Russia’s attempt to return to PACE: all you need to know

After Russia occupied Crimea and aggression in eastern Ukraine, the country faced economic sanctions from Western countries, including the EU and USA. It also faced political sanctions in the Parliamentary Assembly of the Council of Europe (PACE), its key institution, having been suspended in its voting rights. After an unsuccessful attempt to be fully restored in PACE at the end of 2017, the Russian delegation is attempting another comeback in October 2018 – and triggering alarms that this would end PACE as a human rights protector.

Here is everything you need to know about one of the most disturbing scenarios unraveling in a European institution. NOTE: This article has been, and will be updated according to the developing situation.

What does PACE do, anyway?

PACE, the parliamentary arm of the Council of Europe, is the “motor” of this institution and at the same time one of Europe’s major human rights instruments which keeps governments in check on their commitments. Thanks to PACE, the death penalty in Europe has been abolished and all citizens of 47 European governments enjoy the benefits of the European Convention on Human Rights and European Court of Human Rights.

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PACE, the Parliamentary Assembly of the Council of Europe, is one of the two statutory bodies of the Council of Europe, an institution created after WWII to protect Europe by defending a triad of principles: democracy, human rights and the rule of law, along with the Committee of Ministers. PACE is regarded as the “motor” of the CoE, driving forward new ideas, setting strategic direction and initiating many of the Council’s most important activities. Some of PACE’s achievements include ending the death penalty in Europe, exposing torture in CIA secret prisons in Europe, enabling the adoption of today’s European Convention on Human rights and, consequently, the establishment of the European Court of Human Rights. PACE also elects judges of the Council of Europe’s Commissioner for Human Rights and its Secretary General, as well as the members of the Committee for the Prevention of Torture.

Today, PACE can:

  • Demand action from 47 European governments who must jointly reply;
  • Conduct probes to uncover new facts about human rights violations;
  • Question Presidents and Prime Ministers on any topic it chooses;
  • Observe elections and send delegations to mediate in crisis hot-spots;
  • Negotiate the terms on which states join the Council of Europe;
  • Inspire new national laws by proposing and giving opinions on treaties;
  • Request legal opinions on the laws and constitutions of member states;
  • Sanction a member State by recommending its exclusion or suspension.

Although the CoE and PACE experienced a loss of significance as the EU enlarged, they still remain essential and play a crucial role in Eastern European and Caucasian countries which don’t belong to the EU.

Does Russia participate in PACE now?

Russia was suspended in its right to vote in PACE, be represented in its ruling organs, and to participate in election observation missions following its aggressions in Ukraine. The delegation’s credentials were not suspended so that political dialogue could be continued; however, Russia pulled out completely by its own will and stopped paying its membership fees to the CoE, putting the organization under financial stress.

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After Russia’s occupation of Crimea and aggression in eastern Ukraine, PACE decided to apply political sanctions to it, i.e. 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. However, the Council of Ministers, the other arm of the CoE, did not sanction its Russian representatives.

At the same time, PACE did not 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 from PACE and decided not to submit credentials for subsequent sessions. Thus it has rejected full cooperation with the Assembly. In 2017, Russia stopped paying its mandatory membership fees for participating in the Co –  €33 mn annually; or 7% of the CoE budget.

What was the basis for sanctioning the Russian delegation?

PACE enacted political sanctions on Russia in a resolution adopted just after the occupation of Crimea and has reconfirmed them each year. As well, it has ruled that the sanctions can’t be removed unless Russia achieves progress in implementing other PACE resolutions calling to end its aggression in Ukraine.

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After Russia’s occupation of Crimea, so-called “referendum,” and annexation of the peninsula, on 11 April 2014 PACE adopted resolution 1990 which enacted political sanctions against Russia, declaring that Russia’s actions were “in clear contradiction with the Statute of the Council of Europe” and “the commitments Russia made when it joined the organization in 1996.” These sanctions have been prolonged each year. Additional resolutions have been adopted calling upon Russia to deoccupy Crimea, withdraw its forces, release hostages, and stop its repressions in occupied Crimea and aggression in Ukraine – 2034 (2015), 2063 (2015), 2067 (2015), 2112 (2016), 2132 (2016), 2133 (2016), 2198 (2018) and 2203 (2018).

Moreover, in Resolution 2132 (2016) “Political consequences of the Russian aggression in Ukraine,” the Assembly reminded Russia of all of the demands set up by PACE in previous resolutions and resolved that “only significant and measurable progress towards their implementation can form the basis for the restoration of a fully fledged, mutually respectful dialogue with the Assembly.”

