New Factsheet on the Implementation of ECHR Cases Concerning Domestic Violence

Last week, the Council of Europe’s Department for the Execution of Judgments of the European Court of Human Rights has published a new thematic factsheet on cases related to domestic violence. Here is a brief description:

The present factsheet provides examples of general and individual measures reported by States in the context of the execution of 18 different judgments of the European Court of Human Rights related to domestic violence concerning: integrated policies; legal protection, victim support and effective investigations; measures of prevention and awareness-raising; and monitoring and data collection. It summarises measures reported by 12 member states.

This is the thirteenth in a series of thematic factsheets on changes to national law, policy and practice across Europe linked to the implementation of ECHR judgments.

Previous factsheets cover constitutional matters, effective investigations, freedom of religion, the environment, the independence and impartiality of the judicial system, children’s rights, freedom of expression, conditions of detention, LGBTI persons’ rights, freedom of assembly and association, migration and asylum and Roma and Travellers.

New Issue ECHR Law Review

The newest issue of the ECHR Law Review has just been published (vol. 3. issue 1). A number of its articles are dedicated to the special theme of the ECHR and climate change. These are the substantive articles and introductory editorial (some of which are in open access):

* Vassilis P. Tzevelekos and Kanstantsin Dzehtsiarou, 'Climate Change: The World and the ECtHR in Unchartered Waters'

* Tim Eicke, 'Climate Change and the Convention: Beyond Admissibility'

* Ole W. Pedersen, 'Any Role for the echr When it Comes to Climate Change?'

* Helen Keller and Abigail D Pershing, 'Climate Change in Court: Overcoming Procedural Hurdles in Transboundary Environmental Cases'

* Aikaterini Tsampi, 'The European Court of Human Rights and (Framework Convention on) Tobacco Control. A Relationship that Goes up in Smoke?'

* Paul Johnson and Silvia Falcetta, 'The Inclusion of Sexual Orientation and Gender Identity in Relationships Education. Faith-Based Objections and the European Convention on Human Rights'

* Nikos Vogiatzis, 'Second Advisory Opinion by the Strasbourg Court under Protocol 16. A Contextual Analysis'

ECHR Continues to Apply for Russia Until 16 September 2022

 

The European Court has made public today its decision about the date until when the Russian Federation, after having been ousted from the Council of Europe last week, is bound by the ECHR: 16 September 2022. The decision, adopted by the plenary Court yesterday (22 March), thus counts six months from then. Taking note of the plethora of events of last week on which we reported earlier on this blog, from the Parliamentary Assembly's and Committee of Minister's actions to the notification of Russia itself as well as the Court's President's decision of 16 March to suspend all applications against Russia, the Court has now cut what undoubtedly must have been a very complex Gordian knot. 

It must be noted that the Court mentioned two considerations underlying its decision. One is, not unsurprisingly of course, Article 58 ECHR, on denunciation and cessation. The other, is a long-standing principle of the Court's own interpretation of the European Convention, mentioned explicitly in this decision: 

"the object and purpose of the Convention, as an instrument of human rights protection, call for an interpretation and application of its provisions so as to ensure practical and effective protection to those subject to the High Contracting Parties’ jurisdiction."

Based on this, the Court concludes, in the very succinct decision, the following (and I am citing it here in full):

"1. The Russian Federation ceases to be a High Contracting Party to the Convention on 16 September 2022.

2. The Court remains competent to deal with applications directed against the Russian Federation in relation to acts or omissions capable of constituting a violation of the Convention provided that they occurred until 16 September 2022.

3. The suspension of the examination of all applications against the Russian Federation pursuant to the decision of the President of the Court of 16 March 2022 is lifted with immediate effect.

4. The present Resolution is without prejudice to the consideration of any legal issue, related to the consequences of the cessation of the Russian Federation’s membership to the Council of Europe, which may arise in the exercise by the Court of its competence under the Convention to consider cases brought before it."

One may infer a number of matters from this. The first is that the Court found, like many commentators did earlier, that the crucial date was 16 March: the day on which the Committee of Ministers decided on the cessation of Russia's membership of the Council of Europe under Article 8 of the Council's Statute. Russia's own attempt to leave before being thrown out, by way of a notification of withdrawal the day before is thus not found to be crucial in this respect. 

Secondly, the Court applies the 6-month period mentioned under Article 58 ECHR under its first paragraph (about denunciation) also to this case of expulsion from the Council of Europe. The ECHR thus continues to apply for half a year, clearly with the intent of offering the protection of the rights in the Convention for as long as possible to those falling within Russia's jurisdiction. Here, the 'practical and effective' principle thus - and very logically so for a human rights treaty - points to the exact opposite direction than the logic of treaty (and membership of the international organization of the Council of Europe) cessation. The effect of immediate cessation of ECHR protection would after all not serve as a sanction for Russia but as direct loss for victims of human rights protection. There will thus be six more months of protective ECHR scope, to whatever degree that may make any difference (but the chance of it is already worth it) in practice.

Thirdly, the (temporary) suspension of dealing with pending applications, decided on last week, is reversed with this decision: the Court will thus right away continue to deal with all the cases before it relating to Russia.

Fourthly, the Court indicates that all of this is "without prejudice" to legal issues arising in the coming time. Indeed, many questions of course still remain unanswered: what will be the role and presence of the recently elected judge in respect of the Russian Federation? Will Russia participate in proceedings at all, even if it is allowed to? 

