By Lize R. Glas, Assistant Professor of European Law, Radboud University, the Netherlands
In a previous blog, I recalled how the Russian delegation managed to return to the Parliamentary Assembly of the Council of Europe (Assembly) without sanctions in June 2019. The return of these members meant the end of their refusal to submit their credentials in the years 2016-2019. That refusal, in turn, had been a reaction to the Assembly’s April 2014 decision to suspend the Russian members’ voting (and some other) rights because of, inter alia, Russia’s annexation of Crimea.
When ratifying the credentials of the Russian delegation in June 2019, the Assembly called on Russia to do a number of things, including fulfilling previous Assembly resolutions, returning 24 illegally captured sailors to Ukraine, paying all fees due to the Council of Europe, protecting LGBTQI+ people, and cooperating in the investigation of the downing of the MH17 flight and the murder of politician Boris Nemtsov. The delegation was requested to cooperate with the Assembly’s committees and engage in a meaningful dialogue. The Assembly expected that this dialogue would lead to concrete results, and invited its Monitoring Committee to report on the honouring of obligations by Russia no later than April 2020.
During the 2021 winter plenary session of the Assembly, which took place from 25 to 28 January, the credentials of the Russian delegation were challenged (again). In this blog, I will explain how the relation between the Assembly and Russia has developed since June 2019, discuss the 2021 winter plenary session, and comment on what these events tell us about the Assembly’s approach towards Russia and the steps that its representatives are prepared to take against that state and its delegation.
What has happened in the meantime?
During the Assembly’s winter plenary session in January 2020, the credentials of the Russian delegation were challenged on substantive grounds. The substantive grounds referred to a broad and far-reaching package of constitutional amendments proposed by president Putin earlier that month and the negative impact these amendments could have on Russia’s compliance with certain Assembly resolutions. These amendments, inter alia, help to secure ‘the prevalence of the Russian Constitution over international treaties and decisions of international bodies’. The Venice Commission (the Council of Europe’s advisory body on constitutional matters) adopted an opinion on two of these amendments, in which it expressed its concern that these would enlarge the possibilities for the Russian Constitutional Court to conclude that decisions of bodies like the European Court of Human Rights that collide with the country’s Constitution cannot be executed. Assembly rapporteur Kox echoed this concern. The constitutional amendment, nevertheless, came into force on 4 July 2020.
In January 2020, with 96 votes in favour, 44 against and 7 abstentions, the Assembly ratified the credentials of the Russian delegation despite the aforementioned concerns. In its resolution, the Assembly noted that Russia had addressed some of the recommendations made in its resolution of June 2019. Thus, Russia had returned the 24 sailors, had made some progress with regard to the implementation of the Minsk Agreements, and had participated in the mutual release of detainees. Additionally, Russia had paid all due contributions to the Council of Europe (but not the interest of 8.8 million euros), and the delegation had cooperated fully with the Monitoring Committee. The Assembly did not list the recommendations that Russia had not implemented. Instead, it indicated that it would await the report of the Monitoring Committee before making an assessment of the situation in Russia.
The Monitoring Committee organised a number of hearings in which the Russian delegation took part. A monitoring visit to Russia was scheduled for March 2020, but was cancelled because of the pandemic and has still not taken place. Stating that ‘direct political dialogue is a key element of the monitoring procedure and constitutes a necessary condition for the preparation of a report’, the Monitoring Committee has not yet adopted its report, although the two co-rapporteurs have continued their work.
The winter plenary session of 2021
Because of the pandemic, the three other plenary sessions of 2020 were cancelled, but in January 2021, the winter plenary session took place in a hybrid form—partly online and partly in Strasbourg. Like around the same time last year, the Russian delegation’s credentials were challenged on substantive grounds. The substantive grounds referred to:
serious violations of the basic principles of the Council of Europe enshrined in Article 3 and the Preamble of its Statute …, the deterioration of the situation in the Russian Federation with regard to the rule of law and democracy, the respect for basic freedoms and human rights, in particular freedom of expression, assembly and association, the arrest and ongoing detention of Mr Navalny and, more generally the compliance of the Russian Federation with its commitments and obligations in the Council of Europe and with [Assembly] recommendations.
In his report, drawn up based on the challenge of the delegation’s credentials, rapporteur Schennach was rather critical of the aforementioned package of constitutional amendments. He was also critical of how the amendments were adopted, namely ‘with unprecedented speed without any meaningful public debate or consultations’. Some other not so promising developments that the rapporteur described were the poisoning and detention of prominent opposition figure Alexei Navalny (see also here), the crackdown on civil society and on political opponents, and Russia’s continued refusal to reimburse the unpaid interest. Moreover, ‘no progress ha[d] been made with regard to implementing the demands of the international community with regard to Eastern Ukraine, Crimea and the occupied Georgian regions of South Ossetia and Abkhazia’. Although the report was ‘not optimistic’, the rapporteur proposed that the Assembly ratify the credentials, because it would not be ‘appropriate’ to abandon, at this point, the path of relaunching dialogue that the Assembly had chosen since June 2019. The rapporteur added, however, that the Assembly needed to determine at some point whether dialogue would bring any progress.
