The Council of Europe and Navalny
Countries blatantly violating its rules should be suspended
Nobody has turned to Council of Europe and the European Court of Human Rights as often as Russian opposition politician Alexey Navalny – 20 times - and has gained so little from it. In spring 2021, Navalny was fighting for his life in a Russian penal colony, suffering from multiple medical problems. He was arrested on 17 January 2021 in a case that the Strasbourg court had already dismissed as arbitrary and unfair in 2017. On 16 February 2021, the court ordered Navalny’s immediate release. Russia openly refused. With 1,797 open judgements, Russia has the highest number of non-implemented rulings by the Strasbourg court of all 47 members of the Council of Europe. The court's order for Navalny’s release must become a red line for the respect of the court. The Council of Europe’s Committee of Ministers should give Russia a choice: release Navalny or face suspension.
ESI letter: A crisis in the Council of Europe - "If Navalny dies in prison ..."
ESI: “As simple as it is appalling.” The Navalny debate highlights (22 April 2021)
ESI newsletter: Navalny's life – the choice in Strasbourg (20 April 2021)
ESI newsletter: The strangest love affair – autocrats and parliamentarians, from Berlin to Strasbourg (2 April 2021)
John Dalhuisen: What is the Council of Europe for? (June 2019)
ESI report: The European Swamp – Prosecutors, corruption and the Council of Europe (2016)
Journal of Democracy, Gerald Knaus: Europe and Azerbaijan: The End of Shame (2015)
ESI report: Caviar Diplomacy - How Azerbaijan silenced the Council of Europe (2012)
Alexey Navalny’s rise to becoming Vladimir Putin’s most feared critic began in 2011 when he set up a foundation to expose corruption, combining detailed investigations presented in snappy videos, with slogans that went viral. Since then he has been detained a dozen times for participation in protests, been convicted twice on bogus fraud charges in 2013 and 2014, barred from running in the 2018 presidential elections, and attacked three times, in 2018, 2019 and, almost fatally, in August 2020. Travelling back to Moscow from Siberia by plane, he was poisoned with the military-grade chemical agent Novichok and fell into a coma. He owes his life to German doctors who treated him for months after he was evacuated to Berlin two days later.
On his return to Moscow on 17 January 2021, he was detained once again, for violating the terms of the suspended sentence he had received in the 2014 fraud case (declared arbitrary and unfair by the Strasbourg court) by not regularly reporting to the Russian police, including during the time he was in Germany. Two weeks later, a Russian court confirmed the violation and converted the suspended sentence from 2014 into a prison sentence of 2 years and 8 months.
In response to Navalny’s 20 applications since 2011, the European Court of Human Rights (ECtHR) has so far – usually with a delay of a few years - delivered 7 judgements covering 11 of his applications, with all the rulings in Navalny’s favour. It has declared the two fraud convictions from 2013 and 2014 miscarriages of justice, and four of his detentions politically motivated. While Russia has paid the compensation awarded by the court, it has not quashed his sentences or stopped harassing him. Instead it has shown contempt for the court. When the court ordered Navalny’s immediate release as an interim measure on 16 February, the Russian justice minister responded that this request would not be met because it was “baseless and unlawful”.
Rulings of the ECtHR are binding. The European Convention of Human Rights obliges member states of the Council of Europe “to abide by the final judgment of the Court in any case to which they are parties” (Article 46.1). Russia’s record in implementing ECtHR rulings is the second-worst among all member states, after Azerbaijan. It has implemented only 41 percent of all rulings (1,259 out of 3,056). If one looks at “priority cases” – cases that the Committee of Ministers considers particularly important - Russia is the worst culprit: 61 out of 82 have still not been implemented.
The Council of Europe has procedures to establish if a member state is violating its obligations. There is the so-called Article 46.4 procedure set out in the Convention under which the court can confirm the non-implementation of a judgment; and there is a new “complementary procedure between the Committee of Ministers and the Parliamentary Assembly in response to a serious violation by a member state of its statutory obligations”. However, they can take years and both lead back to the same place - the Committee of Ministers, where the 47 member states are represented. At the end of each procedure, the Committee has to decide on the course of action. These procedures would be distraction.
In Navalny’s case there is no need to establish non-compliance: it is obvious. There is no ambiguity over the measure required: his release. The Committee of Ministers should give Russia a simple choice now: release Navalny or face suspension.
Article 8 of the Statute of the Council of Europe stipulates that, “Any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw.…” The mentioned Article 3 commits all members to “accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council…” A decision on suspension would require a two-third majority, and so would the decision to threaten suspension.
The Council of Europe was created in 1949 as a club of democracies. The idea was to help them remain democracies, through the Convention of Human Rights, the court, peer reviews, discussions and other mechanisms. One of the spiritual fathers of the Convention, Pierre-Henri Teitgen, a French resistance fighter during the war and later minister of justice, explained:
“Democracies do not become Nazi countries in one day. Evil progresses cunningly, with a minority operating, as it were to remove the levers of control. One by one, freedoms are suppressed, in one sphere after another. It is necessary to intervene before it is too late. A conscience must exist somewhere which will sound the alarm in the minds of a nation menaced by this progressive corruption, to warn them of the peril."
This system assumes that each member state wants to keep the peril away, by collaborating sincerely and effectively. When this willingness is lacking, it is wiser for the club to be ready to protect itself from the subversive influence of this member state than to continue with business as usual.
The Council of Europe has bent over backwards to accommodate Russia in recent years, arguing that its membership gives Russian citizens much-needed access to the court. But this access is of little value if its most important rulings can be ignored.
The Russian state has occupied part of the territory of one fellow member of the Council of Europe (Georgia) and annexed part of another (Ukraine). It tolerates neither protest, nor any serious political opposition. It locks up its critics. It kills perceived enemies, both abroad and at home. It is time that the Committee of Ministers draws a red line.