Russia and the European human rights system: Doing the right thing … but for the right legal reason?

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Less than a month after its invasion of Ukraine, the Russian Federation has ceased to be a member of the Council of Europe. On 16 March 2022, the Committee of Ministers decided to expel Russia from the regional organization with immediate effect, although without resolving the many legal consequences of this decision.

Perhaps the most important consequence concerns the applicability of the European Convention on Human Rights (ECHR). On 23 March, the Committee of Ministers and the Plenary of the European Court of Human Rights (the ECtHR or Strasbourg Court) decided, almost simultaneously, that the Russian Federation will cease to be a Contracting Party to the Convention on 16 September 2022, namely 6 months after its expulsion.

In this post, we argue that this decision, while politically and morally justifiable, is not legally obvious. The decision also raises unresolved legal and practical issues that the ECtHR and other Council of Europe institutions will likely face in the coming months and years.

The most immediate consequence of these decisions is that Russia will be responsible for violations of the Convention that occur during the six-month window before its departure from the Convention takes effect. The ECtHR will thus have jurisdiction over all applications alleging violations that occur before and during this period that are filed in Strasbourg until 16 September 2022—and possibly much later, if the Court accepts cases alleging violations that occur prior to that date but whose domestic remedies are exhausted thereafter. Given the widespread and systemic violations of civil and political liberties resulted from the ongoing brutal war in Ukraine, the number of potential claims against Russia that may end up in the Strasbourg Court could reach the hundreds of thousands.

Legal considerations

The crux of the legal issue concerns the interaction of ECHR Article 58 and the Statute of the Council of Europe. To fully appreciate this issue, we reproduce the first three sections of Article 58 in full:

Denunciation

  1. A High Contracting Party may denounce the present Convention only after the expiry of five years from the date on which it became a party to it and after six months’ notice contained in a notification addressed to the Secretary General of the Council of Europe, who shall inform the other High Contracting Parties.

  2. Such a denunciation shall not have the effect of releasing the High Contracting Party concerned from its obligations under this Convention in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective.

  3. Any High Contracting Party which shall cease to be a member of the Council of Europe shall cease to be a Party to this Convention under the same conditions.

According to the Resolution of the Committee of Ministers, Russia ceased to be a member of the Council of Europe on 16 March 2022. Does that also mean that it ceased to be a party to the Convention on the same date? The meaning of the phrase “under the same conditions” in section 3 is key. What are those conditions? Since no other member state has ever been expelled from the Council there is little practice or commentary on Article 58. (Article 58 ECHR was previously applied only once, when Greece denounced the Convention, but there the situation was different and section 3 was not involved.) The provision (formerly Article 65) was barely discussed during the drafting of the Convention and the travaux préparatoires appear to contain no helpful information.

Neither the Committee of Ministers nor the Strasbourg Court explain the reasoning behind their decisions. There are at least three plausible interpretations of section 3. First, the “conditions” mentioned in section 3 may refer to both sections 1 and 2 of Article 58. Under this interpretation the Convention continues to apply in relation to the expelled party for six months. In effect, the same conditions—notice and a cooling off period—apply to an expulsion precisely as they do for a voluntary withdrawal from the Convention. This interpretation was chosen by the ECtHR and the Committee of Ministers.

Second, section 3 of Article 58 may refer only to section 2 of that Article. Under this interpretation, the Convention ceases to apply from the moment of expulsion. Read this way, Article 58 confirms that the expelled party remains responsible under international law for Convention violations that occurred only prior to that date.

Third, the “conditions” under section 3 may refer to the condition ceasing of being a member state of the Council of Europe. In this view, the conditions are those established by the Statute of the Council and the Committee of Ministers as that organization’s executive body. The Committee’s decision of 16 March 2022—Russia’s immediately expulsion—thus also immediately terminated its membership in the Convention.

The legality of the decision of the Court and Committee of Ministers depends on which of these three interpretations is correct. The first interpretation provides the soundest legal basis for extending Russia’s Convention membership by six months. The decision has the weakest foundation under the second interpretation. In the third scenario, the Committee of Ministers has the discretion to set the conditions of expulsion—and a six-month extension can plausibly be seen as such a condition.

