Grigory Vaypan: Leaving the Council of Europe: What will come next?

10 March 2022

by Grigory Vaypan

Source: Moscow Helsinki Group [original source: “Адвокатская улица”]

The Russian Foreign Ministry has issued a statement saying that the Russian government intends to withdraw from the Council of Europe.  The Telegram channel of Advokatskaya Ulitsa (Lawyers’ Street) asked international lawyer Grigory Vaypan how this will affect the Russian justice system, and what Russian citizens can expect in future.

Is this already an actual withdrawal from the Council of Europe?

The Foreign Ministry’s statement is written in diplomatic, not legal language.  But Russia’s intentions are quite clear.  It seems likely that the Russian authorities expected that the Committee of Ministers of the Council of Europe might take the initiative to exclude Russia (such a possibility was indirectly implied in the recent statement by the leaders of the Council of Europe).  In fact, only an official announcement by the Secretary General of the Council of Europe about Russia’s withdrawal would have legal force, and it is not yet known whether such an announcement will be made.

– How will this affect the ability of Russian citizens to appeal to the European Court of Human Rights (ECtHR)?

Withdrawing from the Council of Europe also means withdrawing from the European Convention on Human Rights.  This means that Russians will no longer be able to appeal to the ECtHR.  According to the Charter of the Council of Europe, however, the decision to withdraw will enter into force only as of 1 January 2023.  And even after that date, the ECtHR will be able to hear cases regarding violations that allegedly took place before Russia’s withdrawal.

– But will Russia pay compensation in accordance with those decisions of the ECtHR that Russia has not yet implemented?

Legally, Russia is obliged to comply with all the decisions of the ECtHR.  This includes paying compensation for all violations of the Convention committed before 1 January 2023.  If a person is detained at a rally on 31 December 2022, he or she will be able to appeal to the ECtHR.  And if the Court hands down a decision in 2026, it will still have to be executed.  But whether Russia will actually do that, no one knows.  It looks as if the Russian authorities have nothing to lose.

Will Russia’s rejection of the European Convention mean that Russian citizens will lose the most important human rights?

Human rights are enshrined not only in the Convention, but also in the Russian Constitution, and in other international treaties that Russia has ratified.  But the question is:  who decides on the content of these rights, and what is that content?  The judgments of the ECtHR provided very important guidelines.  Without those guidelines, human rights in Russia will only be degraded.

Russia’s withdrawal from the Council of Europe will also mean the separation of the Russian legal system from the European legal order.  Essentially, this will amount to the destruction of the legal system that has existed in Russia since 1998, since it had largely developed on the basis of the European Convention and the legal decisions of the ECtHR.

– How will the inability of Russian citizens to apply to the ECtHR affect Russian justice?

The Russian justice system has not paid much attention to the ECtHR lately.  On a practical level, little is likely to change: more than 99% of convictions will remain in force, and protesters will continue to be fined and imprisoned.  The effect will be symbolic rather than practical:  there will no longer be a superior court of appeal that will be able, even years later, to overrule the Russian courts and to call white white and black black.

– Is it correct that only membership in the Council of Europe has kept Russia from restoring the death penalty?

No, the moratorium on the death penalty is based on the 1999 and 2009 decisions of the Russian Constitutional Court.  According to the literal meaning of those decisions, Russia may not restore the death penalty even if it leaves the Council of Europe.

Translated by Elizabeth Teague

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