Dousing the fire in the democratic forest: Lessons for the Council of Europe from Russia 

Could the Council of Europe (CoE) have done more to confront the belligerence, backsliding and bad faith that culminated in Russia’s expulsion? Judge Pavli’s remarkable separate opinion in the case of Novaya Gazeta has ignited debate about this question in respect of the European Court of Human Rights, asking whether, in adjudicating case-by-case and often too slowly, it failed to sound the alarm about the “fire … raging in the … democratic forest”. Judge Pavli urged greater use of the Court’s existing tools (such as Article 46 indications, interim measures, the application of Article 18 to expose misuse of power, pilot judgments, and prioritisation of serious or urgent cases and “impact” cases that have repercussions for the European Convention system as a whole). Not only that, but he envisaged new “stock-taking” tools that would allow the Court to expose the “incremental but systematic shrinking of democratic spaces”, wherever it occurs.

Such ambitious and creative thinking is welcome (and the judgment in Ukraine and the Netherlands v Russia exemplifies it). Yet, the (in)actions of the Court in respect of Russia’s democratic decay are not the principal focus of Bates, Dzehtsiarou and Forde in their excellent book on Russia’s troubled membership of the CoE. Rather, the authors shine a light on the statutory organs of the CoE, the Committee of Ministers (CM), through which member states exercise collective responsibility, and the Parliamentary Assembly (PACE). Could they have done more to prevent, or at least respond decisively, to Russia’s flagrant transgressions? For the CM, the authors’ answer is a resounding “yes”, its failure to exercise political leadership laid bare in every chapter. In respect of PACE, the answer is more equivocal.

Inspired by the book, this blog reflects on the role and interactions of the CM and PACE in the dismal quarter century of Russian membership and lessons that might be drawn for confronting the continuing threat of democratic backsliding.

The Committee of Ministers: “misplaced complacency”

The book’s focus on CoE actors other than the Court (including the Secretary General of the CoE, the Commissioner for Human Rights and the Venice Commission) is entirely justified. Academic commentary on the Court is plentiful, whereas the “holistic CoE regime” is less well understood.

The CM in particular was guilty of looking the other way as democracy unravelled in Russia. From 2010 onwards, under successive CoE chairmanships, the Interlaken process focused principally on reform of the Court, and was preoccupied not only by its mountainous caseload but also, especially at Brighton (2012) and Copenhagen (2018), by domestic discontent with the Court, spurious questions about its legitimacy, and efforts to disempower it. As Glas ventures, the impact of the Interlaken process was at best incremental rather than transformative.

Meanwhile, the Interlaken decade saw the grievous abuses of the second Chechen war, the Georgia-Russia conflict, the illegal annexation of Crimea, and the shooting down of a Malaysian Airlines flight by Russian-backed forces, in addition to the Russian authorities’ strangulation of civil society, persecution of dissidents and minorities, and deplorable record in implementing judgments of the Court. Member states acting through the CM had the power and responsibility to respond and repeatedly failed to do so.

Among numerous instances, the book provides a damning account of the CoE’s capitulation to Russia in 2019, following its boycott of PACE and suspension of payments to the CoE. The appeasement of Russia by the (then) Secretary General Thorbjørn Jagland is also recalled, albeit with acknowledgement of the limited power of his office vis-à-vis the “near exclusive authority” of the CM.

The book explores the “better in than out” argument as a possible principled justification for the collective inaction before 2022—better, that is, for the people of Russia to stay under the CoE’s protective umbrella and for the CoE to avoid the seismic shock of “Ruxit”. Yet, the inescapable conclusion is that, aside from the moment of expulsion in 2022, member states repeatedly failed to “calibrate responses of maximum utility, proportionate to observable transgressions …, in a timely manner” in accordance with the CoE Statute.

The authors give the final word to the former President of the Court, Judge Siofra O’Leary, who laments with diplomatic understatement that “a misplaced complacency may have installed itself in certain States over the last decades”.

