The Comment of SC Judge Tetiana Antsupova on the Exclusion of Russia from the Council of Europe

On March 16, 2022, at an extraordinary meeting, the Committee of Ministers of the Council of Europe, in the context of the procedure initiated in accordance with Art. 8 of the Statute of the Council of Europe decided that the Russian Federation shall terminate its membership in the Council of Europe as of that date.

The day before this decision, on March 15, 2022, the Minister of Foreign Affairs of the Russian Federation submitted an application to the Secretary General of the Council of Europe on the voluntary withdrawal of the state from the organization, informing about the intention to denounce the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (hereinafter referred to as the Convention) in accordance with paragraph 1 of Art. 58 of the Convention.

It should be noted that in the said statement the Secretary General of the Council of Europe was only informed of the “intention” to denounce the Convention. The procedure for the denunciation of any international treaty takes place, in particular, in accordance with Articles 65, 67 of the Vienna Convention on the Law of Treaties of 1969 (hereinafter referred to as the Vienna Convention), as well as in accordance with the provisions of Art. 58 of the Convention. The Convention specifies that "A High Contracting Party may denounce this Convention only [...] six months after the submission of the relevant notification to the Secretary General of the Council of Europe, who shall inform the other High Contracting Parties accordingly".

The consequences of the termination of the treaty are provided for in Art. 70 of the Vienna Convention:

«1. Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention:

1. a) releases the parties from any obligation further to perform the treaty;

1. b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.
2. If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that State and each of the other parties to the treaty from the date when such denunciation or withdrawal takes effect."

This means that for all violations of the Convention in the period up to the expiration of the six-month period after the filing of a written application for denunciation, the Russian Federation must be held accountable as a party to the international treaty. All violations of the Convention during this period fall under the jurisdiction of the European Court of Human Rights, whose decisions must be enforced. We have no illusions about the Russian Federation, but we remember that the decision of the international court has been and will be a source of international law, even in the face of radical changes in the international legal order after the war.

The overall consequences of Russia's withdrawal from the Council of Europe for persons under the jurisdiction of the aggressor state are very disappointing and even terrible. Right to life, prohibition of torture, prohibition of slavery and forced labour, right to liberty and security of person, right to a fair trial, no punishment without law, right to respect for private and family life, freedom of conscience and religion, freedom of expression, freedom of assembly and association, prohibition of discrimination, protection of the right to property are far from being a complete catalogue of rights and freedoms, international guarantees for the protection of which the Russian population loses. Just as it loses hope of developing democratic institutions and free elections. It is hope that is lost, because you can’t lose what didn’t exist.

The human rights movement in the Russian Federation, as well as advocacy, is now devoid of meaning and significance. A huge regiment of diplomats and employees who worked in the institutions of the Council of Europe and the Permanent Representation of the Russian Federation to the Council of Europe will be dismissed, but are unlikely to want to return home.

Statements by Russian officials about the advisability of returning to the death penalty as a punishment for especially serious crimes is a very realistic scenario in the near future. In the absence of a fair trial and justice as such, this is a return to the inquisition.

Human life is an absolute value in Europe. The so-called fathers of the Convention drafted its text in the aftermath of World War II in order to never again allow the horrors of genocide and barbarism. By resorting to aggression, genocide of the Ukrainian people and by blatantly manipulating the facts in the text of the statement on secession from the Council of Europe, the Russian Federation has demonstrated that it has never shared those values.

Due to the termination of Russia's membership in the Council of Europe, the legal and political mechanisms of the Council of Europe cease to operate for persons under its jurisdiction. PACE monitoring visits and reports, election observer missions, visits and reports of the Council of Europe Commissioner for Human Rights and many other monitoring mechanisms are being discontinued. Following the decision of the Committee of Ministers of the Council of Europe of 25 February 2022 to suspend the rights to represent the Russian Federation in two statutory bodies, its representation in all committees of the Council of Europe was suspended.

It is likely that after the denunciation of the Convention there will be a long list of other Council of Europe treaties that the Russian Federation will wish to denounce, primarily those that provide for its own monitoring mechanisms.

These are, for example, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 1987, as its monitoring mechanism - the Committee of the same name, and the mechanism of the Convention for the Protection of Human Rights are complementary. Therefore, the minimum standards of detention in the Russian Federation would disappear as a concept along with the cessation of the Committee's inspections.

The aggressor state has made its anti-civilization choice and is constantly moving into the abyss. During the 26 years of its membership in the Council of Europe, the Russian Federation has failed to ensure even the minimum standards of humanity, democracy and the rule of law, constantly blocking the implementation of ECtHR decisions in favour of applicants and inventing national filters for their implementation (as happened at the end of 2015, when the Law on the Constitutional Court of the Russian Federation was amended, with the subsequent confirmation in its case law that the judgments of the ECtHR can be implemented only if they do not contradict the Constitution of the Russian Federation). Russia has long and repeatedly deserved to be expelled from the organization, in clear violation of Art. 3 of the Statute of the Council of Europe, however, each time the motive prevailed to leave this international mechanism for the protection of human rights accessible to the population of the Russian Federation, but not now.