The Council of Europe: a sleeping beauty
16.03.2009 | Andres Herkel | English news
Sometimes it is said, that the Council of Europe is Europe's only value-based organisation. The assertion is based on the fact that the Council of Europe's competence is restricted to the most traditional value spheres: human rights, democracy, free elections, gender quality, rule of law and due process. Other organizations have their own concerns, such as security and economic cooperation. True, adherence to values is also among the prerequisites for becoming a member of the European Union, and in fact experience shows that it is actually the European Union that holds the bar as high as it is. Going by the European Union's yardstick, a number of Council of Europe member states are about as far from EU membership as the moon is from the sun. The European Union gave its biggest discount in admitting Bulgaria and Romania, even though in the context of the Council of Europe, these countries were either partially or completely exempted from monitoring long ago.
However, the most striking characteristic of the Council of Europe is the fact that Russia is a member of the organization and an unceasing source of problems. This is the real source of the devaluation of standards and the constant internal strife that leaves no time for focusing earnestly on serious work toward strengthening democracy.
I would argue that the Council of Europe has gave a discount both by admitting Russia and the countries of the southern Caucasus, and by ending monitoring in Turkey. In spite of the fact that Belarus has not met the acceptance criteria due to Lukashenka's dictatorship, "better in than out" arguments have never ceased and internal pressure for a détente with Belarus continues apace. Among other things, this stems from the fact that the organization includes, alongside Russia, members such as Armenia, Azerbaijan. The two latter countries may have irreconcilable differences over Karabakh, but in other questions they might form a united front of countries that have a controlled democracy. A popular notion in recent times is the idea that smaller countries should not be called to order for lack of democracy, because the situation is worse in Russia. But this leads to a vicious circle - Russia cannot be taken to task just because it is Russia. Let us recall that military aggression against another member state - Georgia - and the subsequent failure to comply with the peace plan did not result in any sanctions.
Thus the Council of Europe is the only organization that according to the letter of the law is based purely on values, yet at the same time these are values that have been on a clearance sale for some time. When Russia became a member of the Council of Europe in winter 1996, Mart Nutt wrote in Postimees that it was the end of the Council of Europe - that in other words, it would soon become a powerless organization, much like the UN or the OSCE. The inconvenient question of whether the Council of Europe has influenced Russia in the direction of democracy or whether Russia has instead influenced the Council of Europe toward less democracy is clearly a salient one. In my opinion, resolving this question in accordance with values will be the number one task facing the incoming general secretary of the Council of Europe, whether his name is van den Brande, Eörsi , Jagland or Cimoczewicz.
The full structure of the Council of Europe consists of a number of interrelated bodies: the Committee of Ministers, the Parliamentary Assembly, the European Court of Human Rights and the Congress of Local and Regional Authorities of Europe. Adjacent buildings house the Council of Europe Commissioner for Human Rights and the so-called Venice Commission, charged with the task of providing advisory opinions to member states in matters of constitutional law. The organization's secretary general, elected by the Assembly, is a political "steward" who has the sole right and duty to speak on behalf of all bodies - i.e. the Council of Europe as a whole.
Actually, the Council of Europe's architecture is fairly well-designed. My experiences as a rapporteur for the Parliamentary Assembly in Azerbaijan confirm that, in the presence of good will and cooperation, various substructures are able to operate effectively and send uniform signals to problem countries. The Assembly's rapporteur exchanges information on a running basis with the secretary general's Special Representative, who keeps his finger on developments at all times. The Assembly's reports set the tone for the diplomats representing the member states in Strasbourg, who visit monitoring subjects periodically accompanied by delegations. If disputes arise within a country with regard to electoral laws, freedom of speech and limits on presidential powers, they go before the Venice Commission, which issues its opinion. If a given member state does not itself request an expert opinion, the Assembly does so at the behest of the rapporteurs. For example, I am currently waiting for an opinion from the Venice Commission regarding the content of a referendum to be held in Azerbaijan, where tens of questions at a time will be brought up before the people, including abolishing the restriction on the number of consecutive presidential terms, currently set at two.
Again, based on my personal experience, I must say that even harder than creating a working atmosphere between the substructures of the Council of Europe is achieving political unanimity on how to evaluate and treat the issues facing a country that is subject to monitoring. My latest experience with presidential elections in Azerbaijan last autumn was that a number of Assembly members displayed a frightening readiness to disregard the general situation with freedom of speech and human rights and focus solely on observation of the procedural flow on election day. In my opinion, this is an extremely dangerous development, for in this way we would quickly find ourselves giving the Assembly's blessing to authentically Soviet-style elections . The only difference is that in the interests of greater credibility, they are no longer chasing 99.9 per cent turnout and as overwhelming a level of support for the "official" candidate. No, it is much more smarter to show Europe 60-70% turnout and support, which in a closed society and controlled democracy can be achieved without resorting to major fraud. Before Azerbaijan, such an election model was employed by Russia - exactly a year ago, Dmitri Medvedev was placed on the presidential throne in the stead of Vladimir Putin.
