During the forthcoming October part-session of the Parliamentary Assembly of the Council of Europe (PACE), it will vote on amending its rules of procedure. Normally such technical changes do not attract much public interest but this vote certainly will. Due to inappropriate pressure, considered by many as blackmail, the Russian (parliamentary) authorities have suggested that the Assembly’s rules ought not to permit the exclusion of national delegations from the Assembly. In other words, the Assembly should take away from itself its ultimate sanction, namely excluding a parliamentary delegation of the state that refuses to comply with Council of Europe’s fundamental values: human rights, the rule of law and pluralistic democracy. This can only be done once attempts to admonish or reprimand a state which breaches the rules of the democratic club have failed.
That said, the Committee of Ministers, the other statutory body of the Council of Europe, can suspend or expel a state which seriously violates the club’s rules. Expulsion is however a politically complex exercise. Article 8 of the Organisation’s Statute specifies that if a member state seriously violates founding principles of the rule of law and human rights, the Committee of Ministers can so decide. This decision necessitates a two-thirds majority of representatives casting a vote and a majority of representatives entitled to sit on the Committee (see, on this subject, E.Klein “Membership and observer status” in The Council of Europe. Its Law and Policies (2017, OUP, edited by S.Schmahl and M.Breuer, esp. paras 3.54 – 3.77). In so far as the Assembly is concerned, suspension from the right of representation therein is governed by its Rules of Procedure, Rules 8 and 9, based on its capacity to “adopt its Rules of Procedure,” (Article 28 (a) of the Statute), the legal validity of which has not been opposed by any member state (except Russia, recently) nor the Committee of Minister; the application of these rules has become a recognised practice (Klein, para 3.72).
The most recent tension between Russia and PACE started when, as a reaction to the crisis in Ukraine, PACE suspended certain rights of the members of the Russian parliamentary delegation, including the right to vote in 2014 and 2015. The Russian delegation was not, however, expelled from the PACE. Its parliamentarians’ credentials were not revoked and members of the delegation could still participate in certain areas of the Assembly’s work.
Pursuant to its internal procedures, PACE must proceed to ratify credentials of delegations each January. Since Russia failed to comply with PACE resolutions, (1990 (2014), 2034 (2015) & 2063 (2015)) there was a strong probability PACE would not ratify the credentials of the Russian delegation in 2016. It is generally accepted that in order to avoid this potential humiliation, the Russian parliament decided not to submit credentials for ratification in 2016, ditto in 2017 and in 2018. Hence, Russian parliamentarians have not participated in PACE’s work since 2016 (they actually ‘walked out’ after sanctions were applied so, although formally accredited up to 2016, they didn’t ‘participate’ since an earlier date).
In 2017 Russia failed to pay two-thirds of its contribution to the ordinary budget of the Council of Europe; the contribution of €33 million (€22 + € 11), due in February of this year was not paid. The Russian authorities have indicated that the full amount owed to the Organisation would be paid when the above-mentioned ‘demand’ is complied with. When making this ‘demand’ Russia conveniently forgets to mention the country’s non-compliance with commitments undertaken when joining the Council of Europe, as pointed out in the Assembly’s resolutions referred to above.
The Russian Foreign Minister, Lavrov, has suggested that as Russian parliamentarians have not participated in the election of many judges to the Strasbourg Court, the Court’s authority can be put into question. This argument has no legal basis under the ECHR. Also, surely it cannot be correct to argue that if an MP chooses not to vote, or is deprived of so doing, when the Assembly elects judges to the Strasbourg Court or elects a Secretary General, that that MP’s state would no longer be bound by the rulings of the Court or could question the legitimacy of the election of a Secretary General. Lavrov’s argument is both logically and legally flawed.
Finally, there looms the possibility of Russian withdrawal from the Organisation which would result in the country no longer being bound by the ECHR. Hundreds of thousands of individuals would be deprived of the possibility of bringing application before the Strasbourg Court. However, the Assembly, and indeed the Organisation itself, cannot simply comply with the (exaggerated) ‘demands’ of one member state. There are red lines that cannot be crossed.
The draft resolution adopted by the Assembly’s ‘Rules Committee’ on 20 September 2018 merits serious consideration in the light of what has been written above. It provides, without express mention of Russian so-called concerns, a substantial ‘accommodation’ to what the Russian side has sought to obtain. It is in effect a compromise being put forward in good faith to a member state whose parliamentarians have excluded themselves from ‘political dialogue’ offered to them (PACE Resolution 1990(2014), para 14) Although PACE would keep the ‘credentials procedure’ in place, the change of rules would make revocation of credentials very difficult, requiring one sixth of PACE members to initiate this procedure (effectively increasing the number from 30 to 54). Moreover, the qualified majority of two-thirds of the votes would be required in order to reject credentials. Also, if ever delegations were to be deprived of voting rights, their parliamentarians would still be able to take part in the election of judges onto the European Court of Human Rights, the Commissioner for Human Rights and the Secretary General of the Organisation. These are, arguably, the most significant decisions that PACE is empowered to make.
Also, under the little known Article 29 of the Statute of the Council of Europe, the proposal to increase a simple majority decision-making to a qualified majority one would itself require a qualified majority. In other words, provided the proposal to increase the voting majority remains in the draft resolution, a two-thirds majority of PACE members should vote in favour of it at the Assembly’s October part-session. If such a proposal is adopted it will signify that the vast majority of PACE members are willing to find a compromise with the Russian authorities.
For PACE to remove the possibility, in its rules, of the exclusion from its ranks of a parliamentary delegation of a state which refuses to comply with the Organisation’s fundamental values would be suicidal. This would undermine not only the Assembly’s reputation and credibility, but that of the Council of Europe as a whole. Fortunately, nobody, despite the Russian request (and barring any amendment passed in PACE plenary in October), is proposing to totally remove the possibility of exclusion. Hence the logic in supporting, by all concerned, the proffered compromise of the Assembly’s ‘Rules Committee.’