'They can destroy our houses. But they cannot destroy our values'

'They can destroy our houses. But they cannot destroy our values'

The response of the Council of Europe to the Russian invasion in Ukraine.

The Russian invasion in Ukraine has provoked strong reactions from a whole range of international organisations, including the European Union (EU). In its Versailles Declaration of 11 March, the European Council noted that Russia’s war of aggression constitutes 'a tectonic shift in European history'. In the days following the invasion the EU introduced sanctions against Russia, provided macro-financial assistance to Ukraine, made funds available to support the Ukrainian Armed Forces, and took measures to offer protection to large groups of refugees. An impressive display of unity in the face of the Russian aggression – no dissents this time from Poland (although it is less than a year ago since its minister of Justice thought it appropriate to compare the EU with the Soviet Union) or Hungary (which did not hesitate to dole out thousands of Hungarian passports to Ukrainian citizens at a time when Ukraine was struggling with separatists in the East).

But the focus of this contribution will be on the Council of Europe. For the EU, the question is how to respond to a terrible crisis situation that is unfolding on its doorstep; for the Council of Europe (CoE), the carnage is taking place in its very house. Ukraine joined the CoE in November 1995, followed by the Russian Federation in February 1996. Both countries ratified key conventions such as the European Convention on Human Rights (ECHR) and the Convention for the Prevention of Torture. While Russian aggression towards Ukraine goes back to 2014, the invasion represented a dramatic escalation of the situation. Widespread destruction and human suffering were, and still are, the immediate result. But the political and diplomatic relationship between Russia and the rest of the continent has been profoundly affected too. This culminated in the decision, on Wednesday 16 March, to expel the Russian Federation from the Council of Europe.

It is far too early to identify – let alone evaluate – the consequences of this 'tectonic shift'. But we can at least try to chart the most recent developments and the immediate reactions that followed. How does an international organisation that has been established to promote democracy, human rights and the rule of law respond when one Member State launches a war against another?

A quick, clear and concerted reaction

Despite repeated Russian denials that it intended to invade Ukraine, the tension was clearly rising in the days and weeks before the invasion took place. The situation received full attention from the Council of Europe leadership. When Russia recognised the so-called ‘people’s republics’ of Donetsk and Luhansk, on Monday 21 February, there was an immediate reaction from the Secretary General Marija Pejčinović Burić. She noted that this step represented a violation of international law and a unilateral breach of the Minsk agreements. She was joined by the President of the Parliamentary Assembly of the Council of Europe (PACE), Senator Tiny Kox from the Netherlands, and the Italian Minister for Foreign Affairs and International Cooperation, Luigi Di Maio, who is the current Chair of the Council of Europe's Committee of Ministers.

Their collective call on the Russian Federation to abstain from further aggravating the situation fell on deaf ears. Russia invaded Ukraine in the night of 23 to 24 February. Within hours, PACE President Kox issued a statement:

'This attack is in clear breach of the principles and values that the Council of Europe and its member states stand for. It requires a robust and consolidated response from our Organisation. I am therefore convening an urgent meeting of the Joint Committee between the Committee of Ministers and the Parliamentary Assembly of the Council of Europe to co-ordinate our concerted reaction to this unprecedented crisis in Europe'.

Indeed the main policy-making bodies of the Council of Europe closely coordinated their positions in the hours and days that followed. This stands in marked contrast to the internal divisions and hesitations with which various bodies reacted to the Russian annexation of Crimea in 2014 and the deterioration of human rights in Russia in general.

So, still on Thursday 24 February, the Committee of Ministers convened an extraordinary meeting and “condemned in the strongest terms the armed attack on Ukraine by the Russian Federation in violation of international law”. It decided to examine without delay, again in close consultation with the other CoE organs, the “measures to be taken in response to the serious violation by the Russian Federation of its statutory obligations as a Council of Europe member State”.

The next day, on Friday 25 February, the Committee of Ministers proceeded to suspend Russia’s rights of representation with immediate effect. In doing so, the Committee of Ministers acted on the basis of Article 8 of the Statute of the Council of Europe (1949) which reads as follows:

'Any member of the Council of Europe which has seriously violated Article 3 may be suspended from its right of representation and requested by the Committee of Ministers to withdraw under Article 7. If such member does not comply with this request, the Committee may decide that it has ceased to be a member of the Council from such date as the Committee may determine'.

