The late Russian president Boris Yeltsin once said his country’s entry into the Council of Europe would help create a “new, greater Europe, free from dividing lines” and “united by common democratic principles”. More than two decades on, such lofty rhetoric around the institution charged with guarding a continent’s fundamental freedoms is in danger of being drowned out by a political battle that has exposed faultlines in east-west relations and the wider international multilateral order.
In Strasbourg on Monday, MPs from Ukraine and a handful of other countries are expected to mount a final effort to try and stop the 47-member body agreeing to end Russia’s five years of estrangement from the organisation that was sparked by its 2014 annexation of Crimea. Opponents say the plan to bring Moscow back in from the cold risks compromising the very ideals that brought the council into being as a post-second world war bulwark against atrocities and arbitrary state power.
“This would be the unilateral surrender of the Council of Europe to Russian demands,” says Dmytro Kuleba, Ukraine’s ambassador to the council, who fears the body’s parliamentary assembly will on Monday rubber-stamp a decision, taken in May by foreign ministers, to allow Moscow’s return.
“What’s happening now, to help Russia, will actually undermine human rights and the protection of the rule of law across Europe,” says Mr Kuleba. That characterisation — contested by Moscow and other council members — is an indication that the skirmishes at the institution’s fortress-like headquarters in Strasbourg will continue whichever way the MPs’ vote goes.
The dispute is a sign of the troubles engulfing an institution that has played a big role in checking state power in the seven decades since it was lauded by Winston Churchill as a way to bring human rights abuses to the “judgment of the civilised world”.
The council’s woes — from funding pressures, to heavy caseloads and the enforcement of judgments — have been further aggravated by a rise in assertive nationalism in parts of Europe.
At an event in Helsinki in May to mark the council’s 70th anniversary, Sauli Niinistö, president of Finland, which then held the body’s rotating presidency, warned that the institution was “going through its biggest political, economic and institutional crisis”.
The council has long laboured in a relative obscurity that belies its importance. Its mandate is to uphold the civil liberties, democracy and rule of law commitments enshrined in the European Convention on Human Rights and enforced by the European Court of Human Rights. It is a remit that covers 820m people. Together the two Strasbourg-based bodies are a major part of the architecture of modern Europe.
“It’s really important particularly now — as we see the rise of these far-right populists — that we maintain the strength of institutions like the Council of Europe,” says Philip Leach, head of the European Human Rights Advocacy Centre at Middlesex University. The centre has won several cases at the European Court of Human Rights, including a 2017 action involving almost €3m in compensation from Russian authorities for victims and relatives in the 2004 Beslan school siege, which left 334 people dead. “It is under threat and we need to see the bigger picture of the value it has given and continues to give,” adds Mr Leach.
The court has long acted as a constraint on governments in both autocratic and democratic states. It has powers to stay official actions such as the return of migrants by EU states to Libya, make findings of fact against authorities and order them to pay compensation to activists or others they are found to have wronged. High-profile cases have included the judgment that long delayed the UK deportation of the radical Islamic preacher Abu Qatada to Jordan, to the 2014 ruling that Russia must pay €1.9bn damages to shareholders of the defunct Yukos oil company.
The Yukos case is one of several reasons that Moscow’s relationship with the council has become so turbulent. In November the court further irritated the Kremlin by ruling that repeated arrests of Russian opposition leader Alexei Navalny were politically motivated.
Senior council officials warn of the risks of a further rupture with Moscow. Thorbjorn Jagland, secretary-general — whose successor is due to be chosen on Wednesday — said in April that Moscow’s forced or voluntary departure would create a “new dividing line” on the continent and rival Brexit in its capacity to “really shake up Europe”.
The Russia spat began in 2014 after the council’s parliamentary assembly suspended Moscow’s voting rights for two years as punishment for the Crimea occupation. The Kremlin responded by refusing to send delegates even after the sanction expired. Then, in 2017, it halted its scheduled €32.6m contribution to the council’s annual €316m budget, paving the way for Moscow to be expelled this year for non-payment.
Foreign ministers have now brokered a deal that would end the threat of expulsion for non-payment. If agreed on Monday, it would allow Russian delegates to rejoin the parliamentary assembly for the vote two days later on the next secretary-general.
One European ambassador to Moscow told the Financial Times that both sides were confident the deal would pass, but that officials would be haggling over the small print up to the last minute. “It seems we found a way to make it stick,” the diplomat says.
The official reaction to the proposed deal has been muted in Moscow. Nationalist politicians have criticised Russia’s treatment in the council and condemned membership as a waste of money. Supporters, both in Russia and outside, counter that the council is a crucial line of communication between the Kremlin and European capitals.
“It will not be easy to sell this outcome to everyone,” says Andrey Kortunov, director-general of the Russian International Affairs Council, a state-backed think-tank. “Some will say this is appeasement and rewards Russia for bad behaviour . . . here in Moscow there are people who will say: ‘Now we have to pay this money and they will just criticise us.’”
Critics of the deal accuse Moscow of in effect blackmailing the council and its fellow members into submission, reflecting an unhealthy financial dependence on Russia and four big western European countries for well over half its budget.
