B Explanatory memorandum
by Mr Stefan Schennach, rapporteur
1 Introduction
1. On 25 January 2021, with the
support of more than 30 members of the Parliamentary Assembly present in
the Chamber and/or following the proceedings via videoconference
belonging to at least five national delegations, Ms Mariia Mezentseva
(Ukraine, EPP/CD) challenged the still unratified credentials of
the Russian delegation on substantive grounds on the basis of Article
8 of the Rules of Procedure of the Parliamentary Assembly. On the
same day, the Assembly agreed to the proposal from the ALDE political
group, supported by the Bureau, to hold a current affairs debate
on “The arrest and detention of Alexei Navalny in January 2021”.
2. The substantive grounds on which the credentials were challenged
refer to serious violations of the basic principles of the Council
of Europe enshrined in Article 3 and the Preamble of its Statute
(ETS No. 1), the deterioration of the situation in the Russian Federation
with regard to the rule of law and democracy, the respect for basic
freedoms and human rights, in particular freedom of expression,
assembly and association, the arrest and ongoing detention of Mr Navalny
and, more generally the compliance of the Russian Federation with
its commitments and obligations in the Council of Europe and with
recommendations included in Assembly
Resolution 1990 (2014),
Resolution
2034 (2015),
Resolution
2063 (2015),
Resolution
2292 (2019) and
Resolution
2320 (2020).
3. In line with Article 8.3 of the Rules of Procedure, the Committee
on the Honouring of Obligations and Commitments by Member States
of the Council of Europe (Monitoring Committee) was seized for a
report on substantial grounds and the Committee on Rules of Procedure,
Immunities and Institutional Affairs for opinion.
4. At its meeting on 25 January 2021, the Monitoring Committee
appointed me to be rapporteur.
2 Background
5. Since the return of the Russian
Delegation to the Assembly in June 2019, following a three and a
half year self-imposed exclusion from the Assembly’s work, the credentials
of the delegation have been challenged on substantive grounds on
two occasions: immediately after the return in June 2019, and subsequently
in January 2020.
Resolution
2292 (2019) and
Resolution
2320 (2020) adopted on these occasions expressed concerns over a
number of exacerbating negative tendencies with regard to democracy,
the rule of law and human rights having an impact on the fulfilment
of the Russian Federation’s obligations and commitments. Stressing
its commitment to political dialogue, the Assembly resolved to ratify
the delegation’s credentials. They also invited the Monitoring Committee
to present a report on the honouring of commitments and obligations
by the Russian Federation at its earliest convenience.
6. The last report prepared by the Monitoring Committee in the
framework of the monitoring procedure dates back to 2012. In 2016,
an Information Note on the functioning of democratic institutions
in the Russian Federation was prepared and declassified by the Committee.
7. The Monitoring Committee resumed its work with regard to the
Russian Federation immediately after the delegation’s return by
organising a series of hearings with the participation of different
stakeholders, in particular representatives of Russian civil society
and extra-parliamentary opposition as well as other Council of Europe
monitoring bodies, including the Department for the Execution of
judgments of the European Court of Human Rights and the Monitoring
Committee of the Council of Europe Congress of Local and Regional Authorities.
8. In accordance with the Rules of Procedure, representatives
of the Russian delegation from both the majority and opposition
in the Russian Parliament, were invited and took an active part
in the discussions whenever the Russian Federation was on the agenda.
9. The current monitoring co-rapporteurs were appointed in November
2019 (Mr Axel Schäfer, Germany, SOC) and in January 2020 (Ms Ria
Oomen-Ruijten, Netherlands, EPP/CD). Their monitoring visit to the country
was scheduled for March 2020 but had to be cancelled at the last
minute due to the pandemic situation in Europe. Since then, regrettably,
no monitoring visit could be organised because of the ongoing sanitary crisis.
In accordance with long-standing practice in the Monitoring Committee,
direct political dialogue is a key element of the monitoring procedure
and constitutes a necessary condition for the preparation of a report.
As a result, no monitoring report on the Russian Federation has
been finalised and submitted to the Assembly.
10. The co-rapporteurs, however, continue their work and closely
follow the developments with regard to the state of implementation
of recommendations to the Russian Federation included in the above-mentioned resolutions.
They acquire information from a variety of sources including online
meetings with civil society. They have made a number of statements
which are available on the Assembly website and they systematically report
to the Monitoring Committee.
