Petr Tolstoy, the vice-speaker of the State Duma said this week that Russia should “revisit its role” in the Council of Europe and consider leaving it, should the CoE initiate a procedure against Russia due to the jailing of Alexey Navalny. Tolstoy added that Russia could, in this case, create its own version of the European Court of Human Rights. This is a bluff and the only good answer is for the Council of Europe to call it.
The present dispute started when, following Navalny’s verdict in the “Yves Rocher” case on February 2, the European Court of Human Rights (ECtHR), which operates under the Council of Europe, called on Russia to release Navalny immediately, under its so-called Rule 39, an emergency mechanism that allows the ECtHR to take interim measures in order to protect an applicant before considering their case on merit. Russia is obliged to carry out this decision, but there are no hard deadlines or automatic sanctions if the Russian authorities refuse to do so. Konstantin Chuychenko, Russia’s minister of justice, as expected, flatly refused to carry out the decision. This led to calls to sanction Russia at the level of the CoE Committee of Ministers, which may mean the suspension or expulsion of Russia from the organization under Articles 8 and 9 of its Statute. This threat ultimately led to Tolstoy’s statement.
This is all eerily similar to something that happened two years ago. In June 2019 the Parliamentary Assembly of the Council of Europe (PACE) adopted the De Sutter report, a document that was the precondition for the Russian delegation to continue its work in the assembly, participate in the election of the next secretary general and, most importantly for the institution, unlocked several years’ worth of financial contributions from Russia to the CoE budget. The move was widely presented as a compromise between Russia and the Council of Europe – or rather, France and Germany: Russia would stay in the organization, which would benefit both Russian citizens, who would continue to enjoy the jurisdiction of the ECtHR and the CoE, which could count on Russia’s relatively sizable (though in real terms, fairly small) contribution to the organization’s budget; PACE, in exchange, would remove sanctions imposed on the Russian delegation after the 2014 annexation of Crimea, acknowledging that they did not work, and allow a large Russian diplomatic delegation operate (and network) in the middle of Europe.
Only, the Russian delegation was not under sanctions. The suspension of the Russian delegation’s rights effectively lapsed in 2015, which meant that Russia could simply have sent new deputies to the assembly. Instead, from 2016 on the Russian government started acting as the wronged party, and demanded PACE to remove this kind of sanction from its toolkit entirely if it wanted the Russian delegation to participate in the work of the assembly, and Russia to pay its dues. A classic case of blackmail, which unfortunately, in another classic case of bad diplomacy, the French and German government gave in to.
Supporters of the move claimed that the CoE shooting itself in the foot was in fact worth it, given the importance of the ECtHR to Russian citizens and organizations. And there is certainly truth in this: Russia has a large backlog of unimplemented ECtHR judgements, but it is certainly not alone with this; and in recent years it has seen a positive shift in the implementation of judgements in areas such as the rights of the disabled and medical care for the incarcerated. ECtHR judgements also create legal precedents that Russian lawyers can use and that provide, at the very least, moral justice to Russian citizens. However, as I have pointed out back in 2019, the devil was in the details. Russia had a larger backlog of unimplemented judgements on serious human rights violations than any other CoE member; since 2015 it had had a low that allowed Russia’s Constitutional Court, controlled by the president, to disregard ECtHR judgements at will. To weaken Europe’s most prominent human rights organizations for questionable future gains, which were almost entirely dependent on the goodwill of the Russian government, was clearly a bad deal.
What has happened then should have made this clear to everyone involved: the harsh crackdown on Moscow protesters in 2019, just weeks after the De Sutter report; the 2020 constitutional amendments, which elevated Russia’s cherry-picking of international law to a constitutional norm; the poisoning, the arrest and the sentencing of Alexey Navalny and the ensuing crackdown on not just the active opposition, but increasingly any form of dissent. This should be more embarrassing for the EU member states that supported the 2019 deal than the recent humiliation of EU high representative Josep Borrell in Moscow. Yet, unlike in that case, we haven’t seen even a reluctant recognition of this error.
The ongoing dispute between the Council of Europe and the Russian government will be a test of whether the democracies that still make up the majority of the CoE have learned the lesson from their mistake in 2019. This time, they should not budge. They should make it clear to the Russian government that Russia can choose between obeying the rules of the organization, and leaving it. If, as Tolstoy claims, Russia is ready to set up its own court of human rights instead of the ECtHR, it should be free to do so, once it has left the organization, but it should not expect it to seriously rival the Strasbourg court any more than the Eurasian Economic Union is a serious rival to the EU. Furthermore, even in this case, Russian government would not have complete freedom to define its own human rights standards: it would still be bound by the Paris Charter of OSCE, another document that lays down core standards of human rights.
One cannot blame the Russian government for trying something that has worked before. However, if the European democracies for whom the survival of the Council of Europe is important won’t learn from their mistakes, the blame is on them.