In a video, released by the Assembly, rapporteur Schennach additionally explained that there was no other possibility for the Assembly but to walk the ‘stony way’ of dialogue. He also indicated that many Russian human rights defenders had signed a letter appealing to the Assembly to ratify the credentials of the Russian delegation. Interestingly, he noted that there exist two ‘ultimate red lines’, namely: refusal, by the Russian authorities, to allow Assembly rapporteurs entry into Russia, and the non-execution of the judgments of the Strasbourg Court.
Russia has crossed the first red line at least once, when failing to cooperate with rapporteur Zingeris, who was assigned as rapporteur for the investigation into the murder of opposition politician Boris Nemtsov. The rapporteur made multiple requests to the Russian authorities to conduct a fact-finding visit to Russia, but did not receive a response. It also seems to me that Russia has already crossed the second red line as well, considering for example that 89 percent of the leading cases from the last ten year are still awaiting implementation. Consider also Russia’s persistent refusal to pay just satisfaction in the cases brought by Yukos and Georgia (see also here).
During the debate about the ratification of the credentials of the Russian delegation, certain Estonian, Georgian, Latvian, Lithuanian and Ukrainian representatives pointed out that the situation in Russia had deteriorated and that it was impossible to engage in a dialogue with Russia. The statements of the Russian representatives appear to confirm that the Russians would not accept any sanctions. Representative Tolstoi threatened that, if his delegation’s credentials were not ratified, ‘all members of our delegation will be forced to follow the example of 2014 to leave this hall and to stop the dialogue’. Other representatives (Bashkin and Kislyak) complained of ‘double standards’ allegedly applied to Russia, and insisted that facts about the situation in Russia were ‘simply invented’. According to representative Slutskiy, opposition leader Navalny was not poisoned by the Russian authorities, but ‘saved’ in Russia. The non-Russian representatives who supported ratifying the delegation’s credentials mainly emphasised the importance of engaging in a dialogue with the Russian delegation.
In the resolution (adopted with 107 votes in favour, 36 against and 24 abstentions), the Assembly ‘deplore[d] a number of exacerbating negative tendencies with regard to democracy, the rule of law and human rights in the Russian Federation which are having an impact on the fulfilment of commitments and obligations of the Russian Federation’. Additionally, the Assembly expressed concern about a number of constitutional amendments which not only contradict Russia’s Convention obligations, but also make ‘a solution for the Crimea issue in line with international law … virtually impossible’.
The Assembly ratified the credentials nevertheless and highlighted ‘its continuous commitment to dialogue as a means of reaching lasting solutions’. At the same time, it called on Russia to abide by a number of recommendations made previously and to address the concerns expressed by the Venice Commission in the opinion mentioned above. Additionally, the Assembly requested Russia to guarantee, in particular, freedom of expression, assembly and association, to release Navalny and others and to abstain from adopting new laws putting further restrictions on the activities of civil society, journalists and opposition politicians.
What do the events at the Assembly’s 2021 winter plenary session tell us about the Assembly’s approach towards Russia and the steps it is prepared to take?
It is striking that the procedural possibility of ratifying the credentials whilst also depriving the Russian delegation of some of its rights of participation or representation was not mentioned at all during the debate. Although in June 2019, the Assembly significantly reduced the number of internal sanctions that it can impose, some internal sanctions are still available (see here). Rapporteur Schennach did not mention this possibility in his report either, although he did say in an interview from 2016 that, when the Assembly imposed internal sanctions in 2014, he had been in favour of ‘partial sanctions’, ‘starting with banning the Russians from election observations, where they had a strong interest, or banning them from writing reports’.
For now at least, the Assembly seems to have ‘forgotten’ about the possibility to ratify credentials and impose internal sanctions, making the relevant Rule (Rule 10.1.c. of the Assembly’s Rules of Procedure) something of a dead letter. The possibility that the Russian delegation might have again suspended its participation in the Assembly’s work if such internal sanctions had been imposed probably played a part in this. Moreover, at present it seems unlikely that the Assembly will revoke its decision to limit the number of sanctions it can take.
Only two days before the Assembly approved the credentials of the Russian delegation, it adopted a resolution to modify its Rules of Procedure so as to include a set of rules about the so-called ‘complementary joint procedure between the Committee of Ministers and the Assembly in response to a serious violation by a member State of its statutory obligations’ (procedure). This resolution was a follow-up up to a resolution adopted in January 2020, when the Assembly decided to adopt this procedure (see this blog). The primary aim of the procedure ‘is to bring a member State, through constructive dialogue and co-operation, into compliance with the obligations and principles of the Organisation, and avoid imposing sanctions’ (see here). In view of this aim, the importance that the Assembly attaches to dialogue with Russia and the very worrying situation in the country, the question now arises whether the Assembly will initiate this complementary procedure in the case of Russia. If the Assembly were to take a vote on this matter at all, this would probably only happen once the report of the Monitoring Committee has been finalised. This, however, may take quite some time, because the co-rapporteurs want to first visit Russia and the pandemic is certainly not yet over. In addition to that, the Assembly may wait for rapporteur Ævarsdóttir to present her report about political prisoners in Russia.
