1. THE CONTEXT
Why is there a need to provide a clarification with respect to participation, or rather the prolonged non-participation, of Russian parliamentarians in the work of the Parliamentary Assembly of the Council of Europe (‘the Assembly’ or PACE) after the annexation of Crimea by Russia in March 2014 ? There are principally two inter-related reasons for so doing, both tied to the accuracy of (mis)information that had, at that time, circulated in this respect.
The first concerns a misunderstanding of what ‘sanctions’ had actually been imposed by PACE in this respect. Petra Roter, when referring to the uneasy relationship between Russia and the Council of Europe which ‘turned sour almost overnight due to Russia’s foreign policy’ relating to the crisis in Ukraine and the annexation of Crimea, indicated erroneously that ‘it was PACE that went the furthest in the form of non-recognizing the credentials of the Russian delegation to PACE.’[1]
The second point that needs clarification relates to the inappropriate suggestion that it was the Parliamentary Assembly’s ‘fault’ that Russian parliamentarians had not been able to participate in, inter alia, the election of judges onto the European Court of Human Rights.[2] In a statement made by the Russian Foreign Minister, Sergey Lavrov, when he met the Council of Europe’s then Secretary General back in June 2018, Mr Lavrov indicated that the Assembly was to blame for the fact that ‘more than one-third of the judges at the ECHR have been elected without the participation of a delegation of Russian lawmakers’,[3] later specifying, in an interview in October 2018, that since our PMs were stripped of the right to vote, the Parliamentary Assembly has already elected, if I am not mistaken, 24 judges to the European Court of Human Rights. And the total number is 47. So, the majority of judges in the European Court are judges elected in the absence of the Russian votes. Similarly, a new Commissioner for Human Rights was elected without the Russian MPs. Next June, a new secretary general of the Council of Europe will be elected. So, due to the suspension of our right, which is granted to us by the Statute of the Council of Europe, to participate in these votes, the above functionaries of the Council of Europe (the judges, the commissioner for human rights and soon, if this issue persists, the secretary general) will, in fact, not be legitimate for us.[4]
As will be explained, the Assembly had not — indeed, has never — deprived the Russian PACE delegation of its credentials. The absence of the Russian delegation in PACE was due to the Russian Parliament’s own decision not to submit credentials for its delegation to sit therein ; only members of the Assembly belonging to delegations whose credentials have been ratified by the Assembly may take part in the elections referred to by Mr Lavrov.[5]
2. RUSSIAN PARLIAMENTARIANS IN THE PARLIAMENTARY ASSEMBLY OF THE COUNCIL OF EUROPE… AND THEIR ABSENCE
A. Decisions in 2014 and 2015
For present purposes, it is not necessary to provide an overview of the procedure leading up to the Committee of Ministers’ invitation for Russia to become a Member State of the Council of Europe, specifying that the Russian PACE delegation be composed of 18 parliamentarians, as well as the latter’s participation in the Assembly’s work since 1996.[6] Suffice it to note that in April 2014 and again in January 2015 the Parliamentary Assembly decided to deprive Russian parliamentarians of certain of their rights in the Assembly, including voting rights, in response to Russia’s annexation of Crimea. But it did not take the drastic decision to divest the delegation from continuing to participate in its work.[7] In response, Russian parliamentarians initially decided not to involve themselves in the Assembly’s work and as of 2016 the Russian Parliament did not submit until 25 June 2019 credentials of its delegation to the Assembly (see section 2.B. below).
