The Council of Europe and Russia Relationship: A view from Russian Civil Society

After the Interstellar movie came out a meme started circulating among Russian human rights lawyers. Depicting protagonists on a faraway planet the picture had a caption saying, “One hour on this planet is seven years on Earth. Perfect place to wait for a judgment of the European Court of Human Rights”. As I write this blog the ink has barely dried on a judgment condemning Russia for violations of the freedom of expression on account of the application of anti-extremist legislation going back to 2007 and on a communication concerning property rights in Russia-controlled Georgian Autonomous Republic of Abkhazia, also dating back to 2007.

This is how the cooperation of the Russian civil society with the Council of Europe looked like: focusing on the Court, we never traveled that far, but at the cost of Strasbourg action coming too late to be meaningful. This blog cannot tell the whole story, especially about the work on the grassroot level, but it will discuss Russian civil society’s engagement with the Council’s bodies. While the success before the Strasbourg Court was undeniable, it was almost always belated, whilst the Committee of Ministers and the Parliamentary Assembly preferred to be deaf to warnings and to listen to the Government all the time prior to 2022, and the Commissioner, even if occasionally effective, was powerless. I will look at some of these stories in turn.

European Court of Human Rights: major victories that may still help others

Historically, the Soviet dissident movement evolved around the idea of individual rights that the State has to abide by, once an undertaking has been taken. Following the demands of Aleksandr Yesenin-Volpin, mathematic logician and the founding theoretician of the Soviet human rights movement, for the “respect [of] the Soviet Constitution” in 1965, the Helsinki Accords in 1975 that gave rise to an international movement and lesser-known post-1977 group monitoring USSR’s compliance with the ICCPR led by Petr Grigorenko (retired war general and a prominent dissident, known as Petro Hryhorenko in Ukrainian), it was only natural that Russian civil society turned to the European Convention on Human Rights and its supervision mechanism in Strasbourg.

Here a dimension I would like to stress, for it is not brought out in the book, is that the successes were important and not only to the Russians themselves, but to the development of the Convention law in general. Matters vary from the right to life in the armed conflict on the basis of applications brought from the North Caucasus by Memorial, Stichting Russia Justice Initiative and Committee against Torture, to police torture (Committee against Torture), to the fairness of criminal proceedings (Centre de la protection internationale, Agora), to covert surveillance (Memorial), to violence against women (SRJI, Consortium of Women NGOs, and others), to LGBT rights (Dmitry Bartenev), to freedom of press (Mass Media Defence Center), to web-site blocking (Agora). The now 20 year-old Fadeyeva v Russia is still cited across the globe in environmental and climate litigation. Almost on her own (with the help of a handful of lawyers) the late Elena Ryabinina created the Court’s extradition case-law. If one peruses the Wong Ho Wing v Peru judgment of the Inter-American Court of Human Rights concerning extradition to China, all of the Russian ECHR cases cited by the judges of San José are those litigated under the supervision of Elena.

Execution of judgments: doing the Committee of Ministers’ work on our own

The focus of the book around which this symposium takes place is, however, not on the Court, but on the Council of Europe bodies in general. Of those, the Committee of Ministers has been the major recipient of mail from Russia. This is, of course, because of its role as a supervisor of the execution of the Court’s judgments. To avoid going back to the Court-related issues, only two brief stories will be told.

What is now the bread and butter of the European NGOs doing advocacy work, the European Implementation Network in particular, was almost single-handedly invented and tested around 2010 by Grigor Avetisyan of SRJI. He started following up regular Rule 9 submissions on the execution of the Court’s Chechen judgments with regular advocacy visits meeting individual States’ delegations to the Council, briefing Ministers’ Deputies and the Committee’s secretariat. In 2010s the Committee was reluctant to take any meaningful action beyond accepting everything the Russian Government said at face value, but even minor improvements in access to domestic investigation files was evidence for the whole Continent that Grigor’s approach may bear fruit.

The Committee was a bystander even to a successful execution of the Court’s judgments. In 2017 two Memorial organisations made a Rule 9 submission on the issue of indefinite detention of stateless persons pending expulsion that was never to take place as no country would accept them. Anna Pushkarskaya, of Kommersant, then a leading business daily, was browsing the Committee’s web-site and came across the submissions. She called Memorial and soon made a story half the third page of Kommersant. Having read the newspaper, the Constitutional Court discovered that there was a case challenging the legislation allowing for indefinite detention of stateless persons in its docket, promptly scheduled it for hearing and struck the impugned norms down. Only then the Committee’s secretariat called to ask to separate Article 5 and Article 3 issues in the submission — something was no longer necessary.