It was for the first time in the history of the Council of Europe that a member was suspended. The organisation came close to such a decision in the late 1960s, when Greece was under great pressure following a military coup d’état and widespread human rights violations. But even before the Committee of Ministers could suspend Greece, that country announced its withdrawal from the Council of Europe on the basis of Article 7 of the Statute:

'Any member of the Council of Europe may withdraw by formally notifying the Secretary General of its intention to do so. Such withdrawal shall take effect at the end of the financial year in which it is notified […]'.

We will get back to the case of Greece below, but first we return to the position of Russia. The decision to suspend Russia was taken with 42 votes in favour, two votes against (Russia and Armenia); Turkey abstained; and Azerbaijan and Serbia were absent. In its decision the Committee of Ministers emphasised that “[s]uspension is not a final measure but a temporary one, leaving channels of communication open”. As a result the Russian Federation remained a member of the Council of Europe; it was and remained fully bound by the relevant Council of Europe conventions. At least for the time being.

Friday 25 February: the Convention still applies!

As the Committee of Ministers emphasised in its decision of 25 February, Russia was still fully bound by the ECHR. Unlike Ukraine (and Moldova), Russia did not derogate from any of its obligations under the Convention. It remained therefore under a legal obligation, as provided in Article 1 ECHR, to secure to everyone within its jurisdiction the rights and freedoms of the Convention as well as Protocols 1, 4 and 7 – which Russia signed and ratified. Any alleged violation of this obligation might give rise to fresh applications, both by individuals (Article 34 ECHR) and by other States Parties (Article 33 ECHR).

It was against this background that the Court adopted various interim measures. On 1 March the Court indicated to the Government of Russia:

'to refrain from military attacks against civilians and civilian objects, including residential premises, emergency vehicles and other specially protected civilian objects such as schools and hospitals, and to ensure immediately the safety of the medical establishments, personnel and emergency vehicles within the territory under attack or siege by Russian troops'.

On 4 March, the Court added that this interim measure should be considered to cover any request brought by persons falling into the above category of civilians who provide sufficient evidence showing that they face a serious and imminent risk of irreparable harm to their physical integrity and/or right to life.

One striking element in the interim measures is that the concern appeared to be limited to civilians. What about the fate of Ukrainian military personnel? From the perspective of international humanitarian law one could understand that distinctions might have to be made. But the ECHR applies to “everyone”, including servicemen who happen to become targets of lethal violence. True, the Court found in its recent judgment in Georgia v. Russia II, § 137 that the Convention did not apply during 'the active phase of hostilities'. That pronouncement, taken at face value, suggests that both civilians and combatants were left unprotected as long as Russia continued the hostilities. But if one were to reject such a conclusion as unacceptable (or indeed if the Court were to change track in future cases), then there would not seem to be any legal basis under the Convention to distinguish between civilians and military. The legal situation might be different if a State lawfully derogated under Article 15 ECHR from its obligations under Article 2 (the right to life). But, as we have seen, Russia did not take this step.

10-16 March: towards the expulsion of Russia

Back to the status of Russia as a member of the Council of Europe. It was widely expected that, following the humiliating vote of 25 February, Russia would withdraw from the Council of Europe. Despite some public statements to that effect and a debate in the Duma, it did not do so – at least not immediately.

And so the Committee of Ministers took the next step: on Thursday 10 March it decided to consult the Parliamentary Assembly “on potential further use of Article 8 of the Statute”. To this end PACE held an extraordinary plenary session on 14-15 March. At the end of this session PACE unanimously adopted Opinion 300 according to which the Russian Federation could no longer be a member State of the Organisation. With that the ball was again in the court of the Committee of Ministers.

But even before the Committee could take the next step and request the Russian Federation to withdraw from the Council of Europe, the Russian Government appeared to try and regain the initiative. It informed the Secretary General of its withdrawal from the Council of Europe and of its intention to denounce the European Convention on Human Rights.