Some delegates are perhaps more enthusiastic about the procedure as such than about the prospect of actually using it. Representative Nick said during the debate that the procedure was ‘probably most effective if you never have to get it out’. Representative Howell disagreed, stating that he ‘was struck by something one of the speakers earlier said that we don’t actually want [to] use this. Actually, we do want to use this’. Depending on how many representatives share Mr Nick’s point of view, it may become difficult to initiate the procedure, because a motion for recommendation to initiate the procedure must be signed by at least one fifth of the Assembly representatives and substitutes, belonging to at least three political groups and fifteen national delegations. Moreover, for the adoption of a draft recommendation on the initiation of the procedure, a majority of two-thirds of the votes cast and a number of votes in favour equivalent to at least one-third of the total number of members of the Assembly authorised to vote is required.
Even if the Assembly overcomes these hurdles, the ‘frequent’ ‘institutional rivalry’ between the Assembly and the Committee of Ministers (CM) is likely to be another impediment to the effective functioning of the procedure. The process leading to the adoption of the procedure by the CM and the Assembly is a case in point. The result thereof may lead one to ‘question the viability and feasibility’ of the procedure, as rapporteur Leigh noted in his report on the rules required for the procedure. The rapporteur explained that the CM decision adopting the procedure differs ‘significantly’ from the draft decision to which the Assembly had agreed. Consequently, the CM’s and Assembly’s points of departure ‘diverge both in their title (the Ministers’ Deputies did not use the term “joint”), in their basic principles, and in their operative provisions, as well as in the timetable’. It is particularly painful to read that the CM decided to incorporate in its list of basic principles an amendment tabled by Russia, which the Assembly’s Committee on Political Affairs and Democracy had rejected ‘by an overwhelming majority’.
Underlying requirements are the conformity with existing roles and mandates of the two statutory organs, as well as the Secretary General, as enshrined in the Statute of the Council of Europe, and the entitlement of all member States to participate on an equal basis in the two statutory organs, as long as Articles 7, 8 or 9 of the Statute have not been applied.
The italicised part can also be found in the CM’s Helsinki decision of May 2019, which led to the return of the Russian delegation to the Assembly in 2019 and the Assembly’s decision to reduce its list of internal sanctions. By accepting this amendment, the CM sought to ‘belittle the Assembly’s prerogatives’, according to the rapporteur. If the result of ‘very many joint meetings and the process of mutual consultation […] over many months’ is that the Assembly and the CM adopt two procedures that look alike but are not one and the same procedure, I doubt whether they will be able to cooperate effectively once the procedure has been initiated. I also have this doubt because the Assembly has always proved that it was prepared to be ‘much stricter’ on states than the CM.
To conclude, the Assembly seems to put dialogue with Russia above everything else, or at least above taking a more principled stance by imposing internal sanctions. Taking the latter step would probably mean that Russia ends the dialogue unilaterally by no longer participating in any Assembly activities (and perhaps stop paying its contribution to the Council of Europe, too). In light of this reality, the majority of the Assembly members seems to have concluded that more can be achieved by making sure that the delegation does not leave the Assembly again than by imposing internal sanctions or by not ratifying the delegation’s credentials. This reminds me of the idea behind the decision to allow Russia to join the Council of Europe in the first place: even though Russia did not fulfil the conditions for membership, the hope was that accession ‘might in itself create conditions in conformity with Council of Europe standards’. To put it briefly: better in than out.
In this context, starting the joint complementary procedure against Russia (which would be the first state against which the procedure would be used) is hardly feasible. Still, Russia has crossed many red lines, ranging from invading other Council of Europe member states to refusing to cooperate with Assembly rapporteurs and everything in between (see for example here). This makes one wonder, as rapporteur Schennach did, whether dialogue will bring about any progress at all in Russia and in the occupied territories under its control—and, if it does not, what the continued but fruitless dialogue will do to the Assembly’s credibility. I am very curious to read the Monitoring Committee’s reflections on these points.
 Petra Roter, ‘Russia in the Council of Europe’, in Lauri Mälksoo and Wolfgang Benedek (eds), Russia and the European Court of Human Rights. The Strasbourg Effect, Cambridge: CUP 2018, at 50.
 Which would require a motion supported by twenty or more representatives, a report of the Committee on Rules of Procedure and a simple majority vote. See Rule 41.1.c and Rule 74.1 of the Assembly’s Rules of Procedure. See also Andrew Drzemczewski, ‘The (Non-) Participation of Russian Parliamentarians in the Parliamentary Assembly of the Council of Europe: An Overview of Recent Developments’ (2020) 20 Revista do IBDH 49, at footnote 42.
 Andrew Drzemczewski, supra note 2, at 50 and footnote 24.
 Philip Leach, ‘The Parliamentary Assembly of the Council of Europe’ in Stefanie Schmahl and Marten Breuer (eds), The Council of Europe. Its Law & Politics, Oxford: OUP 2017, at 192.