One issue appears to be (at least formally) decided: what happens in the Committee of Ministers in relation to the execution of judgments? Today, the  Committee takes note of the Court's decision and as a result confirms Russia remains bound until 16 September and the Committee "will continue to supervise the execution of the judgments and friendly settlements concerned and the Russian Federation is required to implement them. The Russian Federation is to continue to participate in the meetings of the Committee of Ministers when the latter supervises the execution of judgments with a view to providing and receiving information concerning the judgments where it is the respondent or applicant State, without the right to participate in the adoption of decisions by the Committee nor to vote" (para. 7 of today's Resolution) . For what it's worth, one may add, as this setup will decrease any prospects of cooperation by Russia to nearly zero. But the Committee probably saw no other way (legally and politically) than to decide in this way.

Thus, it is pretty certain that more Court decisions of this kind could follow with more clarifications as the Court will try to navigate this legal minefield. For the ongoing conflict in Ukraine and for recent repressive measure taken within Russia itself, this means at least that for the coming time these can and will still be assessed from a human rights perspective. Put differently: until this Autumn, Russia is still bound by the ECHR.

Political Salvation of Europe’s Human Rights System? The Case for a Fourth Council of Europe Summit

By Andrew Forde

 
Russia ceased to be a Member State of the Council of Europe with immediate effect on 16 March 2022 in the context of the procedure launched under Article 8 of the Statute of the Council of Europe (CoE). The Committee of Ministers demonstrated uncharacteristic decisiveness – temerity, even - when faced with Russia’s flagrant rejection of the rules based international order. Much has already been written about the situation and it’s immediate implications, for example here, here and here. We are still in the eye of the storm, and there are still many unknowns as to how this story will unfold. For now at least, Russia remains a member or observer of ten CoE Partial Agreements, including the European Commission for Democracy through Law (also known as the Venice Commission), but we await the full analysis of the legal and financial implications of Russia’s expulsion from the CoE.

At critical junctures in the CoE’s history, such as during the Yugoslav wars and following the major expansion and integration of former Eastern bloc countries, the Heads of State or Government of all Member States have convened to agree on high-level strategic priorities for the organisation. In Warsaw in 2005, during the third and most recent Summit, the leaders adopted a political declaration and an Action Plan laying down the principal tasks of the Council of Europe for the years to follow. This was recognised as being necessary in order to reinforce the Statutory and Treaty-based standards to which all CoE Member States were bound.

In this piece I will discuss why a Fourth Summit of the Heads of State or Government is now both necessary and urgent in order to prevent contagion, and to salvage, revitalise and reinforce Europe’s human rights protection architecture.
 
A Cruel Irony
It is something of a cruel irony that having invested 10 years into the so-called Interlaken Process to make the ECHR System more effective, in particular the Court, it was the brutal disregard for the ECHR during the war in Ukraine that will have the greatest immediate numerical impact on the Court’s backlog. Nearly a quarter of the 70,000-odd cases pending before the Court are lodged against Russia and now find themselves frozen, albeit temporarily.

To add insult to injury, as recently as 2020 in Athens, Russia joined 42 other Member States, to note its concern over confrontations and unresolved conflicts that affect certain parts of the continent, and committed to working together for reconciliation and political solutions in conformity with the norms and principles of international law. With the benefit of hindsight, one wonders if the Athens Declaration was signed in good faith by all who subscribed to it. Therein lies a significant problem for the Council of Europe: the seriousness and sincerity with which it is treated by the Governments of Member States.
 
The Politics of Human Rights
Effectiveness has been a watchword in the Council of Europe for decades, with successive Secretaries General leading various reform processes focussed on structural, administrative or budgetary reforms. However, achieving effectiveness is not only an administrative process, it is in fact principally a political one.

One of the principal functions of international human rights law is to ensure standards are never diminished by political whims. Yet, as an intergovernmental organisation, the Council of Europe and Europe’s human rights protection system are constructed on the basis of a complementary legal and political system which shapes and services the core standards-setting, monitoring and cooperation functions of the organisation.

All parts of the CoE system are bound by differing degrees of politics and law. One enables and delimits the other. The Committee of Ministers, for instance, comprises political mandate holders (i.e. Ministers of Foreign Affairs) with Statutory duties, and their Deputies (i.e. Ambassadors in Strasbourg) execute a delegated function in accordance with well-established rules of procedure. Similarly, the process of supervising the execution of judgments of the European Court of Human Rights is politico-legal in nature in accordance with Article 46 of the ECHR to the extent that the members of the relevant Committee (the “CMDH”) enjoy an extensive margin of appreciation in terms of the strength of their response to any case of non-execution of a Court judgment. It is neither science nor law that dictates outcomes, it is the art of diplomacy set against an often complex and sensitive political context with numerous dependencies. The election of senior mandate holders is also done in accordance with the law, but has not-insignificant political characteristics. Finally, the unique added value of the Parliamentary Assembly (PACE) is its political nature, and the freedom of speech that such a political platform provides.

Of course, there are many critical aspects of the work which require maximal depoliticization, status neutrality and objectivity such as all adjudication and monitoring functions. But even these processes are not entirely immune to politics.

Ultimately, politics is not necessarily a bad thing for an organisation such as the CoE. In fact, it can be a strength. One might even say that it is the political characteristics of the organisation that enable it to be relevant, responsive and agile. But if such an inherently political organisation lacks a high-level political vision relevant to the changing circumstances in Europe and which reinforces its legal mandate, then processes can stagnate, disharmony can grow and effectiveness can diminish.
 
Aligning Political Ambitions with Statutory Obligations
A high-level vision, in the form of a Declaration by Heads of State and Government, would provide the organisation a renewed political mandate which would serve to inform programmatic priorities and resource allocation. Any such Declaration must offer clarity of purpose and must be adopted unanimously at the highest political level by all – not just those “present and voting”. Such a vision would also be necessarily time bound and so would require periodic renewal.

