Igor Kochetkov: Council of Europe — Russia: Time to say Goodbye

18 March 2022 

by Igor Kochetkov

Source: Moscow Helsinki Group [original source: журнал “Будущее” на платформе Republic]

Something happened that has not happened for a very long time: the positions of Russia and the Council of Europe coincided on at least one important issue. Moreover, Russia even agreed with the opinion of NATO countries. Bodies of the Council of Europe (which include representatives of NATO countries) expressed themselves clearly: ‘The Russian Federation can no longer be a member state of the organisation.’ On the other hand, the Ministry of Foreign Affairs of the Russian Federation was just as clear in its statement: ‘Let them have fun socialising with each other, without Russia.’

What you were before, so you remain

In terms of the accessibility of the European Court of Human Rights to Russians, the formal consequences of exclusion from the Council of Europe are as clear as day. From 16 March 2022, they will only be able to file applications for violations that were committed before that date. The Court must consider them, and the Russian Federation is supposed to implement the Court’s decisions. It is formal, though in fact, lawyers aren’t even sure that this will happen. For now, the ECtHR has ‘temporarily suspended’ work on Russian complaints.

Amnesty International has already ⁠called it ‘a tragedy for the victims of the Kremlin’s human rights abuses, ⁠because, in the words of ⁠Amnesty International Director for Eastern Europe and Central Asia, Marie Struthers, ‘some of the last safeguards against human rights abuses will be off limits to those who need them most in today’s Russia.’

Back in 2018, when the issue of expelling Russia first arose, Russian human rights activists also asked the Council of Europe to have pity on the Russian people, to whom the ECtHR ‘gives hope for justice’ and assured that ‘thousands of the Court’s decisions had a significant positive impact on Russian legislation and judicial practice’.

Three years later, the Parliamentary Assembly of the Council of Europe considered the ‘positive impact’ to not be ‘significant’ enough to consider Russia as a state truly committed to the European Convention for the Protection of Human Rights and Fundamental Freedoms (aka the European Convention on Human Rights, ECHR), for which the ECtHR monitors compliance. And the issue here is not in the quantitative ratio of implemented and unimplemented Strasbourg Court decisions, but in the fact that dozens (at least) of ignored decisions concern the meaning of the Convention and the essence of the obligations assumed by Russia when it joined the Council of Europe.

The ECtHR itself annually publishes lists of ‘key’ cases it has considered, ‘decisions of particular importance’. Of the cases against the Russian Federation, only 10 were classified as ‘particularly important’, that is to say, in which the Court found violations of the Convention during the period of 2017 to 2021. The ‘significance’ of the influence of the ECtHR on Russia’s legislation and judicial practices must be assessed based on the reaction of the authorities to the implementation of precisely these decisions.

I will list these issues:

  • disproportionate use of force by the state during the storming of a school seized by terrorists in Beslan; 
  • electoral fraud in St. Petersburg in 2011 and the refusal to do a recount;
  • arrests and prosecutions for organizing ‘unapproved’ peaceful assemblies;
  • depriving LGBT people of freedom of expression (‘gay propaganda’ law);
  • burial of the victim of a crime without notifying family members;
  • denial of just compensation to 1,500 Georgian citizens illegally detained and expelled from Russia in 2006;
  • prolonged detention of refugees in the airport transit zone;
  • absence of an effective investigation into the murder of Aleksandr Litvinenko;
  • crimes against civilians during war with Georgia in 2008;
  • mass violations of human rights in Crimea.

In almost all of these cases, we are talking about serious and systematic violations of the European Convention on Human Rights (ECHR), and in none of these cases did Russia react in a substantive manner.  That is, it neither amended its legislation, nor did it bring the perpetrators to justice.  Rather, it continued defiantly to apply norms that had been judged to be unlawful, such as the law on “gay propaganda.”  Such an attitude is commonly referred to as contempt of court.

Seen against the background of the release from accountability of those responsible for the mass deaths of hostages, the killings and “disappearances” of civilians during armed conflict, massive electoral fraud, etc., it is simply ludicrous to speak of the “significant positive impact” of the decisions of the Strasbourg Court on the norms of Russia’s criminal and criminal procedure legislation (even though there was some positive impact).  That is, at any rate, as regards the standards of the Council of Europe.  Yes, Russian lawyers may be delighted but, by European standards, enthusiasm is misplaced.

Governments that have signed the European Convention on Human Rights have declared their commitment to “fundamental freedoms that are the foundation of justice and peace in the world.”  The twenty-six years that this document was in force in Russia did not bring universal peace or justice either to Russia or to the rest of Europe.

As for the Russian people, who have now been stripped of access to the world’s best mechanism for the protection of human rights. It was not they, as the leaders of the Council of Europe correctly commented, who took this decision; rather, the decision was made by the Russian authorities as a result of their actions.  The tragedy of the victims of human rights violations in Russia is not so much that they can no longer appeal to the European Court of Human Rights (ECtHR), but rather that they are governed by the authorities who rule them.  Confusing one with the other means failing to understand the meaning of the word “tragedy” and using it in a meaningless way.

Lifting the moratorium on the death penalty: is that becoming increasingly likely?

“Just as long as the death penalty is not restored!” say those who understand that the ECtHR was not the guarantor of human rights in Russia.  Is lifting the moratorium on the death penalty really inevitable after Russia’s exclusion from the Council of Europe?  This issue has two angles: legal and political.

Much has already been said about the legal side of the matter:  the moratorium is not solely dependent on the Protocol No 6 of the ECHR.  Moreover, our country has not even ratified that, meaning that, strictly speaking, Russia has never been obliged by the Council of Europe not to carry out the death penalty.

