Russia and the Council of Europe: The troubled membership from the perspective of a Commissioner for Human Rights

The volume Russia, the Council of Europe and the European Convention on Human Rights should be essential reading for a number of different audiences.  It is very useful to have a detailed documentation of the fractious relationship of the organisation with one of its most important members. The book speaks to those pondering the difficulty of attempting to integrate Russia into the post-Cold War European order. Lessons learned from this ill-fated attempt should inform any effort by the Council of Europe (CoE) to re-engage with Russia after the war in Ukraine. While Russia’s backsliding and “bad faith” approach to fulfilling its human rights obligations were unprecedented in scope, some other member states have also seen serious democratic erosion, if not autocratisation, and have also not engaged in good faith cooperation. Thus, any lessons drawn from the Russian case should be applied to these and future backsliders as well.

I read the volume with particular interest, as I served as CoE Commissioner for Human Rights from 2012 to 2018 and participated in the drama it forensically analyses. Below, I share some observations on certain of the book’s narratives, via my own perspectives about the Russia debates I participated in and relate some of my own experiences in trying to engage Russia as Commissioner.

Many people at the CoE eye with concern and envy the immense resources and growing role of the European Union in human rights on the continent. For those in this camp, the CoE’s engagement with non-EU countries is of particular importance and a major source of its added value. This is particularly true regarding candidate countries to the EU, but also with large non-EU aspiring countries. In one discussion early in my mandate with a high CoE official, he shared his conviction that the Council of Europe had no raison d’être if it could not be a player in the three big non-European Union members of the CoE – Russia, Ukraine and Türkiye. While I understand this stance, I believe that the CoE has a unique and important mission in all member states.

Russia as a special case, and the ‘better in than out’ debate

The authors repeatedly stress Russia’s financial importance for the CoE, but it was clearly a “case apart” in terms of its political importance. I often heard from diplomats that the CoE was a rare platform on which other European states could engage with Russia.  Moreover, if there was any hope that membership in the CoE could foster a more democratic (or at least a less autocratic) and less aggressive Russia, many Member States were willing to overlook “shortcomings” and give it the benefit of the doubt.  However, as the authors point out, the end result was corrosive to the reputation and credibility of the organisation as a whole.

The authors point out that a frequent axis of discussion was “better in than out.”  I participated in many such discussions and always claimed that this was the wrong question regarding Russia (or Azerbaijan or Türkiye). I tried to reframe the discussion to examine whether the citizens of the country in question continued to derive any benefit from the CoE and whether the country’s membership helped or harmed the CoE. Were the only ones deriving any benefit applicants to the Court who received compensation after the Court ruled in their favour? Did the country implement any individual or general measures (especially on Article 18 judgments) or, on the contrary, did the governments punish lawyers who brought cases? Did the country cooperate in good faith by at least providing access to all actors from the CoE, so that there was some chance of positive human rights impact? Or did the country undermine the organisation by ignoring its standards, engaging in “caviar diplomacy” and carrying out sustained public relations in place of reforms? Were all of its PACE members pro-government regardless of which political party they belonged to? 

One key turning point covered in the volume is Russia’s annexation of Crimea and military incursion into the Donbas. I was personally shocked that the annexation did not evoke a more robust political response from the Committee of Ministers and PACE (as is set out in detail in chapter 4). The authors also argue, convincingly, that a very credible case could have been made to expel Russia in 2019, or at the very least not allow its reintegration on the basis that occurred.

As a Latvian national, occupation and annexation have a particular resonance with me and many of my co-nationals.  In relation to Crimea and the Donbas, many at the CoE looked to me as Commissioner to provide a human rights assessment of the situation. The same held true, I believe, for my predecessors Alvaro Gil Robles with regard to Chechnya and Thomas Hammarberg with regard to South Ossetia and Abkhazia after the Russia-Georgia war. The Commissioner is the “go-to” official for missions impossible. After long negotiations with the Russian and Ukrainian authorities, they both agreed to facilitate a mission to Crimea, which I carried out in September 2014.