To-date, the CoE has convened Heads of State and Government for Summits on three occasions in 1993, 1997 and 2005. The first of these Summits took place in Vienna in 1993 which confirmed the Council’s policy of openness to enlargement and also launched a significant process to reform the European Convention on Human Rights with a view to making it more effective. The Second Summit was held in Strasbourg in 1997 to give new impetus to human rights protection. At that summit, the premiers decided to establish a CoE Human Rights Commissioner, to complement the existing statutory architecture, which would be formalised in 1999. The third, and most recent Summit was held in Warsaw in May 2005. Leaders of the then 46 Member States redefined the Organisation’s priorities by adopting a declaration and an action plan aimed to strengthen the Council’s key mission to safeguard and promote human rights, democracy and the rule of law.

It has been almost 17 years since the last Summit. In that time, Europe has experienced armed conflicts, migration crises, an attempted coup d’état, political upheaval, numerous serious terrorist incidents, democratic regression and more and more open challenges to the international rule of law and fundamental principles enshrined in the European Convention on Human Rights. A Summit has not taken place not because there has not been the need for one, it has not happened precisely because there are so many complex and competing needs, against a backdrop of a shrinking space for consensus.
 
A Fourth Summit focussed Unity and Good Faith
If the war in Ukraine has shown anything it is the unity of purpose of CoE Member States when faced with a flagrant violation of the Statute. This unity is the essential criterion required for the establishment of a new political vision for the Council of Europe. The timing is therefore right to consider convening a new Summit of Heads of State and Government as a matter of urgency.

Such a Summit would, first and foremost, be an opportunity for Member States to express absolute solidarity with Ukraine and all Europeans experiencing conflict, repression and displacement.

It would be a point of inflection which would need to be based on the unity of Member States and the primordial nature of the Statute of the Council of Europe. It should emphasise Member States commitment to engage with the organisation and one another in good faith, and would provide a platform for Member States to reiterate their support for the rights enshrined in the European Convention on Human Rights and its enforcement system including the execution of judgments process. It would be difficult to countenance any State refusing to participate in a Summit concerned with such fundamental matters of principle, but any reluctance would deserve scrutiny.

It would also be a correct moment to underscore the importance of the financial stability, and ultimately the sustainability, of the organisation. A Summit would also provide an opportunity for the Council of Europe to articulate its unique place and complementary purpose amongst other international organisations. The ensuing Declaration should copperfasten its approach to the often misunderstood concept of Democratic Security, clarifying definitively that whilst the organisation does not have a security or defence mandate, it has a legitimate, statutory mandate to maximise the protection of human rights throughout Europe, including in contested territories or grey zones.

To this end, Member States could be invited to commit to a new presumption of access principle first mooted by the Parliamentary Assembly, when it comes to human rights monitoring, whereby monitoring mechanisms can only be denied access to a certain territory based on well-founded and transparent justifications. Together with the Commissioner for Human Rights, CoE Monitoring Mechanisms such as the Committee for the Prevention of Torture (CPT) and others dealing with trafficking, violence against women, racism and intolerance and social rights, are the vanguard of the broader ECHR System and must not be hindered in any way.

The inglorious ejection of Russia from the CoE begs the question as to whether the ECHR itself is sufficiently clear or if it requires updating to avoid, inter-alia, the situation of a human rights grey zone turning into a human rights cliff-edge.

Finally, a Summit Declaration should open up the potential for a new kinds of cooperation within the Council of Europe which demonstrates openness to those European states not yet members: this would effectively be recognising a potential candidate status. Such a category would sit alongside the three current tiers of member, non-member and neighbourhood state. Any state that is willing to commit to European human rights and rule of law standards, and progressively pursue a path towards membership, would assume this status. It would provide a basis on which confidence could be built and cooperation programmes developed with those jurisdictions (as well as civil society and parliaments) not currently members of the organisation, such as potentially Belarus, the Russian Federation, the Holy See, and others. The status of Kosovo, which has deeply embedded the ECHR and other CoE standards such as the Istanbul Convention into its domestic legal order, must be finally reconciled through a decision of the Member States at the highest level.

More broadly, the organisation should keep an open mind as to how it could deploy its assets and expertise in a meaningful way in any region which finds itself beyond the scope of the ECHR system, which might include supporting the establishment of ad-hoc mechanisms such as judicial or quasi-judicial human rights institutions to investigate and to consider alleged or apparent violations of human rights as provided in the European Convention for the Protection of Human Rights (as it previously did with Human Rights Chamber for Bosnia and Herzegovina) or Human Rights Ombudsman institutions (as it did in Kosovo).
 
Conclusion
The consistent political messaging from the CM over the past ten years has been on ensuring the effectiveness and shared responsibility of the Member States. Statutory and treaty-based commitments are unconditional obligations which have been voluntarily subscribed to by States. Any attempt by a Contracting Party to pick and choose which standards they implement or rulings of the Court they execute seriously undermines the unique human rights protection system established by the European Convention on Human Rights. Yet, maintaining these standards in practice is not achievable through international law alone, but requires the enthusiastic political support of the Member States at the highest level.

The Council of Europe is an organisation with unique expertise and experience that has served as a catalyst for transformational change in Europe over the past 72 years. The departure of the Russian Federation is a dark moment which must serve as a point of inflection for the organisation, and in particular for the Member States that determine the future course of the CoE.

The CoE is not a fair-weather vessel, designed only for calm waters. It is the bastion of human rights in Europe, whose raison d’etre is to deal with the critical human rights challenges facing European society. If it cannot articulate a confident, constructive identity for itself when it comes to such situations, it risks failing on its central purpose. Now is the time to take stock of the profoundly changed reality in Europe and, through a Fourth Council of Europe Summit, articulate a new, realistic and ambitious vision for the future.
 

