Reforming PACE rules of procedure must not lead to a weakening of the current sanctions regime

Professor of European law Michel Waelbroeck and international affairs expert Willem Alsderhoff argue that under no circumstances should political sanctions be lifted on Russia in PACE under the Trojan horse pretext of "reforming PACE rules of procedure" without rectifying the reasons why they were applied in the first place.

The Rules Committee of the Parliamentary Assembly of the Council of Europe (PACE) will shortly be considering a report from the ad hoc Commission set up by the Bureau to examine the future role and mission of PACE. One of the points on the agenda is whether the rules on challenging credentials of delegates should be amended. The current rules were reinforced after several Central and Eastern European countries applied to become members of the Council of Europe (CoE). They made it possible to challenge delegates’ credentials in case of serious violation of the basic principles of the CoE or persistent failure to honour obligations and commitments accepted as a condition for admission. This reinforcement was considered necessary to ensure continued compliance by the new members with the principles of Article 3 of the Statute. A monitoring committee was set up to verify the fulfilment of obligations and commitments. Its main task is to prepare reports on the situation of local and regional democracy in Europe and monitor specific questions related to local and regional democracy in individual member states. This paper will show that, whatever amendments are made to the rules, they should not weaken the current regime.

The origin of the problem

After Russia’s aggressions in Crimea and eastern Ukraine, PACE decided to suspend the Russian delegation’s right to vote, its right to be represented on the Bureau, the Presidential Committee and the Standing Committee and its right to participate in election observation missions. PACE was careful not to suspend the Russian delegation’s credentials, considering that “political dialogue should remain the most privileged way to find a compromise.” Instead of accepting this invitation, the Russian delegation withdrew completely and failed to submit credentials for subsequent sessions. Contacts were established shortly afterwards between a CoE delegation headed by then President Pedro Agramunt and the chairperson of the Russian Federation Council (i.e. Senate) Valentina Matviyenko in which the head of the CoE delegation stated that without Russia PACE felt “lonely” (odinoki) and that Russia “must” (dolzhna) participate fully in its activities. Although they were responsible for the situation, the Russians seized the opportunity thus offered but subordinated their return to the elimination of the possibility of sanctioning delegates in a similar manner in the future. They also demanded that there should be no more monitoring of individual CoE members but only thematic monitoring. It is therefore clear that, although the report of the Ad hoc Committee makes no mention of Russia, that country is behind the proposal now being discussed to weaken the existing sanctions regime.

The sanctions imposed on the Russian delegation is justified by Russia’s behaviour

As is evident, the annexation of Crimea and the active support given to the secessionists in eastern Ukraine constitute serious violations of the basic principles of the CoE within the meaning of PACE Rule 8.2.a). These actions were approved by both chambers of the Russian Parliament.

Moreover, Russia failed to honour many of the commitments it entered into upon joining the CoE, thus further justifying a sanction under Rule 8.2 b):

Russia committed to ratify the European Convention on Human Rights (ECHR). Formally, it complied with this requirement.

However : - in December 2015, it adopted a law giving its constitutional court the power to declare ineffective in Russia judgments of the European Court of Human Rights (ECtHR). This is a clear violation of Article 46 of the European Convention on Human Rights (ECHR) which obliges Russia “to abide by the final judgment of the Court” without exception. - Mrs Matviyenko, chairperson of the Russian Federation Council, recently announced that Russia would not consider itself bound by judgments of the ECtHR adopted by judges elected without Russian participation. This constitutes another clear breach of Article 46 ECHR. No other State member of the CoE has had the audacity of confronting the ECtHR in such a manner. Russia’s conduct is not only an insult to the Court but also an attack on the entire system of human rights protection in Europe.

Russia committed to ratify several protocols to the ECHR, including Protocol No 6 on the abolition of the death penalty.

Although it ordered a moratorium on executions, it still has not enacted the abolition of the death penalty. Worse, there is increasing talk in political circles of putting an end to the moratorium. Russia is the only State member of the CoE where capital punishment is not legally abolished.

Russia committed to settle international and internal disputes by peaceful means, and not to use or threaten the use of force against its neighbours. It committed to denounce as wrong the concept of two different categories of foreign countries, whereby some are treated as a zone of special influence called the “near abroad”. As part of this commitment, it committed to withdraw its troops from Transnistria, a breakaway province of Moldavia.