“The death penalty shall be abolished.  No-one shall be condemned to such penalty or executed,” states Article 1 of Protocol No 6.  No reservation or derogation may be made from the provisions of the Protocol (Articles 3 and 4) other than in respect of acts committed in time of war or of imminent threat of war (Article 2).  Even so, the death penalty has not been abolished in Russia.  Death sentences are not declared or executed, but capital punishment remains in the Criminal Code.

Politically, the matter of the resumption of executions returned to the stage following Dmitry Medvedev’s remark that there was now a “good opportunity” to restore the death penalty for “the most dangerous criminals.”  Note that he made this statement on 26 February, following the decision by the Committee of Ministers to suspend Russia’s powers of representation in the bodies of the Council of Europe.  At that time, there was no talk on either side of Russia’s exclusion or voluntary resignation from the Council of Europe.

There have been threats to bring back the death penalty before, whenever tensions with the Council of Europe have arisen. It’s standard blackmail: ‘Keep hold of all of us – we’re out of our minds and can’t answer for what we do.’ In terms of tone, Medvedev’s retort is similar. These escapades don’t suggest any real actions that would change current practices.

A few months before Medvedev’s statement, when there was nothing foreshadowing a new crisis with the Council of Europe, Constitutional Court Chair Valery Zorkin hinted at the possibility of lifting the moratorium. He noted that despite the current and indefinite moratorium, nothing could be ruled out in the future, saying that the question of the death penalty would remain “as long as there are still premeditated murders.” Zorkin did more than just not call for the return of the death penalty; he also expressed his hope that it wouldn’t return. He didn’t tie this hope to membership in the Council of Europe, but rather to strengthening the rule of law in Russia.

But now that Russia is no longer in the Council of Europe, and fears of the imminent return of the death penalty — which is often confused with summary executions for anything and everything — have been exacerbated by progressive citizens, Russian officials are speaking differently. For example, some officials from the Liberal Democratic Party in the State Duma stated that a referendum on the matter was needed. There won’t be one, of course, if only because the authorities have other things to worry about in the current economic and political situation.

Andrei Klishas, member of the Federation Council, believes that “Russia will not reconsider its position on the impossibility of lifting the moratorium on the death penalty.” Tatyana Moskalkova, Human Rights Ombudsman of the Russian Federation, shares this opinion. Meanwhile, Valery Fadeyev, Chairman of the Presidential Council for Civil Society and Human Rights is not against introducing the death penalty for war criminals. The highest officials — the President, the Chair of the Constitutional Court, etc. — are not speaking on this matter at all.

The differing opinions and the silence of top officials, as well as the generally sluggish discussions at the government level, may indicate that no political decision has been made to cancel the moratorium and that it’s not likely to be on the agenda.

Positive events

Another fear associated with leaving the Council of Europe is that it would ostensibly put a definitive end to the movement for democracy and the rule of law within Russia. This was explicitly stated in the Memorandum, mentioned earlier, by Russian human rights activists three years ago:

Such a move would have irreversible consequences, because it would mean the end for Russian society’s struggle to establish the country an important part of Europe based on the common norms and values of democracy, the rule of law, and respect for human rights.

Such an apocalyptic forecast has not yet been confirmed, firstly, by the history of the Russian movement for democracy and human rights itself. It began long before Russia’s accession to the Council of Europe and long before anyone could have imagined such an entry. It also achieved its most important victories to date before joining this organisation – the fall of the communist regime and the opening up of the country to the wider world. If only for this reason, there is no reason to believe that this movement will stop just because today Russia is on the outside.

Our road to democracy and the rule of law has proven harder and longer, with bigger setbacks than those of our closest neighbours. There are historical reasons for this. However, this is our path, and even if it is destined to be interrupted, it will certainly not be because of exclusion from the Council of Europe.

Secondly, Russia is not the first country to leave the Council of Europe. We are actually the second,the first being Greece who withdrew from the organisation after the establishment of a military dictatorship in the country. Did this stop the democratic movement in Greece? Quite the opposite.

Former Greek Prime Minister George Papandreou said: My country, Greece, was ousted from the Council of Europe in the 1970s… This decision strengthened our fight for democracy and freedom.

The Council of Europe cannot bring states closer to the ideals of human rights, the rule of law or democracy. However, it was one of the tools of the supporters of these values in Russia. In this sense, the struggle for Russia’s membership in the organisation is not the country’s struggle, but ours. More precisely, it is a struggle for democracy and freedom. Those in Russia to whom the values ​​and principles of the Council of Europe are really important will now simply have to admit that in order for Russia to ever return to it, one must do everything possible within the country so that we ourselves comply with these values ​​and principles.

The question “Who suffers as a result of Russia’s expulsion – the country’s government or its people?” is an egocentric question. This decision is not a punishment or a reward. It is adopted to protect the European legal system and values. The European Convention for the Protection of Human Rights and Fundamental Freedoms, together with the Council of Europe itself, existed before Russia joined and will continue to exist regardless of Russia’s policy.

A drunkard is expelled from the society of teetotalers not in order to punish him, but to protect the remaining teetotalers and the rules of sobriety.

The Council of Europe must fight for its legitimacy, which is based on the will and ability of its members to cooperate. The organisation has no tools to enforce compliance. Therefore, the exclusion of those who cannot, or will not, cooperate is the only way to save the organisation.

When in 2018-2019 the question of Russia’s membership arose for the first time, analysts wondered: what will the Council of Europe sacrifice – its principles for the sake of money, or vice versa? Then they chose the first option, today – the second. And this is certainly positive news.

Translated by Tyler Langendorfer, Elizabeth Teague, Nina dePalma and James Lofthouse.

Leave a Reply