Thus, PACE sanctioned Russia after the occupation of Crimea in 2014, and upheld these sanctions in many following resolutions.

How do we know that Russia is trying to make a comeback to PACE?

In 2017, there was a resolution adopted with the aim of allowing sanctions on Russia to be lifted, and now proposals of an Ad-hoc Committee practically enabling this are being rushed through in an expedited manner. Although none of these initiatives mention Russia by name, they are clearly a Trojan horse pretext for Russia’s unconditional return to PACE – i.e., without complying with any PACE resolution calling to end its aggression in Ukraine.

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In 2017, the Parliamentary Assembly of the Council of Europe adopted a resolution aimed at lifting political sanctions against the Russian Federation.  This initiative was effectively thwarted by an outlash from European intellectuals, Crimean Tatar leaders, and Ukrainian NGOs. But there are reasons to suspect that Russia will make another attempt to be reinstated in PACE by January 2019.

As PACE resolutions prevent Russia from regaining full powers in the body without deoccupying Crimea and getting out of Ukraine, Russia has been working on an alternative way to make a comeback – to change the current sanctions rules of the Council of Europe under the codenames of “harmonization of the Assembly’s and Committee of Minister’s rules” and “reform of the sanctions mechanism.”

These changes would guarantee that its delegation wouldn’t be sanctioned if it reapplied to take part in the work of the Assembly. But they would also make it virtually impossible to apply sanctions in the future against any member-state causing serious damage to the protection of human rights in Europe.

There is reason to suspect that these changes are being made through the report of an Ad hoc Committee “On the role and mission of the Parliamentary Assembly” (AS/Bur/MR-PA (2018) 8). The PACE Bureau forwarded this report to two other committees – dealing with Political Affairs and Rules of Procedure – for indefinite consideration, EXCEPT for two issues which are to be discussed at the October 2018 session:

  1. i) Proposals aimed at maintaining, changing or supplementing the Rules governing ratification or challenging of credentials and/or representation or participation rights of national delegations;
  2. ii) Proposals regarding the voting rights of members or the voting procedures of the Assembly.

Both of these proposals are crucial for the issue of Russian sanctions in PACE. Plus, they were artificially prioritized by the Bureau among other issues which are to be further considered without rush.

Despite the fact that the deadline for the presentation of the report of the Ad hoc Committee was set for December 2018, the preparation work was being carried out at in accelerated mode, including by former PACE Chairman Mr Michele Nicoletti. The rush has a good reason: if rules of procedure are not amended at the October 2018 session of the Assembly, it will be impossible for Russia to return to PACE in January 2019. And, respectively, if this does not happen, the entire year will be lost and the next opportunity will only occur in January 2020.

How exactly would the changes allowing a Russian comeback look like? 

The changes to PACE’s procedures are outlined in a draft resolution titled “Strengthening the decision-making process of the Parliamentary Assembly concerning credentials and voting” and will be voted for on 9 October 2018. They will make the mechanism of implementing sanctions more complicated. Now it requires a simple majority of votes of those present at the plenary session. But there is a proposal to increase this threshold to 2/3 of the delegates present, which in essence would make it much easier for a country such as Russia to undermine the extension of sanctions against it. As well, the resolution also proposes to change the number of votes necessary to initiate the introduction of any sanctions.

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First, the number of delegates needed to launch the process of applying sanctions will change. Now, one needs 30 delegates to support the initiative. The resolution proposes changing this to ⅙ of the delegates present. This gives the country under threat of sanctions more leeway to manipulate the proportion and block the sanctions resolution in its very conception. Right now, to launch the process of applying sanctions, 30 delegates need to support the initiative. After the initiative, a project of the resolution is prepared, which is adopted by a simple majority. Then sanctions will apply. The resolution proposes that the initiative must be supported by 1/6 of the present delegates. If earlier one was sure that the initiative would be supported if one had managed to secure the support of 30 delegates, now it is impossible to calculate whether it will get through, as it is impossible to know how many delegates will be present during the vote. Let’s say you approximate that 30 votes in favor will be 1/6 of those present during the vote. The potential victim of sanctions can mobilize its supporters to show up, and your 30 is no longer 1/6. The initiative failed.