Political and moral considerations

The decision to extend the application of the Convention is defensible from a political and moral perspective. The Committee of Ministers and the Court did not want to give Russia an easy way to avoid responsibility for the massive human rights violations resulting from its invasion of Ukraine. Thousands of people are being killed, tortured, and illegally detained. Private and family life, property rights, and the education of millions of children have been fundamentally, perhaps irrevocably, disrupted. Millions of civilians have fled to neighbouring countries and many others are displaced internally. The immediate cessation of Russia’s status as a party to the Convention would have made it far more difficult for the victims of these and other violations to seek redress in Strasbourg. The Court and Committee of Ministers’ desire to avoid this outcome is understandable.

Practical issues

Determining the date of Russia’s departure resolves one legal issue. Many others will soon arise. Pursuant to Article 20 of the Convention, the Court should consist of a number of judges equal to that of the Contracting Parties; as soon as the state’s membership ceases, “their judge” must leave the bench. As a result, the recently elected Russian judge will continue hearing cases—but only until 16 September 2022, on which date he will no longer be the permanent member of the ECtHR.

Pursuant to section 4 of Article 26, the judge elected in respect of the Contracting Party concerned sits as an ex officio member of the Chamber and the Grand Chamber. The most important cases against the Russian Federation thus cannot be heard in the absence of the Russian judge. The ECtHR will need to decide how to comply with Article 26 when the respondent state is no longer a party to the Convention. If the permanent judge is unavailable, section 4 provides that the President of the Court can chose an ad hoc judge from a list submitted by Russia in advance. However, it seems unlikely that the individuals currently on the list will participate in hearings in Strasbourg.  

Even if an ad hoc Russian judge does agree to serve, it is unclear whether the Russian government will take any part in the proceedings. Respondent states are expected to submit factual and legal arguments to refute or explain the allegations made against them—which Russia has done generally prior to its expulsion. If it refuses to participate in subsequent cases, the ECtHR may be forced to issue default judgments. Such adjudication “in absentia” opens the Court to criticism that the proceedings in Strasbourg are contrary to the equality of arms principle.

Even if the Court manages to solve the legal and practical difficulties of judging a non-cooperating Contracting Party, one can question the effectiveness of pursuing human rights complaints against Russia in Strasbourg. The country’s record of executing judgments was very modest when it was a member of the Council of Europe. It seems likely that after its departure Russia will categorially refuse to implement the Court’s decisions and the remedies it awards—especially if it has refused to participate in those cases. This is so notwithstanding the statement in Committee of Ministers decision that “[t]he Russian Federation is to continue to participate in the meetings of the Committee of Ministers when the latter supervises the execution of judgments with a view to providing and receiving information concerning the judgments where it is the respondent or applicant State, without the right to participate in the adoption of decisions by the Committee nor to vote.” Stated more pointedly, a directive to engage is no guarantee of actual engagement. 

These issues will affect access to justice for many thousands of individuals. The current caseload against Russia is substantial:  18,000 applications were pending as of 28 February 2022. All of these cases predated the most recent invasion of Ukraine. During the six-month window provided by the Committee of Ministers’ decision, a surge of applications arising from the war will surely arrive in Strasbourg. This could overwhelm the Court’s docket, hampering its ability to process cases expeditiously.

Will the ECtHR continue to accept applications against Russia filed in Strasbourg after 16 September 2022? The Court’s Plenary Resolution of 23 March 2022 suggests that it will. Paragraph 2 provides that the ECtHR “remains competent to deal with applications directed against the Russian Federation in relation to acts or omissions capable of constituting a violation of the Convention provided that they occurred until 16 September 2022.” This marks the outer temporal boundary of the Court’s jurisdiction by the date of the alleged violation, not the later date that an application relating to that violation is filed, thus allowing individuals to exhaust any domestic remedies that may exist. However, the Resolution also states that it is “without prejudice to the consideration of any legal issue, related to the consequences of the cessation of the Russian Federation’s membership to the Council of Europe” that may arise as the Court considers cases.