Of particular interest, in this connection, is the Assembly’s approach to the use of ‘sanctions’ with respect to parliamentary delegations. When adopting the first of its Resolutions on this subject in April 2014, the Assembly stressed that political dialogue should remain the preferred way to find a compromise, and there should be no return to the pattern of the Cold War. Suspension of the credentials of the Russian delegation would make such a dialogue impossible, while the Assembly constitutes a good platform for keeping the Russian delegation accountable on the basis of Council of Europe’s values and principles. The Parliamentary Assembly has the power and the opportunity in this veritable crisis to confront face-to-face one of its member States — the Russian Federation — with questions and facts and to demand answers and accountability.[8]
B. Since then…
Hence, formally as of January 2016 until 25 June 2019, that is, for nearly three-and-a-half years, there had been no Russian delegation in the Assembly. During that period, and unlike what was often erroneously indicated in the media, no ‘sanctions’ had been imposed by the Assembly with respect to Russian parliamentarians ; the absence of the Russian delegation in PACE was the result of the Russian Parliament’s decision not to participate in the Assembly’s work. In other words, the Russian Parliament, of its own volition, had decided not to send a delegation to the Assembly despite express invitations for it to do so prior to the Assembly sessions for the years 2016, 2017, 2018 and 2019.[9]
The Council of Europe’s Statute obliges all national parliaments to submit the credentials of their delegations at the opening of each yearly ordinary session[10] and in line with current regulations credentials must be submitted every January. Non-submission of credentials automatically excludes a delegation from the Assembly’s work for the whole year.[11]
Based on provisions of its Rules of Procedure dating back to 1964, which have been modified and adapted over the years, the credentials of a parliamentary delegation, be it on procedural or substantive grounds, may be challenged or reconsidered by the Assembly if fundamental principles of the Council have not been respected by a Member State, if there is a persistent failure to honour its obligations and commitments or if there is a perceived a lack of cooperation in the Assembly’s monitoring procedure.[12] As explained by the Secretary General of the Assembly, over the last 70 years the Assembly has been extremely reluctant to turn down credentials.[13] Even if the credentials of delegations have been challenged in quite a number of instances[14]— only twice-in respect of the parliamentary delegations of Greece in 1969 and Turkey in 1981 — has this actually occurred.[15] Hence, when serious infringements of Council of Europe norms are at issue, instead of turning-down or annulling credentials, the Assembly can instead restrict the participation of parliamentarians in certain activities (for example, to be appointed a rapporteur, chair a committee), or to restrict their rights in representing the institution (for example, within the Assembly itself or one of its bodies, external representation). The deprivation of a number of rights of members of a national delegation on substantive grounds has arisen only on three occasions in the history of the Assembly, each time with respect to the parliamentary delegation of Russia : in 2000 (suspension of the right to vote in plenary due to the second Chechen war), in 2014 (illegal annexation of Crimea/action with regard to Ukraine) and in 2015 (continued illegal annexation of Crimea and the conflict in eastern Ukraine).[16] As discussed in Section 3, the Russian delegation returned to the Assembly on 25 June 2019.[17]
3. RELATED ISSUES
A. The Committee of Ministers and the Parliamentary Assembly of the Council of Europe
The Committee of Ministers may suspend or expel a State from the Council for violating Council of Europe standards (Article 8 Statute), which it has never done,[18] whereas the specific issue of penalties, or (internal) sanctions, that the Assembly can apply to parliamentarians is governed by its Rules of Procedure (Article 28(a) Statute).[19] Expulsion or suspension by the Committee of Ministers of a State which seriously violates the Council’s norms is a politically complex exercise which necessitates a two-thirds majority of representatives casting a vote and a majority of representatives entitled to sit on the Committee. In so far as the Assembly is concerned, suspension of the right to representation therein is governed by its Rules of Procedure, which is a modus operandi distinct from that of the Committee of Ministers’ statutory right to suspend or expel a State from the Council of Europe (although its Resolution (51)30 obliges it to consult the Assembly first). The Assembly’s procedure has evolved and solidified unopposed over a period of well over 50 years, and can be seen as a well-established self-regulating parliamentary variant, recourse to which the Assembly can have independently of the statutory powers vested in the Committee of Ministers.[20]
In this connection, it has recently been suggested, erroneously, that the competence to exclude or sanction Member States, including membership of parliamentary delegations, is the exclusive prerogative of the Committee of Ministers.[21] This suggestion must be forcefully rejected, simply because the Assembly rules on the questioning of credentials are based on a long-standing and unopposed (except by Russia recently) practice, accepted by all Member States and the Committee of Ministers.[22]
Institutional rivalry between the two bodies is frequent, but their statutory relationship is premised on common purpose and effective cooperation, despite their fundamentally different composition and manner of functioning. The Committee of Ministers is composed, de facto, principally of diplomats and it is often unwilling or incapable, due to its propensity to seek consensus rather than to vote, to take a principled ‘open stand’ when confronted with major human rights violations in Member States.[23] The Assembly exercises a degree of democratic control over the Committee of Ministers. Composed of national parliamentarians it can and often has strongly reacted to unacceptable infringements of Council of Europe standards.[24] An analysis of the manner in which the conflict in Chechnya was dealt with by both statutory organs, in the context of major human rights violations committed there by the Russian security forces, which resulted in the suspension of the voting rights of the Russian PACE delegation in April 2000, is instructive in this respect.[25]