Second, resolutions will need more votes. Now, a resolution needs a simple majority of votes. This is proposed to be increased to ⅔ of the delegates present. This will make it more difficult to introduce sanctions not only on Russia but on any other country, as forming a coalition of ⅔ votes is nearly impossible in PACE. Resolutions are usually adopted by 150 delegates (votes for and against). Each delegation has a certain number of votes – some have 12, some 3, and some 6. The Russian delegation has 18 votes – which is more than 10% from 150. And finding the necessary votes among countries which have to make up the 1/3 necessary to disrupt the adoption of sanctions should not be difficult. As well, the ⅔ threshold would disproportionately benefit larger countries like Russia – their larger amount of delegates would allow evading sanctions thanks to sheer numbers.

Although these changes are complicated and at first glance might seem innocuous, they will make it much more difficult to apply sanctions against any country. As they are being rushed through before the January 2019 session, when sanctions against the Russian delegation will be reconsidered, it is obvious that they are being made only to allow the return of the Russian delegation.

Who are the proponents of Russia’s unconditional return to PACE – and what do they say?

Among those who support Russia’s comeback are the organization’s Secretary General Thorbjørn Jagland as well as far-left and far-right political forces. As well, worrying signals come from the German delegation. They argue that the CoE is hard-pressed to meet its financial needs after Russia stopped paying its membership fees in the summer of 2017, declaring it will resume its financial obligations when sanctions on Russia are lifted. As well, they say that if Russia withdraws from the CoE, this will have a negative impact on the human rights of ordinary Russians.

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At the formal level, Russia and its advocates are pursuing the idea of amending PACE Rules of Procedures so as to eliminate the possibility of imposing sanctions or make it virtually impossible to apply them. The inability of PACE to impose sanctions will be a guarantee for Russia that it can continue its policies without any consequences.

Their main argument is that Russia may withdraw from the CoE altogether, and its membership in CoE allows the Russian population to lodge appeals to the European Court for Human Rights – which is a plus for a country with a lack of rule of law.

As well, Russia’s membership fees to the CoE, which it stopped paying in the summer of 2017 “until the delegation of the Federal Assembly of the Russian Federation to PACE is fully and unconditionally restored in its rights.” is being raised as an argument. Although this act constitutes a direct violation of Russia’s obligations under the CoE Statute and is the financial blackmailing of the Organization. Those trying to bring Russia back to PACE at any cost believe that once Russia pays its contribution, everything will be back to normal. And Moscow did promise in a public statement, “Russia reaffirms its commitment to honoring all its financial obligations from the moment when it was forced to suspend payments, once the rights of the delegation of the Federal Assembly of the Russian Federation are fully restored within PACE.”

So maybe we should make a compromise with Russia for the sake of ordinary Russians?

Russia’s return to PACE – or withdrawal from the CoE – would make little difference for ordinary Russians. Russia already complies with the decisions of the European Court of Human Rights only when it suits it – so it has already effectively nullified the protection of its citizens by this institution and it makes little difference if Russia would withdraw from the Court. As well, it has violated many other human rights commitments it entered upon when joining the CoE – so the CoE should be showing additional strictness, not removing sanctions.

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The proponents of Russia’s unconditional return to PACE argue that there is a risk Russia might withdraw from the Council of Europe altogether, which would prevent its citizens from lodging appeals to the European Court of Human Rights (ECHR). However, this argument is sufficiently weakened when one considers that Russia has ALREADY abolished the protection of its citizens by this institution.

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 (ECHR). This is a clear violation of Article 46 of the European Convention on Human Rights which obliges Russia “to abide by the final judgment of the Court” without exception.

Moreover, Russia has failed to honor many other human rights commitments it entered into upon joining the CoE, which further warrants a sanction. Indulgence with respect to Russia in response to a series of human rights violation will serve the Russians citizens no favor.

Finally, it’s extremely unlikely that Russia will pull out of the Council of Europe, as this would contradict its foreign policy goals to remain an influential country on the global arena. It has been, however, sending contradictory messages in this regard. H.E. Mr. Ivan Soltanovskiy, Russian Ambassador to the Council of Europe, made it clear in his interview with Izvestiya newspaper of 13 September 2018 that a withdrawal is not on the agenda of Russian authorities. Only one week later, Valentina Matviyenko, Chairwoman of the Russian Federation Council, stated that Russia is seriously considering withdrawing from the Council of Europe. Ukraine’s MFA considers that such contradictory messages with a distance of one week is blackmail intended to gather more votes during the October session.

Would the Council of Europe have to expel Russia for not paying its membership fees?

