Parting Paths – Russia’s Inevitable Exit From the Council of Europe

Since 24 February 2022, Europe has been shaken by the Russian invasion of Ukraine. This blatant violation of international law led to the suspension of Russia’s rights of representation at the Council of Europe (CoE). Andrew Forde reported on the red lines on this blog that Russia overstepped and some of the implications for the CoE as a regional organization. It now becomes apparent that Russia intends to discontinue its membership in the CoE and to denounce the European Convention on Human Rights (ECHR, the Convention) before it is forced out under the Statutory Article 8 process which is already underway.

Against this background, we briefly revisit the only precedent so far that the CoE has witnessed – the so-called Greek Case of 1969. Further, we shed some light on what Russia’s exit from the CoE means for its rights and obligations under the ECHR. We conclude that although there is likely to be several months grace between a formal notification of withdrawal/ denunciation, there appears to be little incentive for Russia to engage with the Court or execution of judgments process, rendering its withdrawal de facto effective immediately…a grim outlook.

The Greek Case as The Only Precedent in the History of the Council of Europe

There is only one other example in the history of the Council of Europe where a member State quit the organization: the Greek case of 1969.

In 1967, Greece was the first member State of the CoE to fall prey to a coup d’état. Instead of elections, which had been scheduled for May 1967, mass arrests, martial law and censorship were imposed by the military. In May 1967, Greece informed the Secretary General of the CoE of its derogation from the Convention under Article 15 ECHR. The Greek government referred to communist demonstrations and strikes, which allegedly had brought the country to ‘the brink of anarchy’.

Two sets of inter-State proceedings under former Article 24 ECHR (now Article 33 ECHR) against Greece were brought by Denmark, Norway, Sweden and the Netherlands in response thereto. In the second set, where allegations under Article 3 ECHR were more cental, the Netherlands did not participate. A list of all applications and relevant decisions is here.

The now defunct Commission drew up a 1,100 page report. The horrific methods of torture and ill treatment as well as the suffering of individuals at the hands of their tormentors emerge clearly.The Greek case marked the first inter-State case where violations of the Convention were found at all, including violations of Article 3 ECHR, the prohibition of inhuman and degrading treatment and torture. In November 1969, the final report of the Commission had been leaked to the European press, Le Monde and The Sunday Times revealed its contents. In this tense environment, the Committee of Ministers met in December 1969 in order to discuss a possible suspension of Greece from the Council of Europe. On 12 December 1969, the Greek foreign minister announced the Greek withdrawal from the Council of Europe under Article 7 CoE-St. Formally, Greece was a member of the Council of Europe until 31 December 1970.

When Greece was poised to annex Cyprus, Turkey intervened in the island in 1974. Both Turkey and Greece were members of NATO at the relevant time. The Greek colonels were ultimately ousted.

Greece was readmitted to the Council of Europe and it re-ratified the ECHR in 1974, when democracy had been restored, thus making it the only Council of Europe Member State to have ratified the ECHR twice.

Maria Hary Becket merits credit for her incessant work in this context, along with her husband, James Becket. A conference co-organized by Vassilis Tzevelekos, Willem Ledeboer and others that took place in late 2019 in Athens commemorated the case 50 years later; the recording is available here.

Russia Today

Article 3 of the Statute of the Council of Europe specifies members must adhere to “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 realisation of the aim of the Council as specified in Chapter I”. On 25 February, the Committee of Ministers established that Article 3 had been seriously violated by Russia.

Article 7 of the Statue of the Council of Europe provides that

“[a]ny member of the Council of Europe may withdraw by formally notifying the Secretary General of its intention to do so. Such withdrawal shall take effect at the end of the financial year in which it is notified, if the notification is given during the first nine months of that financial year. (…)”

The decision of the Committee of Ministers to suspend Russia’s rights of representation did not remove any of Russia’s obigations vis-à-vis the ECHR, indeed it explicitly notes that Russia remains subject to its obligations under the Convention and retains certain rights to engage with the Commitee of Ministers (CM) Supervision of Execution of Court judgments meetings on cases to which it is a party.

Caroline von Gall argues that if Russia does not quit the organization by itself, a move which was expected by for example by Kanstantsin Dzehtsiarou, the Federation should be expelled in any event.

Article 8 of the Statute of the CoE authorizes the CM to request a State to withdraw that has seriously violated Article 3 of the Statute, a process which formally began on 25 February. The CM can also decide to expel a member, though it is unlikely to do so without consultation with the Parliamentary Assembly of the Council of Europe (PACE). On 10 March 2022, the Committee of Ministers decided to do just that, and an extraordinary PACE session will be held on 14/15 March on the matter. In all likelihood, the conclusion will be to move to expel Russia from the CoE.