Dr Andrew Forde is a Visiting Fellow at the Irish Centre for Human Rights. He thanks Prof. Kanstantsin Dzehtsiarou for his comments on an early version of this blog post.

The Court's Case-Law Guides Virtually Complete

In the all upheaval of politics and war surrounding the ECHR system these weeks, other matters may be easily overlooked. For the accessibility and understanding of the enormous amount of Strasbourg jurisprudence, structural overviews are essential, even for specialists. For a long time, the Court's own Case-Law Guides have been a first and crucial signpost to find one's way into the jurisprudential labyrinth. With the addition of a guide on one of the most-litigated substantive provisions, Article 3 ECHR (the prohibition of torture and inhuman and degrading treatment and punishment) the list of case-law guides is now virtually complete in the sense of covering almost every single substantive right in the ECHR and its protocols.

The general overview of all existing case-law guides can be found here. They come in two flavours: thematic as well as organised per article. The large majority is at lats available in English and French, but for many of the guides translations in other Council of Europe languages are also available on the website. The current thematic guides to be found on the same page cover the following:

• Data protection
• The Environment
• Immigration
• LGBTI Rights
• Mass Protests
• Prisoners' Rights
• Terrorism

‘No Longer a Member State of the Organisation’: The Expulsion of Russia from the Council of Europe and Articles 7 and 8 of the Statute

By Nikos Vogiatzis, University of Essex 

Introduction

Russia is no longer a member state of the Council of Europe. On 16 March, the Committee of Ministers (CM) of the Council of Europe decided, “in the context of the procedure launched under Article 8 of the Statute of the Council of Europe, that the Russian Federation ceases to be a member of the Council of Europe”. The decision was effective immediately. This came just a day after the Parliamentary Assembly of the Council of Europe (PACE) unanimously recommended that ‘the Committee of Ministers should request the Russian Federation to immediately withdraw from the Council of Europe’ and, if Russia does not comply, ‘that the Committee of Ministers determines the immediate possible date from which the Russian Federation would cease to be a member of the Council of Europe’. At the same time, shortly before PACE voted on this matter, the Russian Federation had submitted a formal notification to the Secretary General indicating that it would withdraw from the Council of Europe under Article 7 of the Statute, and that it would denounce the European Convention on Human Rights. This post will revisit some of the key decisions of the last three weeks, demonstrating how these decisions could shed light on legal ambiguities surrounding withdrawal, suspension and expulsion from the Council of Europe.

Suspension and Expulsion

After its invasion of Ukraine, an obvious and fundamental violation of international law, the Council of Europe has clearly taken a firm stance against Russia. It was understood that, after more than two decades of a turbulent relationship, the war in Ukraine could not warrant anything less than an immediate and clear reaction. Thus, the Secretary General, the Committee of Ministers, the President of the Venice Commission – among others – have all condemned on multiple occasions and in the strongest terms the invasion. For the first time, Article 8 of the Council of Europe Statute was relied upon on 25 February to suspend Russia’s rights of representation in the Council of Europe. The European Court of Human Rights also granted urgent interim measures, asking Russia to refrain from military attacks against civilians and civilian objects and abstain from blocking and terminating the activities of Novaya Gazeta. On 15 March and 16 March the PACE and CM adopted the aforementioned historic opinion and decision, respectively.

Questions surrounding the withdrawal, suspension and expulsion from the Council of Europe had not been the subject of extensive scholarly analysis, until the insightful study by Dzehtsiarou and Coffey of 2019. They key provisions are indeed Articles 7 and 8 of the Council of Europe’s Statute – but, as Milanovic observed, the wording of these provisions is not ideal. These provisions should be read alongside Article 3 of the Statute, which states the values of the Council of Europe. Thus, the clear political determination of the Council of Europe’s organs to request Russia to withdraw took place in the context of a number of legal ambiguities surrounding the relationship between Articles 8 and 7, in particular. After all, this is the first time that Article 8 is enforced against a member state. In that sense, the expulsion decision against Russia has shed light on the applicable legal framework in a number of ways, as will be shown below.

Key decisions since 24 February

The exposition of key decisions of the CM and PACE is selective and focused on the scope of the post; all decisions or further information is available here:

24 February: The CM decides to hold an extraordinary meeting on 25 February to examine measures to be taken under Article 8.

25 February: The CM decides, under Article 8, to suspend Russia’s rights of representation in the Council of Europe. The Resolution CM/Res(2022)1 on 2 March clarifies that the suspension concerns the CM, PACE, the Congress of Local and Regional Authorities and committees set up under Articles 15.a, 16 and 17 of the Statute.

10 March: Russia announces (albeit not formally triggering Article 7) its intention of not participating in the Council of Europe.

10 March: On the same day, the CM decides to consult PACE with a view to deciding further measures against Russia under Article 8. PACE had already decided, on 25 February, to hold an extraordinary meeting on 14 and 15 March to discuss the consequences of the Russian Federation’s aggression against Ukraine.

14 March: PACE begins the extraordinary meeting; the members show clear support for the further use of Article 8. A draft report on the ‘Consequences of the Russian Federation’s aggression against Ukraine’ is circulated among members.

15 March: Shortly before the vote, the Russian Federation submits its letter under Article 7 and also notifies the Secretary General of its intention to denounce the European Convention on Human Rights (ECHR) under Article 58 ECHR. The President of the Assembly (rightly, as will be shown below) informs the members that the Article 7 letter will in no way impact the discussions and the vote on the further use of Article 8.