They point to deeper problems in Moscow’s relationship with the Strasbourg institutions, notably a 2015 decision by Russia to give its constitutional court the power to overrule judgments handed down by the European human rights court. In 2017, the Russian court said the compensation award to the Yukos shareholders was unconstitutional. The Council of Europe called the ruling a “matter of concern”, but says the case is now the subject of talks between Moscow and fellow member states.
“We are not fighting Russia, we are defending rules and principles,” insists Egidijus Vareikis, a Lithuanian member of the council’s parliamentary assembly, who plans to oppose the deal to rehabilitate Moscow. “In the future there will be more and more such exceptions and the council will be a weaker and weaker organisation”.
Mr Kuleba believes there is something more fundamental at stake than just one vote. “What we are seeing here is institutional collapse,” he says. “The biggest question we are asking ourselves now is: if this can happen at the Council of Europe, where will it happen next?”
Turkey once proudly celebrated its bona fides as a Council of Europe member, commissioning a €38m headquartersfor its mission to Strasbourg and voluntarily making overpayments to the organisation’s budget. But that goodwill has evaporated as the country’s president, Recep Tayyip Erdogan, has drawn accusations of adopting an ever more authoritarian style of rule.
The simmering tension became a crisis in the aftermath of an attempted coup in July 2016 when Mr Erdogan hit back hard after the violence left 250 people dead. He declared a state of emergency and ordered a sweeping crackdown against military personnel and others accused of taking part in the plot, including teachers, academics, bureaucrats, members of the judiciary, opposition politicians and journalists. Tens of thousands of people were jailed and 130,000 public servants dismissed.
The clampdown triggered a wave of European human rights court claims from Turkish citizens, peaking at between 1,000 and 1,500 applications a week at one stage. It was a workload that would have challenged any organisation, let alone one already struggling with limited resources and an already large — if falling — case backlog. Turkey is one of four countries — the others are Russia, Romania and Ukraine — that account for almost two-thirds of the 50,000court applications that were pending on January 1.
Turkish human rights groups and some in civil society are fiercely critical of the court’s response. Three years on from the coup attempt, the European court has issued rulings on just four of the more than 36,000 applications it has received — most of which have been dismissed — related to the failed plot.
Although it accepted some of the grievances put forward by a jailed senior judge, opposition leader and two journalists whose cases it has considered, the court has repeatedly stated that Turkey’s justice system offers an “effective remedy” to pursue before applying to the Strasbourg court. It has maintained that stance even as the constitutional court has come under attack by Turkish politicians, been ignored by lower courts and shied away from adjudicating on presidential decrees issued under the state of emergency.
Kerem Altiparmak, a leading Turkish human rights lawyer, says the European court is wrong to call on alleged victims to seek justice from a domestic legal system that is not credible — a claim rejected by Ankara. “I understand under normal conditions this insistence on pursuing local remedies,” he says. “But it’s so obvious, when you read all the reports by independent observers, that there is a huge issue with the independence of the Turkish judiciary.”
Lawyers in the country have also raised concerns about Strasbourg’s support for a special commission set up by Turkey in 2017 to judge applications from dismissed civil servants – including 30,000 made to the European court. Many domestic observers say the body is not independent. As of last month, it had reinstated only about 5,000 of the 70,000 peopleon whose cases it had ruled. The Council of Europe says that the credibility of the commission is under continuous review.
Turkish critics say the council has been played by Turkey, which has learnt how to use legal and political games to manipulate it.
Hisyar Ozsoy, an MP with Turkey’s opposition Peoples’ Democratic party and a member of the Council of Europe parliamentary assembly that will be voting on Monday, argues that the Strasbourg institutions need to find ways to get tougher on members that ignore their core values. “When you become a member of a golf club, you have to pay fees, there are certain regulations to follow, otherwise you lose your membership,” he says. “If the council does not ensure that member states fulfil their obligations, then it may turn into an institution that is less serious than a golf club.”
The council dismisses the analogy as unfair, not least because of the impact of work done by its Venice Commission legal advisory body in raising concerns about Turkey and other member states. It points to praise offered to it by senior European politicians such as Heiko Maas, Germany’s foreign minister, who last month described the body as a “stronghold of international law”. It also says it does criticise member states when needed, including a warning by the secretary-general to Turkey to ensure “democratic guarantees” in its rerun of elections in Istanbul on Sunday.
Even Turkish critics believe their government still cares about what the Strasbourg institutions do and say. The country’s economy is deeply dependent on flows of foreign capital from Europe and it is in accession talks to join the EU, even if these are moribund.
The Turkey case goes to the core battle for the future of the council and the court. If they start to fragment, millions of people from Iberia to Siberia risk losing access to a crucial postwar restraint on state power.
“It is important for us that the European Court is strong, in the eyes of the peoples of Turkey and the country’s civil society,” says activist and journalist Evin Baris Altintas, who heads the Istanbul-based Media and Law Studies Association. “At the end of the day it’s still the only place that we can go.”