Conclusion

The Committee of Ministers and the ECtHR have adopted a progressive legal interpretation that preserves a narrow avenue to challenge human rights violations resulting from the invasion of Ukraine notwithstanding Russia’s immediate expulsion from the Council of Europe. Whether applicants who pursue that pathway will receive a remedy for those violations is far less certain. The crush of applications, the reduced financial resources resulting from Russia’s departure, and the government’s likely nonparticipation in Court proceedings or in the execution of judgments raise high, perhaps insurmountable, hurdles. Still, individuals are unlikely to be deterred. The ECtHR judgments in their favour will thus be largely symbolic, providing a lasting if incomplete record of Russian aggression—at least until a future Russian government reengages with the regional human rights system.

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Ed Bates says

March 29, 2022

Thank you very much for this. Just some thoughts by way of initial reaction.

As you say, ‘In this post, we argue that this decision [that reached with respect to Art 58], while politically and morally justifiable, is not legally obvious’.

I agree. However, for the avoidance of doubt, I wish to make the point – strongly – that the interpretation arrived at by the Court and CoM WAS legally valid. (I may be being over-sensitive here, but I do this as your blog post does seem to cast a little shadow over matters here, or at least raise a question. It is entitled: ‘Doing the right thing … but for the right legal reason?’ At the very least I wish to highlight that there were very solid legal reasons for the decision arrived at).

So....

I agree that the Art 58 outcome reached was not ‘legally obvious’ – but then again nor was any other outcome. Or, was there a different ‘legally obvious’ solution? I do not think there was. That is a first, important point.

So, was the decision reached on Art 58 for the ‘right legal reason’? Of course, opinions will differ. But we start by noting that the Court’s decision was reached in plenary: so at least two-thirds of the 47 Judges (the requirements for the Plenary Court, I think) were prepared to subscribe to the Resolution. That is another important point.

Was it the correct decision in law? Yes, alternatives were possible – although if they had been adopted they too would have been open to criticism.

I believe the Court’s decision was correct in law. I will be brief for now (and hope to write at greater length soon):

First, and not to be lost sight of, the reading of Art 58 adopted was a perfectly reasonable reading of it. This was the first, as you say ‘plausible’, reading that you note above, and which was adopted by the Court and CoM.

Even beyond that other considerations can come into play.

1. Higher order values of the Convention:
- As Art 58 is open to interpretation, I believe that there are strong reasons that the higher order values of the Convention as an instrument for the protection of human rights may become a valid consideration as regards the interpretation actually arrived at.
- One may have in mind here the present day status of the Convention, which the Court has referred to repeatedly as a ‘constitutional instrument of European public order’. (In addition, the Copenhagen Declaration of 2018 witnessed all HCPs to the Convention recognise ‘The Convention system has made an extraordinary contribution to the protection and promotion of human rights and the rule of law in Europe since its establishment and today it plays a central role in maintaining democratic security and improving good governance across the Continent’).
- The ‘constitutional instrument of European public order’ values of the Convention permit an interpretation of its provisions that protect the legal order that the Convention establishes. This is justified by the nature of the legal order that the Convention established and the interests at stake (cf Ireland v UK (1978): ‘Unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a "collective enforcement"’).

2. Present day status of Convention:
- Related to the above, there is an argument that any interpretation Article 58 may be adopted against the backdrop above, and so with an emphasis on the present day status of the Convention (as opposed to a technical, historical understanding).
- (so here there is an argument for a kind of evolutive interpretation of Art 58, given the evolved status of the Convention for the 21st century, compared to the specific time when that was provision was drafted, in the immediate post-war era, when the Convention was seen as more of an inter-state pact between States. The Convention has since evolved into a ‘constitutional instrument of European public order’, which can involved an adjustment compared to ‘international treaties of the classic kind’ cf above – hence the Court’s approach to ‘old’ Art 25 in the Loizidou case).

3. Reasoning contained in the Resolution (effectiveness):
- I agree that the Court’s resolution could have offered more reasoning. Indeed, there was very little reasoning. But it was not completely silent. That is, we know that at least two-thirds of the 47 Judges (the requirements for the Plenary Court, I think) were prepared to subscribe to the following part of the Resolution:
- ‘CONSIDERING that the object and purpose of the Convention, as an instrument of human rights protection, call for an interpretation and application of its provisions so as to ensure practical and effective protection to those subject to the High Contracting Parties’ jurisdiction;
- CONSIDERING Article 58 of the Convention;’.
So, when it read Art 58 as it did and adopted its Resolution we know the Court prioritised the effectiveness of the Convention. The paragraph above indicates that the Court regarded itself as entitled to do so not based on moral or political considerations but, based on ‘the object and purpose of the Convention, as an instrument of human rights protection’. (Of course here it may be in the nature of the subject matter of the Convention that there is a degree of overlap between the legal interpretation arrived at and some moral or political considerations?)

