Russian stalemate with Council of Europe threatens access to justice

Ruth Green

The ongoing conflict between Russia and Ukraine has had far-reaching geopolitical consequences, from international sanctions to Russia losing its coveted G8 membership. A lesser-known conflict has been brewing between the country and the Council of Europe, but the ramifications for access to justice and the rule of law could be equally damaging.

It began in 2014, following Russia’s annexation of Crimea, the Council of Europe’s Parliamentary Assembly (PACE) banned the Russian delegation from participating.

In protest at losing its voting rights, Russia has refused to pay its annual contributions to the Council of Europe since June 2017.

The Council is primarily financed by member states' contributions, which are typically paid in instalments throughout the year. This funding goes towards running PACE and the Council’s institutions, including the European Court of Human Rights (ECtHR). Russia is one of the Council’s major contributors, normally paying €33m a year – around 7% of the total budget. This has left the Council with a €50m shortfall.

According to the Council’s rules, if a member state fails to fulfil its financial obligations for two years it could face suspension. This gives Russia until June 2019 to have a change of heart. Galina Arapova, director of Russian NGO, Mass Media Defence Centre, in Voronezh, says this would be a ‘catastrophe’ for human rights in Russia. ‘With the lack of independence in the domestic judiciary we really need an effective mechanism to defend human rights in critical cases,’ says Arapova, who was awarded the 2016 IBA Human Rights Award for her tireless efforts towards protecting human rights and fundamental freedoms in Russia.

If Russia’s in the system, it has no meaning if it’s not implementing ECtHR judgments – this is a big systemic threat

Nils Muižnieks
Former Commissioner for Human Right, The Council of Europe

Nils Muižnieks, the Council’s former Commissioner for Human Rights, told Global Insight that Russia’s departure would be disastrous. ‘If it doesn’t pay, it gets kicked out and the European Convention on Human Rights [ECHR] no longer applies in Russia,’ he says. ‘The first question is whether Russia will stay in and, if so, on what terms. If it stays in, the question is will it more systematically refer ECtHR judgments to the Constitutional Court. If Russia’s in the system, it has no meaning if it’s not implementing ECtHR judgments – this is a big systemic threat.’

Russia introduced a law in 2015 that enabled the country’s Constitutional Court to overthrow decisions made by the ECtHR if they were deemed unconstitutional. This followed a 2014 ECtHR ruling ordering Russia to pay €1.9 billion to shareholders in defunct oil company Yukos. Arapova says this law and Russia’s stalemate with the Council are extremely perturbing: ‘Those signals from the Constitutional Court that the ECHR is not important anymore and that Russia is ready to leave the Council are really dangerous. Many judges have already stopped referring to the ECHR even though it’s obligatory.’

Meanwhile, the number of Russian citizens taking their cases to the ECtHR continues to rise. 370 new Russian cases were registered in 2017 – more than 2.5 times the number registered by any other country. The Court also issued 305 judgments on Russian cases last year. 293 of these identified at least one violation of the ECHR.

The impact would also be felt far beyond Russia. ‘If Russia was kicked out then it would also affect Ukrainian citizens because they won’t be able to sue Russia for the violation of their rights because Russia won’t be responsible before the ECtHR anymore,’ says Garapova. Meanwhile, Muižnieks voices concerns this could deprive many victims of their sole source of judicial remedy. ‘For people who are victims of disappearances, war crimes and so on, the ECtHR was important at least I think in giving them some kind of justice. If Russia is no longer in the system then why would a judge stick out his head and refer to case law of the ECtHR?’

European Court of Human Rights, Strasbourg

Ambassador Hans Corell is Co-Chair of the IBA Human Rights Institute and former Legal Counsel of the United Nations. He believes Russia’s departure would damage access to justice in the country. ‘It would be a step backwards,’ he says. ‘If you are logical and understand that the world is becoming more and more globalised, it’s clear that you have to have an overarching international legal system. All states must adjust to that. No democracy and no rule of law – that’s a recipe for disaster.’

Rewriting the rulebook

On 20 September, the Council’s Committee on Rules of Procedure drafted several amendments to PACE's rules for national delegations and voting conditions. A plenary debate and vote referred the proposals back to the committee for further consideration. ‘Now there is still a chance that this proposal will be reconsidered and hopefully adopted,’ says Arapova, but she warns there ‘is still a very high risk that Russian authorities will decide to leave the Council of Europe before it makes a decision.’

The Council’s Secretary General, Thorbjørn Jagland, has been at pains to retain Russia’s membership. His spokesperson told Global Insight: ‘We have always said that the annexation of Crimea is completely illegal and unacceptable. The Council of Europe, as the Convention states, is to create greater unity between its members. By getting rid of countries and effectively telling their citizens they no longer have access to the Court, we wouldn’t be providing the last resort for many citizens who make use of the courts in Turkey, Russia or many other countries.’

Money is a significant factor, too. Turkey reduced its contributions following PACE’s decision in 2017 to award the Václav Havel Human Rights Prize to Murat Arslan, a judge allegedly involved in orchestrating the 2016 attempted coup. Although this required the Council to make some adjustments to its 2019 budget, the Russia problem is more pressing. A spokesperson confirmed that if Russia continues to withhold its contributions next year then the Council will be forced to cut the budget for its programmes of work by roughly 10%.