Mr Jörg POLAKIEWICZ
Russia's explusion from the Council of Europe - communication to the 62nd meeting of the Committee of Legal Advisers on Public International Law (CAHDI)
Strasbourg (hybrid), 24 March 2022
Dear CAHDI experts and colleagues,
- The world is no longer the place it was before 24 February last. The horrors of war have traced their way back into our lives.
- It is with the strong belief that only a rule-based international community can secure peace and stability that I welcome you today, the numerous attendees in the room as well as those participating online, to this 62nd meeting of the Committee of Legal Advisers on Public International Law.
- Never has it been more important to meet and debate questions of common concern of international law and order. Never before have the stakes been so high for peace, international cooperation and diplomacy to prevail over war and suffering.
- As has been the practice, I will present to you the most important developments within the Council of Europe since we met last time six months ago. Owing to the current circumstances, I will hereby concentrate mostly on the developments related to the aggression by the Russian Federation against Ukraine and its consequences for Russia’s membership in the Council of Europe.
- Aggression of the Russian Federation against Ukraine
- During the last three weeks, the Committee of Ministers adopted a series of important decisions in an unforeseen pace. Meeting already on 24 February, the day when the military invasion began, in the first of numerous extraordinary sessions to follow, the Deputies, while condemning the armed attack on Ukraine in violation of international law and urging the Russian Federation to immediately and unconditionally cease its military operations in Ukraine, decided to examine without delay, and in close co-ordination with the Parliamentary Assembly and the Secretary General, the measures to be taken in response to the serious violation by the Russian Federation of its statutory obligations as a Council of Europe member State.
- On the next day, on 25 February 2022, the Ministers Deputies agreed to suspend the Russian Federation from its rights of representation in the Council of Europe in accordance with Article 8 of its Statute and gave immediate effect to this decision in respect of the rights of representation in the Committee of Ministers and in the Parliamentary Assembly. Article 8 provides for this measure in case of a serious violation of Article 3 of the Statute, which recalls the obligation of the member States to abide by the intrinsic values of the Organisation – human rights, democracy and the rule of law. Under suspension the State in question remains a member of the Organisation; it retains the rights and obligations reaching to its position as a member State and is hence, for instance, required to pay its annual contribution to the Organisation’s budget.
- The exact legal and financial consequences of the suspension were laid out in a resolution of the Committee of Ministers adopted some days later, on 2 March 2022. The Committee of Ministers disposes of a certain discretion in this respect. Apart from the suspension of representation rights on the statutory organs and their subsidiary bodies, the Committee of Ministers set the suspension of the Russian Federation to cover also intergovernmental committees, such as the CAHDI, as well as the Congress of Local and Regional Authorities and its subsidiary bodies. The suspension did explicitly not cover the Russian Federation’s right of participation in partial agreements of which it was a member or observer. Due to the time pressure such decisions, while legally thinkable, were left for possible subsequent resolutions. Moreover, the suspension of the Russian Federation could not affect its position as a Contracting Party to those conventions and agreements concluded in the framework of the Council of Europe, which it has ratified or signed without reservation as to ratification. As a Contracting Party to Council of Europe treaties, the Russian Federation also retained the right to participate in the work of bodies set up under the provisions of the said treaties.
- Article 8 is a complex and in some parts rather obscure provision which had never been applied in the past. It has been subject of divergent interpretations, in particular as regards the sequence of decisions to be taken (suspension, invitation to withdraw, exclusion) and its relationship with Article 7 which deals with a voluntary withdrawal.
- The only precedent in the history of the Organisation dates back to 1969, to the famous Greek case. However, not only is the Council of Europe a very different organisation today than it was in the 1960s or 70s. Also, the facts of the Greek case are not comparable to the ones we are faced with today. In 1969, the PACE recommended to the Committee of Ministers to take action against Greece, “having regard to Articles 3, 7 and 8 of the Statute”. Before the Committee could vote on the recommendation of the PACE, however, Greece announced its withdrawal from the Organisation at a Committee of Ministers meeting in Paris on 12 December 1969. Greece’s withdrawal from the Organisation was hence wound up under Article 7 of the Statute, as a voluntary act, which took effect only on 31 December 1970 due to the applicable deadlines. A procedure under Article 8 of the Statute had never been launched by the Committee of Ministers.
- In recent weeks the question regarding the relationship between Articles 7 and 8 of the Statute became a major one. I am happy to answer your questions in this regard, but personally I do not think that we should dedicate too much of our precious meeting time to this issue. I would only like to highlight the following four points:
- Armed aggression by one member State against another is probably the worst thinkable scenario of a violation of the fundamental values of this Organisation, and consequently of article 3 of the Statue.
- The final result of procedures under Articles 7 and 8 is the same: a member State ceases to be a member of the Organisation. However, the two procedures differ by purpose, scope and preconditions. Article 7 provides for a unilateral and voluntary withdrawal, where the concerns are mainly of budgetary nature.