Although it has been argued that the Council of Ministers would have to request Russia to withdraw from the Council of Europe if Russia fails to fulfill its financial obligation for a period of two years, this is not the case. Nowhere in the Statute of the Council of Europe is it said that not paying membership fees can be a reason for exclusion from the Council of Europe.

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The Statute of the Council of Europe provides for two completely different procedures: i) suspension of rights in the Committee of Ministers and in the Parliamentary Assembly and ii) the request to withdraw from the Council of Europe.

Article 9 of the Statute regulates the suspension: “The Committee of Ministers may suspend the right of representation on the Committee and on the Consultative Assembly of a member which has failed to fulfill its financial obligation during such period as the obligation remains unfulfilled.”

The suspension implies that a member may be deprived of the right of representation in two statutory bodies of the Council of Europe while remaining a member of the organization as a whole. Therefore, such a member will remain part of the European Court of Human Rights, all conventions it is part of, and shall continue to implement its obligations and commitments undertaken within the framework of the Council of Europe.

Article 8 of the Statute regulates the exclusion from the Council of Europe: “Any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7.”

Article 3 stipulates, “Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realization of the aim of the Council as specified in Chapter I.”

Therefore, failure to fulfil financial obligation by a member shall not be considered as a reason for the request to a member to withdraw from the Council of Europe.

Wouldn’t Russia’s unconditional return to PACE contradict the values which the Council of Europe was made to protect?

Long answer made short – yes. Reinstating a Russia which has not changed its behavior would violate the basic principles of the Council of Europe. As well, it would violate PACE’s own resolutions.

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The sanctions imposed on the Russian delegation are justified by Russia’s behavior. The illegal 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 8.2a: “The substantive grounds on which credentials may be challenged are serious violation of the basic principles of the Council of Europe mentioned in Article 3 of, and the Preamble to, the Statute…”.

In its turn, Article 3 of the Statute reads as follows: “Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realization of the aim of the Council as specified in Chapter I”.

Russia’s aggressive actions against European legal order and Ukraine were approved by both chambers of the Russian Parliament. Russia ignores the rule of law by annexing and occupying parts of Ukraine. Russia also systematically violates human rights, including by holding political prisoners. Therefore, its unconditional return to PACE without the correction of Russian policies will be in contradiction to the values and principles of the CoE.

Europeans cannot disregard the violations of the international law by the Russian Federation while deciding on the future of PACE relations with Russia. Any decision aimed at reinstalling Russia at PACE should be based on the Council of Europe Statute and values rather than on fears of financial consequences of failure of certain state to honor its commitments and obligations. If the Council of Europe allows Russia to succeed in blackmailing on its unconditional return, it deprives itself of its own authority. And a weak Council of Europe in this case will lose its full authority among Europeans. This would be a drama and tragedy for the Council of Europe.

If Russia did return, what consequences could we expect for PACE and the Council of Europe?

The Council of Europe would lose its ability to act as a human rights instrument. It would be all but impossible to sanction any violating state for its misdemeanors.

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First of all, the Council of Europe will compromise and discredit itself if it makes a decision based on financial blackmail and not on its own values. Against the background of a loud corruption scandal in PACE it could trigger a full-scale crisis in the organization – a crisis of values and of trust as well.

Additionally, a change to the Rules and Procedures means the Monitoring procedures that give real power and influence to the Parliamentary Assembly will be limited. Consequently, the Assembly would not respond to violations taking place in any member State in a way that would motivate the offender to correct its policies.

According to Dmytro Kuleba, Ukraine’s representative to the CoE, Russia’s unconditional return will undermine the CoE’s potential to be an instrument for protecting human rights in Europe – as sanctions against violating states would be complicated to the extent that using them would be practically unfeasible, and the CoE would lose its moral right to make remarks to violating states after it betrays its principles.

Have sanctions on a delegation ever been lifted in such a way in the history of PACE?

In such a way, no. This will be a first.

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The only case that comes close is the incident with a right-wing junta taking over Greece in 1967 and the enactment of the Papadopoulous dictatorship and a regime of repressions and continuous civil rights abuses. The Scandinavian countries and the Netherlands accused Greece of violating most of the human rights protected the European Convention on Human Rights, but the country left the CoE voluntarily before it could be sanctioned officially. After the junta members were arrested and a trial described as “Greece’s Nuremberg” was held against them, Greece once again became a member-state of the CoE in 1974 and after seven years, the delegation returned to PACE. However, this case differs from the one with Russia – as no principles were compromised in Greece’s readmission.

 

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