That raised the legal question whether Russia had triggered Article 7 of the Statute (as in the case of Greece), or that the procedure of Article 8 was still being followed. But on Wednesday 16 March, perhaps in an attempt to end all uncertainty, the Committee of Ministers adopted Resolution (2022)2 in which it decided, “in the context of the procedure launched under Article 8 of the Statute” that “the Russian Federation ceases to be a member of the Council of Europe as from 16 March 2022”. The accompanying press release confirmed that this was not a matter of withdrawal: “The Russian Federation is excluded from the Council of Europe”.

Consequences of the Russian expulsion

What are the consequences now that Russia has "ceased to be a member of the Council of Europe”? The short answer is: a few things are clear, but many other matter are not; we find ourselves in mostly uncharted waters.

One consequence is plain. Russia is no longer be part of the pan-European system for the protection of human rights, democracy and the rule of law. However one evaluates Russian membership of the Council of Europe, it must be acknowledged that for over 25 years Russia was the only super-power to be subjected to supranational supervision in the field of human rights. This is not the case anymore. Russian membership has always been controversial, and while there was tangible progress, there were great clashes as well, ranging from atrocities in the Chechen wars to the treatment of political opponents inside and outside the country, and litigation over the wealth of oligarchs who had fallen into disfavour. It is too early for a measured assessment of a quarter of a century of Russian membership. But this period has come to an end, and Russia will not return for the foreseeable future. Russian citizens will no longer have access to the most sophisticated system of human rights protection in the world. The same is true for individuals in for instance Ukraine, Georgia and Moldova who claim to be victims of Russian human rights violations. An important channel for communication between Russia with the rest of Europe is closed. The Council of Europe will be forced to reconsider its position in the European architecture.

A mundane aspect of this reconsideration will be financial in nature. Clearly Russia will stop paying its share of the budget; it may not even pay its contribution for the current year. For the Council of Europe this means that its resources will be cut by 12.5% – Russia is currently one of five main contributors. It seems likely that following a Russian departure there will be somewhat fewer activities, hence less costs. Likewise, one might expect that Russian staff members on temporary contracts will lose their jobs. But under the current practice there will be no such consequences for CoE officials with Russian nationality if they have permanent positions. In short, a Russian departure will probably leave the CoE in a financially tight spot.

An issue of much more principled importance concerns the European Court of Human Rights. The Court has currently some 18,000 cases against Russia in its docket. Next to these individual applications there are several inter-State applications brought by Ukraine, as well as a case brought by the Netherlands in connection to the downing of airline MH-17. And, as was noted above, the Court is currently receiving new cases and it is likely to receive many more in the coming days. In the beginning of March the Court indicated that it intended to continue its examination of all these cases, although it already pointed to practical difficulties “owing to the disruption to the postal service”.

But now that Russia has left the Council of Europe, it is difficult to see how these cases can be dealt with. The procedure before the Court is adversarial in nature and based on equality of arms. What can the Court do if it no longer receives arguments from the Russian Government? Friendly settlements appear to be excluded. The Court might still continue the consideration of cases where it has received all arguments, but it seems unrealistic to expect the execution of judgments in cases were violations are found.

It remains to be seen how the Court will respond to this completely new situation. Quite understandably the Court decided, still on 16 March, to suspend the examination of all applications against the Russian Federation “pending its consideration of the legal consequences of this Resolution for the work of the Court”. Many options are available. One might be tempted to follow, somehow, the approach taken in its Burmych case in which the Court decided to strike over 12,000 applications out of its list of cases and transmit them to the Committee of Ministers in order for them to be dealt with in a separate framework. But the Burmych scenario was based on cooperation with the respondent government which had to adopt the necessary measures. In the case of a hypothetical ‘special framework’ for Russia there would be no counterpart for the Committee of Ministers at all. Moreover, it seems there will be no infrastructure to implement or enforce Court judgments in Russia at all.

In the short term there is a separate question that keeps lawyers busy. How will the expulsion of Russia affect its obligations under the ECHR? The Committee of Ministers did not address this question in its decision of 16 March. The relevant provision, Article 58 ECHR, is somewhat ambiguous, and for obvious reasons there is no practice to guide us. The starting point is clear: according to Article 58 § 1 the Convention would still apply for another for 6 months if Russia had withdrawn in accordance with Article 7 of the Statue. In that scenario Russia would have been liable for any violation committed during that period (that is: from its ratification of the ECHR to 16 March 2022 plus 6 months), as confirmed by Article 58 § 2. But Russia has been expelled on the basis of Article 8 of the Statute. In this respect Article 58 § 3 becomes relevant:

“Any High Contracting Party which shall cease to be a member of the Council of Europe shall cease to be a Party to this Convention under the same conditions”.