- On 15 March 2022, the Secretary General received a communication signed by the Russian Foreign Minister, Mr Sergey Lavrov, informing about the withdrawal of the Russian Federation from the Council of Europe and its intention to denounce the European Convention on Human Rights.
- Having been officially consulted by the Committee of Ministers, the Parliamentary Assembly adopted on 15 March 2022, a couple of hours after reception of Mr Lavrov’s letter, its unanimous opinion that the Russian Federation could no longer be a member State of the Organisation.
- On 16 March 2022, the Committee of Ministers decided “that the Russian Federation ceases to be a member of the Council of Europe as from 16 March 2022.”
- I wish we could have consulted the CAHDI on many of the unprecedented legal questions that we were faced with during the expulsion procedure and in its aftermath. But innovative legal solutions were needed so urgently that no time could be lost. You will, however, have the possibility to debate especially some of the treaty law implications of the expulsion of the Russian Federation from conventions concluded in the framework of the Council of Europe later during your meeting. I am looking forward to these discussions.
- I will hence limit myself here to enumerating only some of the legal consequences of the cessation of the membership of the Russian Federation in the Council of Europe as outlined in Resolution CM/Res(2022)3 of the Committee of Ministers adopted on 23 March 2022, i.e. yesterday.
- As a starting point, as of the day the Russian Federation ceased to be a member of the Council of Europe (16 March 2022), it will no longer be able to lay claim to any right nor be regarded as bound by any obligation deriving from the Statute or connected with the membership thereof, subject, however, to the obligations, including financial obligations, which it has assumed under the Statute in respect of any fact prior to cessation of its membership in the Organisation.
- In addition to the lost representation rights already covered by the suspension, the Russian Federation ceases to be a member of a series of partial or enlarged agreements to which it was a member, including the Venice Commission.
- Any participation by the Russian Federation in activities and programmes organised by or conferences convened by the Council of Europe will henceforth be governed by the provisions in force or practices applicable to participation by non-member States.
- Regarding the participation of the Russian Federation in the Council of Europe’s conventions, the Russian Federation will continue to be a Contracting Party to those conventions and protocols concluded in the framework of the Council of Europe, to which it has expressed its consent to be bound, and which are open to accession by non-member States. These include European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the Framework Convention for the Protection of National Minorities and Data Protection Convention 108. The full list can be found here. The modalities of the Russian Federation’s participation in these instruments will be determined separately for each of them by the Committee of Ministers or, when appropriate, by the State Parties. As already mentioned above, the CAHDI is invited to provide an input on the case-by-case examination of these modalities.
- Following its expulsion, the Russian Federation cannot remain a Party to the European Convention on Human Rights. As a so-called ‘closed’ legal instrument the Convention is only open to Council of Europe member States. Other ‘closed’ treaties of which the Russian Federation ceased to be a Party on 16 March include the European Social Charter and the European Charter of Local Self-Government. The relevant notification can be found here.
- As to the effects of the expulsion from the Council of Europe on the status as a Contracting Party to the Convention, we are again faced with a rather obscure provision which had so far never been applied, Article 58 (3) of the ECHR: “Any High Contracting Party which shall cease to be a member of the Council of Europe shall cease to be a party to this Convention under the same conditions.” “Under the same conditions”, which in the French version is formulated (“sous la même réserve”) in singular form, can theoretically be read to apply to both preceding paragraphs, to the second only, or to none.
- This is a highly important and practical question. On its answer depended not only the fate of some 18,000 applications introduced by or against the Russian Federation that are currently pending before the Court, including interstate applications such as the ones related to Crimea or flight MH17. The question was also whether it will still be possible for any person under Russian jurisdiction, or indeed other High Contracting Parties, to introduce applications within the next six months or maybe even thereafter, provided that they relate to facts having occurred prior to the end of the six-month period specified in Article 58 (1) of the ECHR.
- Thus, 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. Furthermore, 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 was lifted with immediate effect.
- It is obvious that it may not be easy in practice for the Court to master the task of continued processing of applications against the Russian Federation in this interim period. However, accountability of the Russian Federation for its action and the rights of the applicants to get their voices heard have a weight that must not be ignored.
- In this context, I would also like to draw your attention to the fact that the Committee of Ministers decided, as regards the execution of ECHR judgments, that it will continue to supervise the execution of the judgments and friendly settlements concerned and that 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.
- To conclude this point, I should also mention that the Ministers’ Deputies decided, on 17 March 2022, to suspend the rights of Belarus to participate as observer or in any other capacity in meetings and activities of the Council of Europe. This suspension equally included intergovernmental committees and thus also the CAHDI. These decisions were prompted by the active participation of Belarus in the aggression of the Russian Federation against Ukraine.