However: - Russia has not to this day withdrawn its troops from Transnistria; - it provided military assistance to the breakaway Georgian provinces of South Ossetia and Abkhazia; at the prompting of both houses of Parliament,

it recognised the governments of these regions in violation of Georgian sovereignty. The leadership of both the Duma and the Russian Federation Council publicly opposed the demands of PACE to redress the situation and dismissed the possibility of complying with them.

The State Duma adopted restrictive laws, including amendments to the law on defamation, the law on information, the law on NGO’s, and the law on assemblies, which PACE considered “potentially regressive in terms of democratic development.”

As PACE pointed out, the Russian judiciary is not independent. It remains subject to political pressure as evidenced inter alia by the imprisonment of Mikhail Khodorkovsky and of the Pussy Riots. Authors of politically motivated murders are not brought to justice (cf the cases of Sergei Magnitsky and of Vera Trifonova) ; the same applies to perpetrators of numerous other cases of murder, abduction and torture in the North Caucasus.

To conclude, until recently,

PACE showed a truly extraordinary degree of indulgence with respect to Russia. The events in Crimea and eastern Ukraine are not isolated incidents but the culmination of a long series of violations by Russia. PACE’s reaction in sanctioning the Russian delegation for its implication in these events was by no means excessive.

Since then, Russia has not given any indication that it intends to reverse its past actions. To the contrary, it is presenting itself as the victim of an unduly harsh punishment and demands that the Rules be amended so that no similar punishment could be possible in the future. This would deprive PACE of the only effective sanction it can impose.

The PACE sanctions mechanism should not be weakened

Ever since the establishment of the CoE, PACE has played a paramount role in affirming the spiritual and moral values which are the common heritage of the peoples of Europe. Composed of delegates elected by the parliaments of the member States, it enables these delegates to express their opinion collectively on matters which their governments often prefer not to raise for reasons of diplomatic courtesy. It truly represents the “conscience” of Europe. PACE’s power to challenge delegates’ credentials is the only means at its disposal to sanction delegates who fail to observe the basic principles of the CoE or the commitments entered into by their country.

If this power were abolished or curtailed, the CoE would no longer be able to fulfil its mission.

For the same reason, the Russian demand to stop the monitoring of individual countries, leaving only thematic monitoring, would significantly weaken PACE’s possibilities of investigating problematic situations. The claim regarding possible double standards is without foundation since the criteria for evaluation are established ex-ante. Eliminating the possibility of country-by-country reports would do away with one of the main instruments at the disposal of the Monitoring Committee, depriving that body – and as a result PACE itself – of its practical usefulness. Other CoE members would be emboldened to flout the principles of democracy, rule of law and protection of human rights. It is sometimes argued that the procedures of PACE should be “harmonised” with those of the Committee of Ministers and that a change to the rules on challenging credentials of delegates is necessary to this end. However, such a change should not deprive PACE of one of its main prerogatives. The Russian aggression against Ukraine provides a clear example. Although PACE reacted strongly and effectively, while keeping open the possibility of a negotiated solution, the Committee of Ministers contented itself with discussing the situation without taking any action at all.

The CoE must not regress into a mere talking-shop adopting reports and resolutions without concrete effect.

As stated by Mr Tiny Kox, “formulating rights without guaranteeing them effectively creates cynical citizens and encourages a lack of trust towards national authorities and in the value of the collective guarantees set up by the Council of Europe and by other international organisations.” Proponents of a Russian return point out the risk of a Russian withdrawal from the CoE and the ECtHR, thus depriving 140 million citizens of protection of their human rights. This argument loses sight of the fact that Russia has already removed this protection by granting its constitutional court the power to declare judgments of the ECtHR ineffective. Russia complies with ECtHR judgments only when this suits it.

Proponents also point out the financial consequences of a Russian withdrawal. Although the loss to the CoE’s budget would not be inconsequential, it would be far from reaching the level where the organisation’s viability would be at risk. It would be shocking if considerations of such a nature were invoked to “justify” the Russian delegation’s return to PACE. Moreover, it is most unlikely that Russia will pull out entirely. Such an extreme solution would be an acknowledgement that it no longer considers itself as devoted to the principles of democracy, rule of law and protection of human rights. This would contradict Russia’s search for recognition and international respectability. Russia’s preferred solution is to remain formally within but behave as if it were outside.

Conclusion

History will judge harshly those who give in to blackmail from undemocratic societies where a corrupt few rule the population, take the law in their own hands and reserve for themselves the right to grant or deny their citizens protection against abuses. Citizens across the European continent, from north to south and from west to east, will show no understanding for such behaviour from those elected to protect Europe’s most fundamental values.