12 March 2021
by Karinna Moskalenko, attorney, international lawyer, member of the Moscow Helsinki Group
February 28 this year marks a quarter of a century since Russia became a full member of the Council of Europe.
But the anniversary passed quietly, without any grand celebrations… and with whom, indeed, to celebrate such an anniversary? With our neighbours on the continent? – those relationships have not worked out. With the citizens of the country-hero of the day? That would be somewhat awkward; they have after all just accused Europe of hostility and subversion…
We limited ourselves to a round table at the Federation Council, called “25 years of Russian membership in the Council of Europe: cooperation or confrontation.”
“We are ready to work in the Council of Europe, but on the basis of its charter,” said Russian Deputy Foreign Minister Alexander Grushko, speaking at the round table at the Federation Council.
What does that mean?
The fresh and innovative idea of the Russian authorities of working within the Council of Europe “only according to the charter” (which in their view means without the Convention, and therefore without the European Court of Human Rights [ECtHR]) is devoid of legal meaning, since all members states are obliged not only to accept the Convention, but also the jurisdiction of the ECtHR. In 1998, Russia not only ratified the Convention, but also separately what was then Article 25 of the Convention (mandatory jurisdiction of the Court) – at that time, states were required to separately recognise the jurisdiction of the Court and could postpone this recognition. Later, states could join the Council of Europe only with the full recognition of the Convention – including the current Article 34 of the Convention on the unhindered access of citizens to the European Court.
We must remember that the jurisdiction of the ECtHR for Russia came after the then-Minister of Foreign Affairs, Yevgeny Primakov, having arrived in Strasbourg on May 5, 1998, lodged the instruments of ratification in the Council of Europe.
Will Russia denounce (withdraw) the instruments of ratification and these international agreements? Will Russia refuse to fulfil its obligations? This is a matter of state dignity, of the prestige of the state, its legal predictability and reliability as a partner of all the other 46 countries of the Council of Europe.
Attempts to legally substantiate the non-binding nature of the execution of the decisions of the European Court were made earlier – by initiating, through the deputies of the State Duma, an appeal to the Constitutional Court regarding the constitutionality of the Federal Law of March 30, 1998 N 54-FZ “On the Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and Protocols Relating to It.”
These attempts failed after the adoption of the Resolution of the Constitutional Court of the Russian Federation of 14 July 2015 on the recognition of Article 1 of the Federal Law of March 30, 1998 N 54-FZ “On the Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols Relating to It” as not contradicting the Constitution.
Thanks to this decision of the Constitutional Court of Russia, our citizens, happily, retained the right to use the mechanism of the European Court. Over the years, thousands of Russians have been able to find protection via the ECtHR in cases of inhuman treatment, violation of the right to a fair trial, interference with private life, and confiscation of property rights, and have been able to protect their rights and freedoms.
“Without Russia, the organization will lose its European quality, which means it will lose the point of its existence,” added Grushko.
But this is not the case. This is what the current officials want to think, but the Council of Europe existed for decades before Russia, for several years the member states pondered whether to admit Russia to the Council of Europe, and in 1996 they accepted it, after the Russian authorities fulfilled a number of conditions. However, if after 25 years of membership in the largest European organisation, Russia now wants to withdraw from it, then to declare that the organisation “will lose the point of its existence” is presumptuous, to put it mildly. And it’s not worth hoping that someone else will follow Russia’s example. It will simply be the Council of Europe without Russia. Not 47, but 46 High Contracting Parties. Without the one that turns out to be neither high nor contracting.
Translated by Anna Bowles