The Russian authorities clearly miscalculated and apparently hoped that I would whitewash the human rights situation, concluding that there were some “shortcomings” but some “positive” developments as well. I did no such thing and wrote a hard-hitting mission report focusing on enforced disappearances, persecution of human rights defenders and journalists, and discrimination against the Crimean Tatars.  The Russians were furious, the Ukrainians were relieved, and I took some satisfaction in the conviction that I had upheld CoE standards.

After that, the Russian authorities would no longer give me access to Crimea or Russia proper.  They did not say “no” outright, but strung me along, giving me hope that a visit might take place, saying that the timing was bad, then reneging at the last minute, sometimes even after my team and I had bought airplane tickets. When I went public with their unacceptable behaviour, they were furious again. At one point, a Russian diplomat came to my office and tried to convince me to accept the unacceptable – an extremely short visit to Moscow with no meetings with NGOs and no public communications. When I asked him why I should grant Russia special treatment, he responded “because we are a superpower.”  I kicked him out of my office and told him to stop wasting my time. 

Following my mission to Crimea, relations between the CoE and Russia continued to deteriorate, though everybody wanted continuous monitoring of human rights on the peninsula . Since a second trip to the peninsula for me was out of the question, Secretary General Jagland negotiated his own mission to Crimea headed by his trouble-shooter Gerard Stoudman, a Swiss diplomat and former head of the OSCE’s Office of Democratic Institutions and Human Rights. The Crimea report he prepared for the Secretary General was portrayed as more “diplomatic” than mine – another example of trying to paper over what had become an irreconcilable rift between Russia and the CoE.

I did manage to do some monitoring work in parts of occupied Donetsk. The United Nations had a presence there and, in 2015 and 2016, it was considered safer and more stable than Lugansk. I hoped that if I persisted, the de facto authorities would give me access to places of detention, but these hopes were never fulfilled.  At a surreal dinner with the de facto ‘foreign minister’ of the “Donetsk People’s Republic,” I learned one of the reasons they were cooperating with me. I was asked to explain how the European Court worked and told that they had good Moscow lawyers ready to send hundreds of applications against Ukraine on behalf of people who claimed to have had their rights violated by the Ukrainian military.

The CoE and human rights

The above add to the examples of bad faith which the books sets out. Furthermore, it highlights the authors’ point about the importance of actors such as the Commissioner the Venice Commission in the CoE context, as they are not subject to the same constraints as the political bodies and can speak truth to power.

As for the ECtHR, the authors recognise that they have paid relatively little attention to that institution in terms of the role it played in relation to monitoring Russia’s shift to hard authoritarianism. They highlight the long delays experienced with respect to certain applications concerning restrictions on civil society and political persecution, leading to the conclusion that the ECtHR’s contribution was ‘too little too late’.

I agree with them that this would merit a detailed study, to which end I can add that throughout my mandate, a major concern was Russia’s “Foreign Agent Law” and similar legislation.  Early on, I put out a detailed opinion on this harmful legislation and issued an update on its arbitrary implementation.  I also submitted a third party intervention to the Court on a large group of cases alleging the law violated Russia’s obligations under the Convention. For several years, there was no indication that the Court was processing the  case.  I remember having a chat about the cases with the President of the Court, who told me that the delay was probably due to the Court’s section prioritising Article 2 (right to life) and 3 (prohibition of torture) cases from Russia.  I warned him that all the NGOs in Russia bringing such cases were being shut down through the Foreign Agent Law and soon there would be no more Article 2 and 3 applications. He looked at me in shock, confirming my suspicion that sometimes, the judges of the Court can be somewhat divorced from the political reality on the ground in Member States.  

In an early 2012 meeting at my Strasbourg office with a Russian deputy foreign minister, he insisted that Russia wanted me and other parts of the CoE to engage with his country.  Why? Because they should get something in return for their substantial financial contribution. Alas, they were not willing to receive and use what we had to give them. Indeed, I remember having a high-level PACE deputy in my office as relations were in a steep downward spiral.  He received a call from a Russian PACE colleague, then put down the phone and exclaimed in frustration – “They have to give us something to work with, but they are not giving us anything!” Russia not giving anything – or not enough – was never a recipe for a happy relationship.