounds and it can reconsider previously ratified credentials on substantive grounds (Rules 7-10). The substantial grounds are a serious violation of the basic principles of the Council of Europe and a persistent failure to honour obligations and commitments and lack of co-operation in the Assembly’s monitoring procedure (Rule 8.2). Therefore, by not ratifying the credentials of a delegation, parliamentarians of the said state can be barred from membership of the Assembly, as has been the case on two occasions back in 1969 and 1981 in respect of the parliamentary delegations of Greece and Turkey.
The next stage: The Committee of Ministers’ position
In mid-May 2019, the news (see also here) appeared that Russia would not withdraw from the Council of Europe and start to pay its membership fee again as a result of efforts of France and Germany. These efforts culminated in a decision that the Committee of Ministers adopted at its 129th session in Helsinki. In their decision, the ministers:
recalled that one of the fundamental obligations of member States is to pay their obligatory contributions to the Ordinary Budget, as provided by Article 38 of the Statute; [and] having regard to the importance of the elections of the Secretary General and of judges to the European Court of Human Rights, would welcome that delegations of all member States take part in the next June part-Session of the Parliamentary Assembly.
These two points can be read as a strong incentive for to the Russian delegation to return to the Assembly (after all, they decided to walk out and did not submit their credentials between the years 2016 and 2019).
In the same decision, the ministers:
recalled that all member States shall be entitled to participate on an equal basis in the two statutory organs of the Council of Europe, as long as Articles 7, 8 or 9 of the Statute have not been applied.
It is not entirely clear what the Committee of Ministers means by the entitlement ‘to participate’. No matter its precise meaning, this phrase can also be read as a strong incentive for the Assembly to find a way in which it can, already now, admit (ratify the credentials) the Russian delegation back into its midst. Considering the spirit of the decision, I assume that the Committee of Ministers was convinced that the Russian delegation should be allowed to take part in the voting for the new Secretary General in the June 2019 session.
It is curious that the Committee of Ministers attempts to intervene – for the first time – in this way in the internal affairs of the Assembly (see also here). The Statute of the Organisation does not give a legal basis for this intervention. On the contrary: Article 16 provides that the Committee of Ministers shall, subject to [inter alia Article 28] decide with binding effect all matters relating to the internal organisation and arrangements of the Council of Europe’. Article 28(a) lays down that the Assembly ‘shall adopt its rules of procedure’. As was noted by an Assembly rapporteur: ‘the Statute confers on the Assembly the exclusive competence for enacting its own rules’. Therefore, the Committee of Ministers does not have the competence to dictate to the Assembly how it should function.
The ending (at least for now …): The June 2019 session
On Monday 24 June 2019, the PACE adopted a resolution (with 118 in favour; 62 against and 10 abstentions) entitled ‘Strengthening the decision-making process of the Parliamentary Assembly concerning credentials and voting’. The Assembly recalled that its Rules of Procedure provide that the terms of office of delegations take effect at the opening of the Ordinary Session, when their credentials are ratified (Rules 6.1 and 6.3). This means that credentials need to be submitted each year before the first part-session takes place in January. The Assembly decided to derogate from its Rules of Procedure, ‘[t]aking into consideration the Committee of Ministers’ decision in Helsinki, as well as ‘the exceptional context which led to it’. This one-off derogation comes down to the Assembly inviting parliaments which were not currently represented by a delegation (i.e. the Russian and Bosnian Herzegovinian parliaments) to present their credentials at this session.
Additionally, the Assembly decided to add a clarification to Rule 10 of its Rules of Procedure (the clarification is in italics):
10.1 Reports submitted to the Assembly […] shall contain a draft resolution proposing in its operative part one of the following three options:
10.1.a ratification of the credentials, or confirmation of ratification of the credentials;
10.1.b non-ratification of the credentials, or annulment of ratification of the credentials;
10.1.c ratification of the credentials, or confirmation of ratification of the credentials together with depriving or suspending the exercise of some of the rights of participation or representation of members of the delegation concerned in the activities of the Assembly and its bodies. The members’ rights to vote, to speak and to be represented in the Assembly and its bodies shall not be suspended or withdrawn in the context of a challenge to or reconsideration of credentials.
This clarification seems to imply, when looking at the list of sanctions contained in the 2014 Opinion, that currently only some participation rights can be withheld as an ‘internal sanction’ (i.e. the right of amendment, to table motions for resolution or recommendation, to table written declarations, to address questions to the Committee of Ministers and to request a debate under urgent procedure or a current affairs debate). This means that the possibilities for the Assembly to impose sanctions have decreased significantly.
On Tuesday 25 June 2019, the Russian delegation presented its credentials to the Assembly. On the same day, a Georgian representative challenged the credentials on substantial grounds and a Ukrainian representative challenged the credentials on procedural grounds. These challenges were not successful: on Wednesday afternoon, the Assembly ratified the Russian delegation’s credentials (116 in favour; 62 against; 15 abstentions), without imposing any sanctions, even though the situation in, for example, Crimea has not improved. As concluded by the Monitoring Committee: ‘there has been a manifest lack of progress with regard to the implementation by the Russian Federation of the demands made by the Assembly’ in its previous resolutions. In response, the members of the delegations of Estonia, Georgia, Latvia, Lithuania, Poland and Slovakia and Ukraine, recorded a statement noting that ‘The future of the Council of Europe is under threat as a whole because the Council of Europe is losing the trust of the people it stands to protect’ (watch it here).
On Wednesday and Thursday, the Assembly elected the new Council of Europe Secretary General (Marija Pejčinović Burić) and two new Strasbourg judges (in respect of Estonia and Germany). The scheduling of the elections and the debate about the credentials, ensured that the Russian delegation could take part in the votes, even if their credentials would not have been ratified, because Rule 10.3 provides that ‘[t]he members of a national delegation whose credentials are challenged may sit provisionally with the same rights as other Assembly members until the Assembly […] has reached a decision’.
Russia has won. The Assembly has not only lost this fight, but also part of its credibility by permitting Russia to return without attaching any ‘internal sanctions’. As can be inferred from the debate and the report of the Monitoring Committee, the Assembly was prepared to make this ‘concession’, not only because Russia threatened to leave the Council of Europe, which would be a major blow to the Russian population of about 145 million people (see also here), but also because non-payment of the Russian contribution to the Organisation’s budget would cause considerable difficulties for the Council of Europe. Therefore, one cannot help but wonder whether the Assembly would have taken a more principled stance, had the State in question been a State with a lower membership fee and, therefore, with less leverage (a third of the member States pays contributions that do not even cover the costs of a judge to the Court, an administrative officer and an assistant working full time). The only measure that the Assembly takes is to call on Russia to, among other things, fulfil the recommendations included in its previous resolutions, pay all fees due to the Organisation’s budget and co-operate with the MH 17 investigation. The Assembly’s Monitoring Committee will submit a report to the Assembly about Russia’s progress by April 2020. It is, however, unlikely that the Committee will be able to bring any hopeful news next year. It is telling that, as Sir Roger Gale (rapporteur of the Monitoring Committee) remarked during the debate, none of the six Russian representatives who took the floor, ‘touched upon any of [the] subjects’ mentioned in the resolution. Moreover, four members of the Russian delegation are allegedly subject to EU sanctions themselves. Therefore, Russia has done nothing to soften the blow of its victory.