15 March: PACE votes unanimously in favour of the CM requesting Russia to withdraw from the Council of Europe ‘immediately’.

15 March: After the vote, the Secretary General, the Chair of the CM and PACE’s President make a joint statement on the ‘exclusion’ of Russia, indicating that it can no longer be a member of the organisation.

16 March: The CM decides to end Russia’s membership with immediate effect, namely from 16 March 2022.

A two-step process against Russia and the role of the Assembly

The first point to be noted is that, on this occasion, Article 8 was used as a two-step process. The first step was the suspension decision on 25 February. The second step was that of ‘expulsion’. Thus, the further use of Article 8 referred to in the decision of 10 March concerned the second step, which is that of ‘expulsion’. Nevertheless, Article 8 is not ideally worded as it refers to Article 7. This matter is returned to below. The question as to why the Parliamentary Assembly was not consulted more extensively (see below) prior to the suspension decision of 25 February could be answered with reference to Statutory Resolution (51) 30, Admission of new members (annexed to the Statute), which also refers to withdrawal:

The Committee of Ministers, before inviting a State to become a Member or Associate Member of the Council of Europe, in accordance with Articles 4 and 5 of the Statute, or inviting a Member of the Council of Europe to withdraw, in accordance with Article 8, shall first consult the Consultative (Parliamentary) Assembly in accordance with existing practice.

The above provision indicates that the Parliamentary Assembly should be consulted prior to the request to withdraw under Article 8 – but not necessarily in the case of suspension. It was possibly felt that it was of the utmost importance to activate immediately Article 8 and proceed with the suspension decision that it entailed on 25 February. However, the Decision of 25 February was adopted ‘[f]ollowing an exchange of views with the Parliamentary Assembly in the Joint Committee’, so clearly the Parliamentary Assembly was involved.

Simultaneously, it is worth noting that Article 8 of the Statute is not the only provision which could have been drafted in a clearer way. Indeed, the above provision in Statutory Resolution (51) 30 is not ideally worded, too. In particular, it refers to an ‘invitation to withdraw’, while Article 8 indicates that this is not an invitation but rather a request.

Russia’s expulsion and the full separation of Articles 7 and 8

When the Assembly prepared and circulated the draft report on the further use of Article 8, it was not known, it appears, that Russia would submit the Article 7 letter shortly afterwards. When that was announced, the Parliamentary Assembly rightly continued with the consideration of the use of Article 8 despite the activation of Article 7. As von Gall argued, even if Article 7 would be triggered by Russia, the organs of the Council of Europe would still need to proceed with the request to leave under Article 8. As she explained, ambiguities surrounding membership of the Council of Europe should not be used to undermine the mandate of the organization. Nothing in the text of the Statute appears to suggest that such a move is not legally permissible.

It is now known that Article 7 was triggered by Russia on 15 March. The above sequence of decisions indicates that the Council of Europe organs were determined to force Russia to withdraw – in effect, to expel it from the organization. The Article 7 letter was an attempt by Russia to avoid that. It is important to recall that, under the text of Article 7, the withdrawal takes effect at the end of the financial year. Simultaneously, one of the amendments that were adopted in the report of the Assembly concerned precisely the addition of the word ‘immediately’ – which brings to the fore the question of the timing of withdrawal and the possibility of immediate expulsion (which, as we know now, is exactly what has happened). Leaving aside the timing of withdrawal, and contrary to Article 8, Article 7 provides for a ‘voluntary withdrawal’ (p. 65) - which clearly is not the case here as we are before the most serious violation of Article 3 of the Statute.

As the draft, and then the adopted Opinion, confirm, the Assembly was of the view that no discretion should be left to the Committee, and it thought so even before the submission of the Article 7 letter. This is legally significant because Article 8 provides that if the state does not comply, the Committee ‘may decide’ that the state is not a member after a specific date. Of course, the Opinion of the Assembly is not binding as the Committee makes the decision – but, as already noted, it proved very influential.

In this context, the activation of Article 7 by the Russian Federation on 15 March (and the withdrawal at the end of the financial year that it implied) inevitably brought to the fore the interplay between Articles 8 and 7 of the Statute. Article 8 provides that the Committee of Ministers can request a state ‘to withdraw under Article 7’. Simultaneously, it has already been mentioned that Article 7 provides for a voluntary withdrawal and also that the use of Article 8 is autonomous from Article 7: a state cannot use Article 7 at will to evade the consequences of the use of Article 8 by the Council of Europe.

The decision to expel immediately was made by the Committee, taking into account the Opinion of the Assembly. After this sequence of decisions, Article 8 could have been interpreted by the CM in at least two ways. First, as implying a connection with Article 7 in the following way: that the request to withdraw if the state complies would take place under the terms of Article 7, namely by the end of the financial year. Differently put, that an ‘expulsion’ on a specific date (including with immediate effect) could only take place once it was established that the member state in question is unwilling to cooperate. This situation could be viewed as a de facto expulsion, even if legally Russia would remain a member state until the end of the financial year. By analogy, the example that Klein provides (p. 66) of the Greek military junta would be of relevance (Greece, having declared its withdrawal under Article 7, was de facto suspended from December 1969 until the end of the next financial year).

Second, Article 8 could be (and indeed was) interpreted as enshrining a right to terminate the state’s membership immediately, regardless of whether or not the state cooperates. This position strengthens the connection between Articles 3 and 8, thereby providing for the possibility of immediate expulsion regardless of the willingness of the state. As Dzehtsiarou observed, ‘Russia was suspended as a result of aggression and gross violations of the values and principles of the organisation’ and therefore ‘the termination of membership should be imminent’.