The other example is how the agenda for Assembly sessions is developed and how quickly initiatives are transformed into reports. In the case of monitoring, a simple rule applies: a major comprehensive report is prepared once every two years. Based on necessity and the discretion of the rapporteurs, supplementary reports may be produced in the interim period, focusing on a more specialized area such as freedom of speech, rule of law, elections or political prisoners. Yet the reports are distributed very unevenly. In a speech given last year, I presented a summary in which I stated that while three monitoring reports had been released on Russia since it became a member in 1996, but other countries with major problems have received much more attention. Seven reports have been issued on Armenia and Azerbaijan, but this occurred in a much shorter period of time - from 2001, when they became members of the Council of Europe.
Russia is not only a country that faces more serious problems, but it also has the greatest population and its territory extends through 11 time zones. How can it possibly be viewed in the same category as microscopic Monaco, which has only one strike against it - a constitutional defect that favours princely rule and a lack of parliamentarism?
Special reports would help focus attention on major human rights problems in large countries. From time to time, such reports have been prepared on persecuted journalists. The main characters in such reports have included the journalist Grigori Pasko, who was convicted of treason in Russia (2003) and the investigative journalist Georgi Gongadze who was murdered in Ukraine in 2000, the investigation of whose case has been bogged down, even after the Orange Revolution. Special reports have been released on the Mikhail Khodorkovsky and Yukos affair in Russia (2005) and on the situation facing the Finno-Ugric peoples (Katrin Saks, 2006). The human rights situation in Chechnya has not received attention from the Assembly since 2005 - although a new report covering the human rights situation in the entire Northern Caucasus is being prepared in the Legal Affairs committee .
In many cases, the initiative for preparing a special report covering one country has been rejected on the grounds that the problem must be included in the supervision committee's general report. For example, the general report on Russia from 2005 is thorough and it is a good document, but four years have passed with no follow-up report. True, in the more charitable view, the last two reports on the Russia-Georgia war could be viewed as special reports on Russia - i.e. a critical alibi for the fact that the primary report was postponed yet another time.
If there is political resolve, the Assembly and the Council of Europe as a whole are capable of very good work. Unfortunately political resolve is not determined only by values but also by the interests of the member states and readiness to stand up for the values. The Assembly operates on the principle of a political parliament, and therefore it is no wonder that in the wake of admitting problem states, the nature of the values itself becomes a matter of heated debate. For example, what is a human rights violation and what is not? Or can a controlled democracy and the imitation of democratic institutions be considered compliance with obligations assumed before the Council of Europe? At critical junctures, sometimes conscience can prevail as in the Assembly's last winter session, when all of the strong formulations dropped by rapporteurs due to Russian back door diplomacy were inserted into the Russia-Georgia resolution in a round of amendment proposals. Unfortunately such a concentrated effort is not made very often.
The Committee of Ministers, which operates on the basis of consensus, has for the most part a weaker grip than the Parliamentary Assembly, and the attempt made by Swedish Minister of Foreign Affairs Carl Bildt to prove that the opposite was true - undertaken in sorting out the Russia-Georgia conflict - did not meet with the hoped-for success.
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To this point, I have discussed the Parliamentary Assembly, since this is the institution that I have direct experience with. Still, I consider the Council of Europe's most effective tool to be the European Court of Human Rights, established in 1959. The court issues its rulings; this is above dispute on the political level. At the same time, there is greater interest in turning to the Court to seek justice, a major part of the increased interest stems from countries where democracy is shackled. There is currently a backlog of 100,000 unresolved court cases. It will thus take years for a ruling to be issued. In the case of the war crimes committed by Russian authorities in the beginning if the second Chechnya war, it would undoubtedly be practical for rulings to be handed down rapidly by the Court. But in fact it took years. Acts that were for the most part committed in 2000 or 2001 were classified by the Court as war crimes only starting in 2006. And the docket is only getting longer.
In 2004, Protocol No 14 to the Convention for the Protection of Human Rights was drafted, its primary goal being to simplify the work of the court - i.e., to clear the proverbial desk of matters with repetitive or clearly inappropriate content. For example, the protocol would allow a single judge and an assistant to carry out an initial examination instead of using a committee of three judges. The President of the Court, Jean-Paul Costa, has expressed an opinion that implementing Protocol 14 would reduce the case load by about 25%. Currently, for the third year in a row, there is a situation where ratification of the protocol requires a decision by Russia to proceed. This is intentional sabotage of Court of Human Rights reform process. On what motives is this being done? I think that putting the brakes on court cases that are inconvenient for Russia is only one part of the reason. In fact, this foot-dragging is hampering the functioning of the entire organization. If Russia would take it upon itself to ratify protocol 14 after all at some point, we could predict a "long-term sense of gratitude", that would help drop other issues related to Russia from the agenda for some time.