What does “the same conditions” mean? Does it refer to the conditions of the Russian expulsion? In that case the Convention is no longer applicable as of 16 March 2022. Or does § 3 refer back to §§ 1 and 2? In the latter case Russia would still be obliged to ensure the rights and freedoms of the Convention to everyone within its jurisdiction during the six month period of Art. 58 § 1. The discussion is technical, but highly relevant in light of the full-scale war that is still raging in Ukraine.

Whichever interpretation is followed, it is clear that many complaints will be submitted in the weeks, months and even years to come. Applicants may seek to exhaust domestic remedies first, and then there is the four-month term of Article 35 § 1 ECHR. There may be complaints about continuing violations – such as enforced disappearances – that started at a point in time that the Convention was still in force for Russia and continued thereafter. If the Court will deal with each of these cases, violations may be established many years from now. The Russian judge and the Russian registry lawyers will be badly needed!

This brings us to a final aspect: the position of the judge elected to the European Court of Human Rights in respect of the Russian Federation. As it happens, Judge Lobov took office only on 10 January 2022. Will he continue to be a member of the Court now that ‘his’ High Contracting Party has disappeared? On the one hand Article 20 ECHR states that the Court shall consist of “a number of judges equal to that of the High Contracting Parties”. If Russia leaves, then one judge must go as well, and it seems reasonable to assume that this should then be the Russian judge.

On the other hand the principle of irremovability of judges, which is a prominent element in the Court’s case-law on judicial independence, should be a key consideration as well – and judges are elected for a period of nine years. Under Article 23 § 3 no judge may be dismissed from office unless the other judges decide that he has ceased to fulfil the required conditions. But Article 21 (“Criteria for office”) only refers to the individual characteristics and conduct of the judges; it is silent, for understandable reasons, about the scenario in which a State leaves the Convention system.

In this uncertain context it is up to the judges – not the CoE Member States! – to find a just solution. But the precedent of Greece’s withdrawal from the Council of Europe might offer at least some guidance. In accordance with Article 7 of the Statute this withdrawal took effect as of 31 December 1970. Against that background the Court adopted a resolution in September 1970, finding that “the office” for which the Greek judge had been elected could not “continue to operate” beyond that date. Two months later the Committee of Ministers adopted a resolution in which it did not express any views on this particular matter. The Committee limited itself, as far as the Court was concerned, to the observation that “there will no longer be any grounds for requesting nominations from the Greek Government for the election of judges to the European Court”. At the time there was only one (!) case pending before the Court, and its judgment the Court noted that the Greek judge “who had attended the oral hearings, could not take part in the consideration of the present case after 31st December 1970, as the withdrawal of Greece from the Council of Europe became effective from that date”. It was only after Greece re-joined the Council of Europe, in 1974, that a new judge in respect of Greece was elected.

If the Court were to follow this precedent, then one might expect a decision concerning the Russian judge on a very short term. Yet it has to be acknowledged that the circumstances have changed since 1970. The principle of irremovability of judges has gained importance; the position of the Court is radically different and so is its case-load. But whatever the decision as regards the Russian judge will be, one would hope that the Council of Europe will manage to avoid the embarrassing situation that the EU found itself in when, in the days following Brexit, the British AG Eleanor Sharpston challenged the premature termination of her mandate.

These are just some of the questions that we will have to confront in the days and weeks ahead. And they are not the most pressing ones, in the face of the immense misery that the Russian aggression is inflicting on the people of Ukraine. Both for them, the immediate victims, and for European cooperation as a whole the future is highly unpredictable. What is important for all, is to keep a clear sight of what is truly essential and to protect this at all costs.

As a Ukrainian alumnus, who had managed to flee from his country on the eve of the Russian invasion, wrote to me: 'The Russians can destroy our houses. But they cannot destroy our values'.


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