These considerations were certainly taken into account in the Opinion of the Assembly. Arguably, the Committee went even further than the Opinion by ceasing Russia’s membership with immediate effect (ie without a ‘request’). Thus, Article 8 was fully dissociated from Article 7 and provided for the immediate expulsion from the organization. In doing so, the Council of Europe organs and the CM in particular emphasised that (i) this was clearly not a voluntary withdrawal but an expulsion (ii) the terms and timeframe of expulsion would be determined by the Council of Europe and not Russia.

The clear separation of Article 8 from Article 7 could also have implications for the difficult question of whether Russia is bound by the ECHR for the next six months (see Article 58 ECHR). Plausible arguments have been provided in both directions, and clearly this matter will be the subject of much discussion. Until a decision is made, one would be inclined to think that precisely because Article 8 was interpreted and applied in this way (i.e. immediate expulsion), the starting point would be that the ECHR ceased to apply on 16 March as well.

Conclusion

Russia’s exit from the Council of Europe (and from the European Convention on Human Rights, on which more generally see here and here) was an inevitable and necessary decision which has of course consequences, especially because, as the Council of Europe leaders acknowledged, it deprives the Russian people of access to the European Court of Human Rights (for a broader discussion see the aforementioned article, p. 467 et seq). But ultimately, in every step of this process, and in light of the seriousness of the violations of Article 3, it was the Council of Europe suspending, requesting to leave, and eventually expelling Russia. In this context, the full separation of Articles 7 and 8 is legally and politically significant.

* The author would like to thank (with the usual disclaimer) Kanstantsin Dzehtsiarou and Kushtrim Istrefi for very helpful comments on earlier versions.

Webinar on Russia and the Future of the Council of Europe

On 30 March, the School of Law at Middlesex University London will host a webinar on Russia and the future of the Council of Europe. 

Here is a brief abstract of the event and the list of speakers.

"It is now certain that the Russian Federation will either formally withdraw, or be expelled, from the Council of Europe following its aggression against Ukraine. What implications would Russia’s departure have for the Russian people, the Council of Europe itself, and the wider system of protection under the European Convention on Human Rights? Is there a risk of contagion to other problematic states, and what actions should states supportive of the Council of Europe’s values take now?

Chair: Dr Alice Donald, Associate Professor, School of Law, Middlesex University

Speakers:

Galina Arapova, Director and senior media lawyer of the NGO Mass Media Defence Centre (Russia)

Philip Leach, Professor of Human Rights Law, School of Law, Middlesex University and former Director of the European Human Rights Advocacy Centre

Angelika Nußberger, Professor at Cologne University, member of the Venice Commission, and Judge elected in respect of Germany at the European Court of Human Rights (2011-19)

Pavlo Pushkar, Head of Division of the Department for the Execution of Judgments of the European Court of Human Rights, Directorate-General for Human Rights and the Rule of Law of the Council of Europe."

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Formal End of Russia's Council of Europe Membership

The day has come: this morning, the Committee of Ministers of the Council of Europe has today formally decided that the Russian Federation ceases to be a member of the organisation. This happens after just over a quarter century of membership, since Russia joined on 28 February 1996. 

This follows upon the earlier decision on 25 February, on which we reported here, to suspend Russia's rights of representation in organisation under article 8 of the Statute of the Council of Europe. Consultations with the Parliamentary Assembly were also ongoing in the past few days, leading to yesterday's unanimous adoption of it's Opinion that the Russian Federation because of the invasion of Ukraine, can no longer be a member of the Council of Europe. Yesterday evening, as a reaction, the Russian government formally informed the Secretary General of their withdrawal from the organisation and its intention to denounce the ECHR. Today's decision is the culmination of this sad chain of events, which offers a mixed picture in timing of Russia being kicked out and leaving itself.

Yesterday evening, the Italian Minister for Foreign Affairs and International Cooperation and Chair of the Council of Europe's Committee of Ministers, Luigi Di Maio, the President of the Council of Europe’s Parliamentary Assembly, Tiny Kox, and the Secretary General of the Council of Europe, Marija Pejčinović Burić, issued a joint statement, in which they, amongst other things. stated: 

"Through their actions in Ukraine the Russian authorities deprive the Russian people of the benefit of the most advanced human rights protection system in the world, including the jurisdiction of the European Court of Human Rights and our vast convention system.

We express solidarity with the Russian people who, we firmly believe, share democratic values and aspire to remain part of the European family where they belong."

The flag of the Russian Federation, as pictured, has been taken down from the square in front of the Palais de L'Europe in Strasbourg. It is to be hoped, for all those within the Russian Federation's jurisdiction, that in the near future - at some yet uncertain point - the state will be able to re-join, just like Greece did decades ago after democracy had returned there, so that the protection of the ECHR and its Court will once again be available for them. On  consequences of the current steps, see the guest post of a few days ago here.

More analysis will follow later.

New ECHR Readings

Please find below a selection of new ECHR-related readings of the past few months:

* Jacob Mchangama, Natalie Alkiviadou, ‘Hate Speech and the European Court of Human Rights: Whatever Happened to the Right to Offend, Shock or Disturb?’, Human Rights Law Review, 2021, Vol. 21, Issue 4, p. 1008–1042:

‘In Handyside v. The United Kingdom, the European Court of Human Rights (ECHR) held that the right to freedom of expression, as provided for in Article 10 of the European Convention on Human Rights protects not only expressions that are favorably received but also those that ‘offend, shock or disturb’. 1 Yet, the Court has since developed a substantial body of inconsistent case-law allowing restrictions on ‘hate speech’ that severely questions the degree to which offensive, shocking and disturbing speech is truly protected by the ECHR. Against a qualitative and quantitative backdrop, the authors argue that the Court and previously the Commission, have adopted an overly restrictive approach to hate speech, which fails to provide adequate protection to political speech on controversial issues, including criticism of public officials and government institutions and has created an inconsistent and even arbitrary body of case law. Instead, jurisdictions that recognize a need to balance the freedom of expression with limits on hate speech have adopted more convincing approaches of hate speech, providing a robust protection of free speech while leaving room for the State to curtail the most extreme forms of non-violent hate speech.’