What does Ruxit mean for the European Convention on Human Rights?

The European Convention on Human Rights is an international treaty which was concluded under the auspices of the Council of Europe. Article 58 § 3 of the ECHR details that “[a]ny High Contracting Party which shall cease to be a member of the CoE shall cease to be a Party to this Convention under the same conditions.

Russia will almost certainly notify the CoE of its intention to denounce the ECHR with a view to leaving the CoE before the end of the financial year 2022.

Unlike many other human rights treaties, the ECHR contains an exit clause in Article 58 ECHR. The provision allows to denounce the Convention with six months notice. Article 58 § 2 ECHR makes it clear that Russia remains bound to the Convention for at least six months following notification of intention to denounce.

On the other hand, the European Court of Human Rights continues to have temporal jurisdiction over the cases against the Russian Federation already on the docket. At present, Russia accounts for 24.8% of pending applications before the Court. Indivduals and States can still bring or join cases (as Isabella Risini argued here) brought within the the timeframe the denouncement becomes legally effective. Russia is also party to by far the highest proportion of leading and repeteitive cases subject to formal Supervision by the CM (e.g. 218 in 2020). Further ramifications of Ruxit for the Court have been detailed by Kanstantsin Dzehtsiarou.

A Grim Outlook

Kushtrim Istrefi has already reflected on the further ramifications of Russia leaving Strasbourg. Certainly, individuals under the jurisdiction of the Russian Federation will no longer be able to apply to the Court. This includes those who might be considered to be under the effective control of Russia, such as in parts of Ukraine (notwithstanding the challenges the Court might face in establishing jurisdiction under the “active hostilities” limitation proposed in Georgia v. Russia II). The only exception would be rather hypothetical, where a Russian citizen might raise a case against another CoE member State based on very specific circumstances.

The ECHR and its substantive protocols outlaw the death penalty, and a moratorium on its use is a well-recognised minimum standard for membership of the CoE. Russia introduced a moratorium in 1996, but even after 25+ years of membership, it never repealed provisions allowing for it in the Constitution or the Penal Code. Politicians have already mooted the potential lifting of the moratorium to allow for the death penalty.

This would pose a great danger, in particular to Prisoners of War from Ukraine who may face criminal charges in Russia. It may also affect those considered to be political dissidents such as Alexei Navalny, so-called foreign agents, and many others. Given Russia’s riding roughshod over the UN Charter, the ECHR and the Helsinki Final Act, there is no other international or domestic instrument which would hold Russia back.

There are many open questions remaining, including whether Russia would be allowed to continue its counterapplication against Ukraine it initiated in the summer of 2021 and what becomes of other pending or ongoing individual or inter-state proceedings, and judgments pending execution.

In the Greek case, the inter-State proceedings factually were frozen with the withdrawal, but after the Commission had finalized its report, extensively documenting what was going on in Greece. There were no individual cases pending against Greece because it had not yet acceped the right of individual petition. In contrast, the situation with Russia is more complex as most of the inter-State and individual cases against Russia are ongoing. They are, also in contrast to the Greek case, ongoing before the European Court of Human Rights as a Court of Law and not, as back in the times, before the CM as a political organ. The Court was not involved at the time because Greece had not accepted the – at the time – optional jurisdiciton.

Concerning Georgia v Russia I, in late 2021, a memorandum of understanding about the payment of 10 Million Euro was finalized, but such a payment seems highly unlikely.

Conclusion – the limitations of international organizations

What has history taught us? The Greek transition back to democracy was not brought about by the CoE or the inter-State proceedings before the Commission. It was brought about by a profoundly changed reality on the ground, triggered by a failed attempt to annex Cyprus and a military intervention by its neighbor, Turkey. The two seminal inter-State applications predated the intervention by shedding light on the severity of the situation. It was ultimately the people of Greece who played the most powerful role in transforming their country, and choosing a path of democracy. However, the inter-State proceedings against Greece and the roughly 20,000 pages that document the Greek case are an important achievement of the Strasbourg system. The value of the fact-finding effort undertaken is hard to overestimate and should inform the ongoing reform on the inter-State mechanism. On the reform process see also the Symposium edited by Justine Batura and Isabella Risini.

Russia is not Greece. Russia is, until now, the largest member of the CoE, and its actions are at a scale, intensity and with an apparent intent not seen since the first half of the 20^th century. It seems clear that we must accept that Russia will leave the CoE, much to the detriment of its own people. We must hope that Russia will seek to rejoin the organization after a hopefully peaceful transition to peace and democracy, and it is our duty to ensure that Russian people understand that the prospect of regaining access to Europe’s human rights protection system remains, even in the face of an almost total rejection of the rule of law by the current administration.