The Parliamentary Assembly: an uneven record

By contrast, the book reveals the Parliamentary Assembly to have been a more diligent and proactive guardian of CoE values, in keeping with its historic role of cajoling an unwilling CM on matters such as the abolition of the death penalty, the CIA’s programme of ‘extraordinary renditions’ of terrorism suspects and the right to a healthy environment. Again and again, PACE called out Russia’s actions and—in vain—implored the CM or the Secretary General to respond; for example, over abuses in Chechnya and the Georgia-Russia conflict.

Yet, the book also exposes the Assembly’s lack of meaningful power to bring about the change its resolutions and monitoring reports demanded. In the crucial years after the annexation of Crimea, PACE was enfeebled by the revelation that current and former members, including its President Pedro Agramunt, had been bribed by the Azerbaijani government. The sense that PACE had abdicated its previous role as defender of the CoE’s values was heightened when the Assembly, like the CM, caved in to Russia’s financial blackmail in 2019 and, as Drzemczewski ventures, “amputated itself” by giving up its power to autonomously suspend a delegation’s right to vote on the adoption of resolutions and recommendations in the Assembly. In other contexts, too, PACE dragged its heels in responding to backsliding; it was not until 2022 that the Assembly voted to bring Orban’s Hungary under its full monitoring procedure, a decade after this was first proposed. 

The Assembly’s uneven record is unsurprising when we recall that it (like the CM) is not a monolithic entity but a political, often polarised, institution. Research I conducted with Anne Heinisch (formerly Speck) on debates and voting patterns in PACE reveals it to be a forum in which alliances between political groups and / or states go to great lengths to instrumentalise its procedures, both behind the scenes and on the floor of the Assembly. Starkly divergent views of the future of Europe emerge, with left leaning and liberal groups invoking the “dark vision of fascism” and conservative factions—often fronted by UK Conservative parliamentarians—arguing for the accommodation of “post-liberal democracies” (such as Hungary) and political strongmen (such as Turkey’s Erdoğan).

Collective responsibility

What can we learn from the CoE’s trepidatious record in handling Russia? One overarching lesson is the need for CoE bodies—above all the CM—to act with unity of purpose when faced with such contemptuous bad faith and egregious breaches of its values. The book documents numerous examples of where the CM stymied the efforts of other CoE bodies in respect of Russia, such as when, in the context of the second Chechen war, it rebuffed the initiative by Secretary General Walter Schwimmer to invoke Article 52 of the Convention (a mechanism to ensure that states comply with its provisions) and ignored PACE resolutions calling for the CM to consider suspending Russia under Article 8 of the CoE Statute. Likewise, the CM remained silent in the face of Russia’s disengagement with Commissioner for Human Rights Nils Muižnieks and the Committee for the Prevention of Torture (CPT) after the annexation of Crimea 2014 and ignored PACE’s demand for CoE human rights monitors to have unfettered access to conflict zones controlled by Russian forces.

The CoE’s historic achievements have invariably resulted from its constituent parts acting in concert. Take, for example, the above-mentioned success at exposing CIA-run secret prisons on European soil: this was first uncovered by PACE (through the courageous investigations of the late Swiss Senator, Dick Marty), then taken up by the Secretary General, the Venice Commission, the Court, the Commissioner and the CPT, with the CM following in their wake.

Such examples vindicate Forde’s reconceptualisation of the “CoE system” from one “traditionally seen as a hierarchy of autonomous institutions towards an understanding of a matrix of mutually reinforcing judicial and non-judicial components for which Member States have collective responsibility”. Scholarship on the (non)implementation of European Court judgments broadens this ecosystem further, exploring the multiplicity of national and supranational actors whose interactions may either secure or obstruct enforcement.

The collective responsibility of member states, affirmed at Brussels in 2015, has been in short supply since. The Reykjavik Declaration of 2023, as Forde argues, focused high-level political attention on the need to “salvage, revitalise and reinforce” Europe’s human rights architecture, but more in spirit than in substance. Meanwhile, Secretary General Alain Berset has warned member states against “politicising” the Court in the recent challenge to its case law on migration, which risks scapegoating Judges in Strasbourg for a problem of infinitely more complex origin.