● Oktawian Nawrot, Justyna Nawrot & Valeri Vachev, ‘The right to healthcare during the covid-19 pandemic under the European Convention on human rights’, International Journal of Human Rights, January 2022:

‘The article presents the challenges exposed by the COVID-19 pandemic from a European perspective, especially its consequences in light of the European Convention on Human Rights' (ECHR) guarantees of the right to health. It is the first attempt to comprehensively examine these challenges for the State Parties of the ECHR. The right to health has traditionally been included in the second generation of human rights; therefore, presumably, it does not in itself give rise to any specific rights for an individual. However, the European Court on Human Rights (ECtHR) has recently been linking the right to health with specific provisions of the European Convention on Human Rights, in particular with Articles 2, 3, and 8. We analyse the Court's relevant rulings and their possible consequences for the assessment of the actions taken by the States Parties in order to fight COVID-19, with special emphasis on possible State responsibility for violating the Convention. This can happen when the State's actions result in different levels of health care access available to different groups of patients (patients with COVID-19 and patients with other conditions). The analysis reveals the weakness of the approach taken by ECtHR in the face of the COVID-19 pandemic.’

* Helen Keller, Corina Heri, Réka Piskóty, ‘Something Ventured, Nothing Gained?—Remedies before the ECtHR and Their Potential for Climate Change Cases’, Human Rights Law Review, 2022, Volume 22, Issue 1:

‘The European Court of Human Rights stands before what may be its greatest challenge: addressing current and impending human rights violations stemming from climate change. As the first climate cases trickle into the Court’s docket, and speculation about the Court’s response grows, many questions remain to be answered. Perhaps the matter of greatest uncertainty relates to the type and degree of redress that the Court can offer in this context. This article argues that the Court’s often deferential, inconsistent and unreasoned remedial practice is in urgent need of overhaul. It studies the Court’s remedial practice in environmental cases to draw conclusions about the Court’s existing approach to remedies and its self-perception in this context, i.e. its own understanding of the possibilities and limitations of its role. From this, it extrapolates the remedial approaches that could potentially be taken in climate cases, and discusses the advantages and disadvantages of each one.’

* Nikos Vogiatzis, ‘Interpreting the Right to Interpretation under Article 6(3)(e) ECHR: A Cautious Evolution in the Jurisprudence of the European Court of Human Rights?’, Human Rights Law Review, 2022, Volume 22, Issue 1:

‘This article explores how the European Court of Human Rights has interpreted the right to interpretation under Article 6(3)(e) ECHR—a topic which, despite its significance for the rule of law and access to justice, has received, to date, very limited scholarly attention. The key finding is that we are witnessing a ‘cautious evolution’: the Court has progressively—yet simultaneously cautiously—developed the standards and guarantees of this right, which is one of the rights of defence under Article 6(3) ECHR and a requirement of the fair trial. The analysis focuses, in particular, on (i) how general interpretative techniques that have been developed by the Strasbourg Court were applied by the Court in its jurisprudence concerning the said provision; (ii) on the interplay between the overall fairness of the trial and Article 6(3)(e) ECHR; and (iii) on Article 6(3)(e) ECHR and the relationship between legal assistance/legal aid and the right to interpretation. In addition, the article identifies possible areas of further development of this right.’

* Daniel Toda Castán has published the monograph "The Respondent State Shall": International Human Rights Courts increasing their influence on the execution of their own judgments, with Global Law Press (2021). Based on a PhD defended in Speyer, Germany, the book is based on a survey and analysis of over 500 judgments of the European Court of Human Rights, focusing on the Court's indications to states of measures of execution of the judgments. It also compares this with the African and Inter-American systems.

What Would Russia’s Departure from the Council of Europe Mean for the Strasbourg System of Human Rights Protection?

By Kanstantsin Dzehtsiarou, University of Liverpool. 

On 10 March 2022, the authorities of the Russian Federation informed that they are not going to participate in the Council of Europe any longer. The exact legal consequences of this statement are unclear but it is highly likely that the Council of Europe will soon not be any longer between Reykjavik and Vladivostok. It is open for a debate whether there will be a cooling off period before the termination of membership provided for by Article 7 of the Statute of the Council of Europe. Article 7 provides for a period of time between the indication of the intention to withdraw and the termination of membership which can be between 3 and 15 months depending on when such indication is made. Such cooling off period would normally take place between the indication of the intention to withdraw and the termination of membership. However, I would argue that in case of expulsion the cooling off period should not apply. This period is designed to facilitate a Brexit type situation when a state decides to withdraw and both sides need to prepare for such departure with minimal damage. Ruxit is of a different nature, Russia was suspended as a result of aggression and gross violations of the values and principles of the organisation. No cooling off period seems appropriate in this situation and the termination of membership should be imminent.

This imminent departure which will very likely happen within weeks will have significant impact on the European Convention on Human Rights (ECHR) system. Russia is by far the biggest ‘client’ of the European Court of Human Rights (ECtHR). In 2021, the Court delivered 21% of its judgments against Russia which is only one of 47 contracting parties to the ECHR. In the following short note, I will try to consider what is going to happen with the ECtHR with the eventual departure of Russia.