It is naïve to think that Protocol 14 alone would help resolve the problems that have come up before the Court of Human Rights in the last few decades. In addition to the sheer quantity of appeals, the court is also facing essential dilemmas. In the vision of Old Europe, the Court of Human Rights exists as a beacon to shine light into grey areas that are intellectually interesting and where international jurisprudence is lacking. After the energetic enlargement of the organization, it now finds itself having to deal with defects in the domestic judicial system. It turns out that the judiciary is not independent in all countries, after all; it can be bought or used by the executive branch as a tool for political repression. In such a situation, the European Court of Human Rights is actually the only place where some sort of justice can be had.
The two abovementioned contexts for intervention could not be more unlike each other. One case might involve a very complicated and, for Western Europe, sensitive issue concerning morality, such as euthanasia. Another case might be a simple fabrication where the court must substantiate that the accusation brought against a journalist who was critical of a government was a sham or improper in form. Thus the court has to operate according to two different paradigms - handing down substantive law, and performing supervision in order to keep legal nihilism in check. It will undoubtedly become clear in the course of this activity how different our continent really is.
The importance of the time factor cannot be greater. In April 2006, leading Azeri journalist Einulla Fatullayev was given a long prison sentence. He was accused of incitement to terrorism after he speculated in an newspaper editorial about a possible role for Azerbaijan in a war against Iran. Fatullayev was also convicted of defaming the state and defiling the memory of those killed in the Karabakh conflict. In a series of articles based on refugees' recollections, called "A Karabakh Diary", he mooted a version that Armenians were not the only ones to blame in the killing of a number of civilians in the Hodzhaly tragedy in 1992 (which the Azeris often call a genocide). If Fatullayev's article is to be believed, partial responsibility also resides with Azerbaijan's armed forces, who conducted themselves poorly and disseminated misinformation to the population. In September 2006, Fatullayev sought recourse from the European Court of Human Rights.
As a rapporteur, it is not possible for me to neglect to give my own evaluation of the Fatullayev case. Besides the Council of Europe, his imprisonment has been criticized by the OSCE, Reporters without Borders and a number of human rights organizations. Fatullayev is a symbol of freedom of speech denied. In reality, he penned a number of articles that were significantly more critical of the authorities than the ones for which he was convicted. Yet nothing will have been settled with finality until the Court of Human Rights has issued its ruling. In such a situation the logjam at the Court is very unpleasant. Delaying the work of the Court certainly does not interfere with the work of just one rapporteur, but the activity of the Council of Europe as a whole.
New measures are also being implemented in order to further entrench the logjam. Last autumn, the Court was flooded with around three thousand complaints against Georgia, all in the same content and style, all tied to alleged human rights violations in South Ossetia. As noted above, all of these cases must be examined by a three-judge committee. On one hand, it is difficult to hold anything against anyone, as everything conforms to procedure. Yet it is obvious that the large number of petitions was something achieved by a well-directed campaign. This is very different from the complaints brought against Russia in the second Chechnya war, where people risked their own and their relatives' lives and safety. The reports issued by the Assembly and other human rights organizations have also detailed cases in which an appellant to the Court of Human Rights or their relatives have had to endure repressions and persecution.
In short, the problems facing the Court of Human Rights can be likened to two knots in need of unravelling. The system was created half a century ago for an organization with few member states, and now it has clearly outlived its usefulness. The number of court cases was fairly small decades ago, but today, it is a different picture. It is actually the second coming of the same problem, as a reform carried through in 1998 installed permanent judges for the first time. The goal was the same - to cope with a growing number of appeals. The other problem is directly related to Russia. It is likely that Russia wants to belong to the Council of Europe but not be a member of the European Court of Human Rights system. Because this option is not possible, they have resorted to torpedoing the work of the court.
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If we generalize the comments made regarding the Court, we come to the conclusion that the Council of Europe has long ceased to be the organization it was created to be in 1949. Back then, it was a community of democratic countries that adopted a stance in opposition to another bloc of countries with an undemocratic system. After the Berlin Wall came down, there was an illusion that the spread of democracy would be painless, and that countries cold be admitted at a discount in order to accelerate democratization. But in fact it was this very discount, offered to Russia in 1996, that has proved the source of great problems. Back then, it was expected that Russia would resolve the Chechnya question in a peaceful manner, but in fact a new, even bloodier war ensued, and fragile democracy took a major step in reverse in the Putin era.
Yet it cannot be said that the Council of Europe has been painted into a corner. The structure is in working order; there just needs to be the political will to implement the structure more effectively. The current situation is characterized by the fact that a number of countries are opting for the use of political tactics to deflect criticism. Work toward better compliance with standards human rights and democracy is relegated to the background. The battle for conformity to standards has largely been supplanted with the fight for standards as such. This is overtly a political battle, where geopolitical interests and other such considerations are being pitted against values.
It is for this reason that the Council of Europe is reminiscent of a sleeping beauty, not to mention the Frog Prince, waiting for a kiss to re-awaken it to life.
Published in Diplomaatia, March 2009
Source: www.herkel.net
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