And yes, it was the same Constitutional Court that had upheld the anti-extremist legislation, all sorts of unchecked covert surveillance, “foreign agents’ law”, annexation of Crimea, denied rights to LGBT people, clashed with Strasbourg over its pretended right to breach the Convention as it pleased etc. (very little of this can be found in the book which barely cites Russian court rulings except for a few most notorious judgments from the Constitutional Court). The point here is not that judgments such as Mskhiladze on the indefinite detention of stateless persons or Sakova and Balukova and Chernigina on violence against women somehow rehabilitate or embellish the Constitutional Court or legitimise its cannibalistic judgments on other matters. The point is that the joint efforts of NGOs, journalists, lawyers could bring results even in such adverse conditions. The results would have probably been even more impressive should those in charge of international oversight acted rather than stood by.

PACE: between creating a tribunal and appeasement of the Russian Government

Because, as the book explains in detail, for the matters outside the execution of the Court’s judgments the Committee offered even less meaningful interaction, whilst regular interaction happened with the PACE. Recall that when the Russian delegation to PACE was first deprived of the right to vote in the wake of the Second Chechen War and called, following a 2003 report by Rudolf Bindig, for an establishment of an ad hoc tribunal, the Committee of Ministers took no action in the face of human rights violations demonstrably constituting war crimes and crimes against humanity. In such circumstances, that is the failure of the CoE’s political leadership, the Court became the last hope, and the last resort for victims of serious human rights violations.

One of the critical points in the relations of Russian civil society with the PACE, as the book rightly notes, came in 2019. The Assembly was preparing to lift sanctions on the Russian delegation (introduced after the occupation of Crimea and parts of Eastern Ukraine in 2014) in exchange of the repayment of 60M euros of Russia’s outstanding contributions to the Council. The Russian Government successfully blackmailed the Council with the threat that if its rights of representation in the Committee of Ministers were suspended, as should have happened after two years of non-payment of contributions, it would withdraw from the Convention and deprive those under its jurisdiction of the right to complain to the Strasbourg Court.

The book tells the story of the indeed regrettable and maladroit joint statement of Russian human rights defenders who essentially endorsed the claim to return the Russian MPs’ right to vote or Russians will be deprived of the right of individual petition. The book, presenting the Russian civil society as an indivisible whole (as it also does with the Council of Europe’s bodies or with the Russian Government), omits to mention the other, powerfully dissenting voices critical of the appeasement. Memorial strongly opposed the joint statement, Pavel Chikov, of now dissolved and prohibited Agora, took critical stance in a Mediazona interview, no support came from Committee against Torture or SRJI — all intensively engaged in litigation and advocacy on the European and international level. Individually, I authored an op-ed in a leading business daily criticising the PACE’s intention to give in to blackmail and to surrender the Council’s values for nothing, betraying the victim that was Ukraine. Between 2019 and early 2022 successive PACE delegations visited Russia and ticked the “met with NGOs” box: their only difference from the Duma deputies of “United Russia” was that they spoke English.

Commissioner for Human Rights could save lives

The Commissioner for Human Rights was the most obvious contact point for the Russian NGOs and individual human rights defenders engaging with the Council. The Commissioner’s voice, however firmly based on the facts and their analysis, has hardly been heard within the organisation. Yet, even on one’s own the Commissioner could occasionally save lives. In 2005, when enforced disappearances in Chechnya still were commonplace, the then Commissioner Alvaro Gil-Robles brought together NGOs and regional law-enforcement to discuss the matter (already back then direct communication was impossible). During the conference in the North-Caucasus mineral water resort of Kislovodsk news of yet another disappearance reached Natalya Estemirova, of the Grozny office of Memorial (assassinated for her work in 2009), and Svetlana Gannushkina, of the Civil Assistance Committee (declared “foreign agents” for their work). They immediately raised the case with Mr Gil-Robles and the then Chechen Minister of Interior. Thanks to this intervention the abducted person was luckily released.

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This blog is far from depicting the whole story of the Russian civil society’s engagement with the Council. Neither can it be found in the book largely centered around the documents found on the Council’s web-site (first source in Russian, an MFA communiqué, is mentioned on page 166) and English-language scholarship to the point that only a dozen of Russians not affiliated with the Government is mentioned therein, if and only if they wrote in English (full disclosure: I am one of those handful). Any debate within Russian civil society and its debates with the Government are absent entirely, leaving the reader wonder whether there were individuals and groups defending and bringing to the ground the values of the Council of Europe’s founding documents.

What is important, however, is not the late lip service to the courage of the Russian human rights defenders, so easy to pronounce from the comfort of the Palais de l’Europe. Rather, drawing lessons from the Russian experience means taking action so that human rights defenders and opposition politicians in the Council of Europe remaining members would not be sent to prison for their work, as is currently the case in Azerbaijan and Turkey, the situation in Georgia also worsening almost by day.