Resources

A key aspect of this collective responsibility is to ensure that the CoE is adequately resourced after a period of decline since 2010 with the budgetary policy of zero nominal growth (no adjustment for inflation) and, since 2020, zero real growth (growth only to cover inflation). The High Level Reflection Group (HLRG) that preceded Reykjavík warned states that the CoE’s resources were “unquestionably insufficient” to fulfil its mandate, amounting to less than half a euro per year per person protected by the system.

The Draft Programme and Budget 2024-2027 and the increase in states’ obligatory and voluntary contributions in 2024 are steps in the right direction. Calls persist for the Court to have a separate budget, rather than one set by the CM, a move long been demanded by PACE both to protect judicial independence and insulate the Court from financial crises.

Less well publicised is the HLRG’s call for increased resources for the crucial work of the Department for the Execution of Judgments (DEJ) within the CM. This would indeed be justified: research published in 2023 suggested that each of the DEJ’s permanent lawyers supervises on average 220 cases, including more than 50 complex, leading cases. Çali and Koch underscore the importance of a strong and well-resourced secretariat to constrain and direct the CM’s peer review mechanism (the “foxes guarding the foxes”), and to steer domestic implementation of the Court’s judgments.

Tools and sanctions

The book concludes with a call for the CoE to review Russia’s membership to “examine the actions of statutory, non-statutory and other CoE actors and infer key, actionable learnings”. A pressing question will be whether the CM should have triggered Article 8 of the Statute before 2022, after the annexation of Crimea, if not earlier in relation to Chechnya, Georgia, or other systemic failings. The authors note that Russia’s aggression against Ukraine sets an “exceptionally high threshold” for the triggering of suspension or expulsion proceedings, making it of limited precedential value.   

How, for example, should the CM respond to Azerbaijan’s persistent violations of CoE standards, domestically and in Nagorno Karabakh? Its PACE delegation was sanctioned by and then boycotted the Assembly, leading President Aliyev to declare judgments of the Court invalid, in turn exacerbating its already appalling record of implementation. Yet again, PACE has acted (at least to a limited extent) but the CM has not, and realpolitik has won the day.

There is no sign of use of the complementary joint procedure (which may be launched by the CM, PACE or the Secretary General in the event of a serious breach of statutory obligations), whether for fear of precipitating Azerbaijan’s exit, or of failing to achieve support from the required two-thirds of states. An investigation under Article 52 is not on the cards and no country has stepped forward to launch an interstate case, which, as the book argues, should surely be considered as a means of policing ill-behaved member states.

The infringement procedure under Article 46(4) of the Convention is another tool in the CM’s armoury to respond to refusal to implement judgments—and failure to implement an Article 46(4) judgment could in turn trigger the complementary joint procedure. But this rusting weapon has conspicuously failed over three years to achieve the release of Osman Kavala in Turkey, another state that appears to revel in displaying bad faith towards the CoE, knowing that its status as a grand payeur and geopolitical significance shield it from the consequences.

Reform proposals

Lest this appear as a counsel of despair, there are numerous credible proposals to achieve the exercise of collective responsibility called for in Reykjavik; for example, to give teeth to infringement proceedings, and introduce graduated sanctions and high-profile public hearings to achieve accountability for non-compliance, as well as to coordinate more effectively with the European Union on rule of law backsliding.

As the CoE moves centre stage in efforts to achieve accountability for Russia’s aggression in Ukraine, this book, through its meticulous chronicling of 26 years of failure, reminds us above all of the need for states to act together in good faith and refrain from externalising their domestic political travails onto the Court.

Judge Pavli had the courage to hold up a mirror to the Court’s failings in respect of Russia. As the fires continue to rage in the democratic forest, the CM—the governments of Europe—must do the same.