- Other developments regarding the ECHR
- I can inform you of derogations made by Contracting Parties under Article 15 of the Convention. With a note verbale dated 2 March 2022 the Government of Ukraine notified the Secretary General of the Council of Europe about the imposition of martial law on the whole of its territory and the introduction of a state of emergency in separate regions of Ukraine, and, accordingly, the derogatory effect of the related measures on Ukraine’s obligations under the Convention for an initial period of 30 days.
- The Republic of Moldova notified, with a note verbale to the Council of Europe Secretary General dated 4 March 2022, the introduction of a state of emergency, siege and war on the entire territory in view of the situation related to the regional security and the menace to the national security.
- In the context of the execution of the Court’s judgments, I should mention that in the case of Kavala v. Turkey the Committee of Ministers has initiated infringement proceedings under Article 46 § 4 of the Convention against the respondent State. As formally notified to Turkey at the Human Rights meeting of the Committee on 2 December 2021, the Committee of Ministers decided, by interim resolution of 2 February 2022,  to refer to the Court, the question whether Turkey has failed to fulfil its obligation under Article 46, paragraph 1, of the Convention, i.e., to abide by the final judgment of the Court in a case to which it is a party. The views of Turkey on the question raised before the Court were appended to the interim resolution.
- I should stress that this is only the second time in the history of the Court that infringement proceedings under Article 46 § 4 of the Convention have been initiated against a member State. You of course remember the first time when, in 2017, the Committee of Ministers launched such proceedings in the case of Ilgar Mammadov v. Azerbaijan. In 2019, the Court confirmed Azerbaijan’s failure to fulfil its obligation to execute the Ilgar Mammadov judgment of 2014, and, subsequently, the Supreme Court finally quashed the applicants’ convictions and awarded them compensation for non-pecuniary damage resulting from their unlawful arrest and imprisonment.
- Second Additional Protocol to the Budapest Convention on Enhanced Co-operation and Disclosure of Electronic Evidence
- Under the current circumstances good news are rare. The only humble piece of good news I can share with you is the opening for signature of the Second Additional Protocol to the Budapest Convention on Enhanced Co-Operation and Disclosure of Electronic Evidence on 12 May 2022 in Strasbourg.
- The Protocol will provide for innovative tools to obtain the disclosure of electronic evidence, including through direct cooperation with service providers in other Parties and more efficient ways of public-to-public cooperation. Two articles permit instant cooperation in emergency situations where lives are at risk. The draft Protocol also promotes joint investigations by Parties. These tools are accompanied by a set of safeguards to protect human rights and fundamental freedoms, including in particular, a detailed article on the protection of personal data.
- The brutal and illegal war in the middle of our continent has led to a robust and principled response of our Organisation. The exclusion of the Russian Federation is not the end of the pan-European character of the Council of Europe, it is the moment at which we need to stand up for our values.
- It is an irony of history that it was the brilliant Soviet jurist Aron Trainin who forcefully advanced the idea of individual responsibility for the crime of aggression, at the time called ‘crime against peace’, the realisation of which was established during the Nuremberg Trials. Even though there is little prospect that Putin will appear before the ICC and little chance that today’s Russia will abide by decisions of the ICJ or the ECtHR, international law remains one of Ukraine’s most powerful weapons against Russia.
- International law has not lost its normative power. It was the law that brought together an unprecedented global coalition to oppose the Russian intervention through determined and meaningful action, fully in conformity with the applicable legal norms.
- I would like to end my communication with a quote by Prof. Oona Hathaway: “Unified and sustained legal condemnation of the invasion is essential not only to sustaining hope for a future in which Ukraine is free and independent but also to maintaining an international legal order founded on the principle that might cannot make right.”
- I wish you a smooth and fruitful meeting. The Secretariat rests at your disposal for all questions you may have.
- Thank you very much for your attention.
 CM/Del/Dec(2022)1426bis/2.3, decision adopted by the Committee of Ministers on 24 February 2022 at the 1426bis meeting of the Ministers’ Deputies.
 CM/Del/Dec(2022)1426ter/2.3, decision adopted by the Committee of Ministers on 25 February 2022 at the 1426ter meeting of the Ministers’ Deputies..
 Resolution CM/Res(2022)1 on legal and financial consequences of the suspension of the Russian Federation from its rights of representation in the Council of Europe, adopted by the Committee of Ministers on 2 March 2022 at the 1427th meeting of the Ministers' Deputies.
 CM/Del/Dec(2022)1429/2.5, decision adopted by the Committee of Ministers on 17 March 2022 at the 1429th meeting of the Ministers’ Deputies
 H46-37 Kavala v. Turkey (Application No. 28749/18), Interim Resolution CM/ResDH(2021)432, adopted by the Committee of Ministers on 2 December 2021 at the 1419th meeting of the Ministers' Deputies.
 H46-37 Kavala v. Turkey (Application No. 28749/18), Interim Resolution CM/ResDH(2022)21, adopted by the Committee of Ministers on 2 February 2022 at the 1423rd meeting of the Ministers' Deputies.