New applications against Russia

According to Article 58 ECHR the state which departs from the Council of Europe also ceases to be a Party to the Convention. So, as soon as the membership of Russia is terminated, the ECtHR will have no jurisdiction over the territory of Russia as well as on other territories under its effective control (for example, Transdniestria in Moldova). The Court will declare inadmissible all applications that complain against violations that have taken place after the termination of membership. Technically some admissible applications can reach the Court years after the moment of termination. For example, if the act of torture happened today, the applicant will have to exhaust all domestic remedies in Russia and then apply to the Court. Even if the violation happened on 11 March 2022, the application itself might have to be submitted years from now. Pursuant to Article 8 of the Statute of the Council of Europe, this precise moment of termination of membership will be determined by Committee of Ministers.

The fate of new applications submitted after the termination of membership is pretty clear and uncontroversial although unfortunate for the victims of human rights violations both in Russia and on the territories under their effective control. Of course, the citizens of Russia will still be able to bring complaints before the Court if their rights are allegedly violated by any of 46 remaining Contracting Parties to the Convention.

Pending applications

Currently there are 13,645 pending applications against Russia. There is more than a dozen of inter-state applications most of them were brought by Ukraine after the conflict with Russia in 2014. According to Article 58 ECHR the departure from the Convention does not release a member state from the obligations under the Convention. So, all applications submitted against Russia before the termination of membership can be considered by the Court and judgments can be delivered. However, a few practical issues will remain in the event of Russia’s departure from the Council of Europe in a non-amicable way (which seem more likely). First and foremost, what is the value of these judgments. Some major inter-state cases might have some symbolic value but hundreds of although personally significant but trivial violations will have no impact on the country which is outside of the Council of Europe. It is almost certain that the Russian Federation will stop all diplomatic collaboration with the Council and the judgments would not be executed. Second, there are a few more technical issues. The judge elected in respect of Russia will have to sit in all Chamber and Grand Chamber cases in which Russia is a respondent state. Arguably, after the denunciation of the Convention the Russian judge will depart from Strasbourg. The current judge might be able to act as an ad hoc judge for the Russian cases but it can be politically inappropriate. Appointing of any other ad hoc judge although not strictly speaking against the wording of the ECHR but probably against its spirit. Here, the Court would have to improvise which might be problematic from the point of view of legitimacy of the Court. Thirdly, the respondent state authorities are active participants in the proceedings in Strasbourg – the governments are expected to submit their explanations to the alleged violations, at least to some extent the process is adversarial. It is very hard to suggest that the Russian authorities will collaborate with the ECtHR in any shape or form. The absence of the Russian government would undermine the legitimacy of judgments delivered against Russia.

So, what can be done? The Court cannot declare all pending cases against Russia inadmissible as Article 58 clearly prevents it from doing that. I see two main ways of dealing with these cases or some combination between these two. First and most likely, the Court will freeze all the pending Russian cases until better times. If Russia decides to reapply it might be conditional for its readmission to swiftly deal with all pending applications. This would make much less sense if Russia reapplies in 40-50 years but if the change of hearts happens within a decade – that might be appropriate. The main significant drawback here is that plenty of applicants will be left in a limbo with pending cases but without any judicial determination. Second, the Court would improvise and continue dealing with the cases from Russia. The Contracting Parties can even draft changes to the Convention to accommodate this complex situation and ensure that the lack of collaboration and absence of the national judge do not obstruct the Court’s proceedings. This is problematic as this process will undoubtedly be consuming a lot of Court’s resources when funding is likely to be reduced. Moreover, if the Russian authorities bother to comment at all they would argue that these trials in absentia would undermine the fair trial standards. Finally, the Court would be delivering judgments which have no impact on the perpetrator.

As I mentioned, the Court might choose to resort to a combination of these two approaches. For instance, the Court might get rid of clearly inadmissible applications – the participation of the national judge is not necessary in these cases and there will be plenty of Russian lawyers in the Court’s Registry during the transition who can deal with these cases. The Court might want to deal with inter-state cases as a symbolic gesture and freeze all other individual applications.

Execution of judgments

There are about 2000 judgments pending execution by the Russian Federation. It is unlikely to expect that the Russian authorities will continue collaboration with the Committee of Ministers regarding execution of said judgments. So, neither monetary compensation nor other individual and general measures will be enforced. The Committee of Ministers generally has very little power to implement the judgment but this power is reduced to zero if the state is outside the Council of Europe. Here, the Committee will have to either completely stop execution of all cases or freeze them. The latter is much more likely.

Personnel

There are plenty of Russian lawyers who work at the ECtHR registry. Some of them are on temporary contracts, so they will not be extended but there is a vast number of lawyers from Russia who work on a permanent basis in Strasbourg. These permanently contracted lawyers who are only citizens of Russia will probably be let go because only citizens of the member states can be employed by the Council. However, there is a proportion of lawyers who have dual citizenship. In their respect a specific decision must be taken. It is possible to argue that they will have to leave the Court after a transitional period due to the significant restructuring of the Court however this will have to be decided by the statutory bodies of the Council.

Conclusion

There is very little point beyond merely symbolic for the ECtHR to continue dealing with Russian cases. Its impact on the departed country will be extremely limited. This will help the Court to sort out its old problem of backlog but this is not an optimal solution at all. I have argued elsewhere that suspension of Russia from the Council of Europe is a correct solution in the circumstances but this does not come without a cost. This cost is inability to protect victims of human rights in Russia. Having said that, Russia can re-join the Council. In the 60-s it took Greece four years to return, I hope that Russia will take even less. 

*I am grateful to Drs Andrew Forde and Kushtrim Istrefi for their insightful comments on the earlier draft of this comment. All errors are mine.