B. Budgetary and Other Considerations ; Blackmail ?
As had been amply reported in the media, Russian parliamentarians, as well as high-ranking State officials made statements to the effect that their country’s parliamentary delegation would not return to the Assembly unless the latter remove from its Rules of Procedure all the above provisions permitting the challenge of credentials and the possible sanctioning of national delegations.[26] In June 2017 Russia suspended the remainder of its 2017 budgetary contribution to the Council of Europe until its demands were met.[27] The suspension of the country’s budgetary contributions was maintained in 2018, and Russia also withheld the contribution of its first part-payment for 2019, due in March.[28] Indeed, at the time of the Assembly’s June 2019 part-session Russia owed the Council of Europe about 54.7 million euro with respect to contributions for 2017 and 2018, it being understood that, if this debt plus the annual contribution of 32.6 million euro for 2019 (+ interest of 1 per cent per month on sums due) were not paid by the end of June 2019, the total sum due would be in the region of 100 million euro (a deadline by which all States’ budgetary contributions for 2019 are meant to be effectuated).Non-payment by Russia would then have necessitated the ‘activation’ of Article 9 of the Council’s Statute by the Committee of Ministers.[29]
This non-payment together with, more or less discreet, signals given with respect to the possible withdrawal of Russia from the Council, caused considerable consternation, not least with the disastrous prospect of Russia having to withdraw from the European Convention on Human Rights.[30] As concerns the difficult financial consequences non-payment would have had (and was already having), suffice it to recall the Committee of Ministers’ maintenance, for a number of years, of a policy of ‘zero nominal growth’, which meant that no allowance was made for inflation (thereby actually reducing the Council’s budget), as well as the Turkish authorities’ decision to withdraw Turkey’s ‘major contributor’ status which it had assumed in 2016. The cumulative financial consequences of these decisions, plus Russia’s continued refusal to pay its budgetary contributions, would have resulted in an unprecedented short-fall in the Council’s finances, reduction of logistical support for the European Court of Human Rights and key monitoring bodies, the suspension of a number of (human rights) programmes, as well as loss of jobs for staff members.[31]
As already indicated, the Russian Parliament did not submit credentials of its delegation prior to the opening of the Assembly’s session in January 2019. This was followed by an intensive period of behind-the-scenes negotiations which resulted in a ‘decision’, taken by the Committee of Ministers at its meeting in Helsinki on 17 May, in which it ‘would welcome that delegations of all Member States’ take part in the Assembly’s forthcoming part-session, having regard to the importance of the election of a new Secretary General and judges to the European Court of Human Rights.[32] The Parliamentary Assembly then decided at its June 2019 part-session to ‘bend’ its Rules of Procedure on 25 June 2019,[33] which resulted in the return of the Russian PACE delegation into PACE whose members participated in the election of the Council’s Secretary General and two judges to the European Court of Human Rights on 26 and 27 June 2019.
The total contributions of all 47 Member States to the Council of Europe’s budgets for the years 2019 and 2020 are in the public domain and can be consulted online.[34] With reference to Russia’s non-payment of its contributions (debt) to the Council since June 2017 : In the first week of July 2019 the Russian authorities paid their financial dues to the Council for 2019. A few months later Russia acquitted most of its other financial obligations, namely the debt owed for the years 2017 and 2018 (53.2 million euro from a total due of 54.7 million), but interest payments for the sum of 8.8 million euro remain unpaid.
4. CONCLUDING OBSERVATIONS
The decision taken by the Assembly on 25 June 2019 to permit, exceptionally, a derogation from its Rules of Procedure in order to facilitate the acceptance (‘ratification’) of the Russian delegation’s credentials[35] was followed, on the same day, by challenges on both substantive and procedural grounds of the still unratified credentials of the Russian parliamentary delegation.[36] As concerns the former, which was debated in plenary on the basis of a report submitted by the Assembly’s Monitoring Committee, the challenge was not successful.[37] As concerns the challenge on procedural grounds, sent to the Rules Committee, the Committee was not able to adopt a draft resolution for report in plenary and this challenge will lapse with the opening of the Assembly’s forthcoming session in January 2020.[38]
Was the return of the Russian delegation a pragmatic resolution of a difficult situation for the Council of Europe and its Member States, or ought it to be seen as a serious dent in the credibility of the Assembly for not having immediately (re)imposed ‘internal sanctions’ when ratifying the Russian delegation’s credentials ? Probably both. As concerns Resolution 2292 (2019) ‘Challenge, on substantive grounds, of the still unratified credentials of the parliamentary delegation of the Russian Federation’,[39] I can do no better than refer to the ‘principled stand’ taken and votes cast by, in particular, Lord (Donald) Anderson, Boriss Cilevičs and Sir Roger Gale in the debate leading up to the adoption of this Resolution on 26 June 2019.[40]
Would the Russian parliamentary delegation have remained in the Assembly, or would Russia have continued to abstain from paying its budgetary contributions to the Council of Europe if ‘internal sanctions’ were to have been (re)imposed on Russian parliamentarians as of 26 June 2019 – as they ought to have been ? Of relevance, in this connection, is the fact that in its Resolution 2287 (2019) of 25 June 2019, the Assembly amputated itself of one of its key ‘internal sanctions’ by removing the possibility to suspend parliamentarians from participating in the adoption of resolutions and/or recommendations.[41]
The convoluted manner in which the return of the Russian PACE delegation into the Assembly, after a self-imposed exclusion of nearly three and a half years, necessitated an explanation, but at what price was this achieved ? One must, of course, recognize the undoubted beneficial aspects of the country’s membership of the Council of Europe, now stretching over a period of nearly 24 years despite difficulties and major shortcomings.[42] But the present situation must also be seen in the wider political context of the (continued) illegal annexation of Crimea, in particular, and the Assembly’s role as ‘the conscience of Europe’.