(Apologies – what was intended to be an ‘initial reaction’ [my first line above] has grown and grown!!)

Helier says

March 29, 2022

It is also of interest to consider the French version of Article 58. Para 3 begins "Sous la même réserve", which quite clearly refers to para 2 alone.

Laurence Helfer says

March 29, 2022

Dear Ed,

Many thanks for your thoughtful and detailed comments. You make a compelling case that the interpretations adopted by the Committee of Ministers and the ECtHR furthers the European Convention’s overarching values. We do not seek to question the legal validity of these decisions. We also agree that the ECtHR, as the preeminent interpreter of the Convention, has (together with the CoM) the authority to select the most appropriate among the three plausible interpretations of Article 58 that we identify.

More broadly, our essay highlights the understudied relationship between a state’s membership in an international organization and its status as a party to a treaty adopted by that organization. We also point out that the decisions will have significant practical consequences for the Strasbourg supervisory system, some of which may exacerbate the ability to effectively adjudicate cases relating to the war in Ukraine.
We look forward to reading your more extensive analysis of these issues when they are published!

Best,
Larry and Kanstantsin

Luigi Crema says

March 30, 2022

Dear Kanstantsin Dzehtsiarou and Laurence Helfer,

thank you for spotting the issue and trying to clarify it. It is not easy, because the Plenary did not provide the specific reference for their decision, but only a generic reference to Art. 58.

The lack of a clear interpretation of ECHR Art. 58 is absolutely striking, giving the whole streak of legal acts that preceded the decision of the Plenary of the Court, and to which the preamble of the Resolution refers.

First, Russia, on March 15th, declared the intention to withdraw from the CoE. Article 7 establishes a sunset clause, under which the ECHR would have continued to apply.
But on the very same day the Committee of Ministers of the CoE accelerated Russia’s decision by unanimously deciding to terminate Russia’s membership to the CoE by March 16th (Resolution CM/Res(2022)2). It seemed to me to be a hasty decision, more in the spirit of unfriending somebody on Facebook than that of protecting the beneficiaries of the ECHR - that is, Russian and Ukrainian individuals, and pushed the process of withdrawal under Art. 8.

Third, the President of the ECtHR issued a statement (Registrar of the Court, Press Release ECHR 092 (2022), 16.03.2022, "The European Court of Human Rights decides to suspend the examination of all applications against the Russian Federation") saying: "Following the Resolution of the Committee of Ministers that the Russian Federation ceases to be a member of the Council of Europe as from 16 March 2022 (Resolution (CM/Res(2022)2), the Court has decided to suspend the examination of all applications against the Russian Federation pending its consideration of the legal consequences of this Resolution for the work of the Court."

Then, finally, a few days later, the Plenary of the Court indeed expressed "its consideration of the legal consequences" of the Committee's expulsion, remembered that we are talking about individuals and not just states, and stressed (and reminded the Committee of the Ministers...) of the fact that, the "object and purpose of the Convention, [that is] an instrument of human rights protection, call[s] for an interpretation and application of its provisions so as to ensure practical and effective protection to those subject to the High Contracting Parties’ jurisdiction". On the same day, the Committee of the Ministers, as you have thoroughly analyzed, adopted a very articulated Resolution, which goes beyond the trenchant language used on March 15th.

After so many confusing and conflicting decisions one would expect (from the Plenary of a Court!) some clarification and interpretation of the applied law. One would expect something more clear and sound from a patch, actually a thick bandage, put over a previous decision made overly hastily.
Anyway, thanks again for your post.

Gerald Neuman says

April 2, 2022

On the subject of remedies and their effect, I think the ECtHR still has an important role to play in quantifying the damages/just satisfaction owed by Russia, in legally binding fashion. These might be paid in the future from assets frozen in the sanction regime, and secondarily increase the incentives on Russia to stop inflicting damage.