11. A number of reports under preparation in other Assembly committees
refer to specific aspects of the Russian Federation’s obligations
and commitments. I draw particular attention to the reports prepared
by the Committee on Legal Affairs and Human Rights, namely: Political
prisoners in the Russian Federation; Poisoning of Alexei Navalny;
The continuing need to restore human rights and the rule of law
in the North Caucasus region, and other reports which are not country-specific.
3 Major
recent developments and concerns of relevance to the Russian Federation’s
compliance with its obligations and commitments in the Council of
Europe
3.1 Constitutional
amendments
12. The major development in the
Russian Federation in 2020 was the adoption of the constitutional amendments
proposed by President Putin in January 2020. Both the content of
the amendments and the procedure for their adoption raised concerns
as to compliance with democratic standards.
13. Following the request by the Committee on Legal Affairs and
Human Rights, the European Commission for Democracy through Law
(Venice Commission) delivered, in June 2020, an opinion on the draft
amendments to the Constitution related to the execution in the Russian
Federation of decisions by the European Court of Human Rights. It
concluded that the power of the Constitutional Court of the Russian
Federation to declare a judgment non-executable contradicts the
obligations of the Russian Federation under the European Convention
on Human Rights. Moreover, this concern should be seen against the
backdrop of another amendment, namely to Article 83 of the Constitution,
empowering the Council of Federation (Upper Chamber of the Parliament)
to dismiss the judges of the Constitutional Court at the request
of the President. In the Venice Commission’s opinion these amendments
would make the Court vulnerable to political pressure. Regrettably, the
Venice Commission’s recommendations have not been addressed by the
Russian authorities, and the relevant revised Constitution’s articles
are in force thus undermining the authority of the European Court
of Human Rights.
14. In May 2020, the Monitoring Committee requested the Venice
Commission’s opinion on the remaining amendments and the procedure
for their adoption. Regrettably, due to pandemic crisis preventing
Venice Commission’s experts from visiting Moscow, the opinion is
not expected to be delivered before March 2021. However, even without
a legal assessment, a number of concerns may be raised.
15. As a result of the amendments, the Constitution outlaws any
steps aimed at the cessation of territory to another country, thus
making virtually impossible a solution for the Crimea issue in line
with international law, as demanded by the Assembly. A new Paragraph
2.1 is added to Article 67 reading as follows: “The Russian Federation
shall ensure protection of its sovereignty and territorial integrity.
Actions aimed at alienating part of the territory of the Russian
Federation and incitement to such actions shall not be permitted”.
16. On 22 July 2020, the Duma adopted amendments to the law on
“Countering Extremist Activities” aimed at consolidating the amendments
to the Constitution on the protection of territorial integrity and
the prohibition of alienation of territories. According to the new
law, calls “for alienation of territories” will be sanctioned first through
the Code of Administrative Offences and, if repeated, they will
constitute a criminal liability with 6 to 10 years in prison.
17. On 8 December 2020, the President of the Russian Federation
signed laws adopted by the parliament introducing amendments to
the Criminal Code providing for punishment of “calls to violate
the territorial integrity of the Russian Federation (Article 280.1
of the Criminal Code) and actions aimed at alienating part of the territory
of the Russian Federation (Article 280.2 of the Criminal Code).
According to these amendments, a person who has appealed in public
for actions to be taken aimed at violating the territorial integrity
of the Russian Federation, may face criminal persecution.
18. The remaining constitutional amendments covered a variety
of political, economic, and social areas. The law on amendments
was adopted unanimously by the Duma (which introduced an additional
amendment paving the way to a possible extension of President Putin’s
mandate by two additional terms) on 11 March 2020 and by the Council
of Federation on the same day, also unanimously. On 12 and 13 March
2020 the Law was approved by the legislative councils of the 85
subjects of the Russian Federation and on 14 March 2020, the Law
was sent to the Constitutional Court which issued, on 16 March 2020,
an opinion finding that the amendments were in conformity with the
Constitution.
19. While the revision of the paragraphs concerned of the Constitution
did not require a referendum, President Putin’s draft law submitted
to the Duma in January 2020 provided for a different procedure, completing
the adoption in the Parliament and in regional parliaments by a
consultative “All-Russian vote” unforeseen in the Federal Constitutional
Law on the Referendum in order to gain more legitimacy. It had not been
known before and did not meet requirements for a referendum. It
was initially scheduled for 22 April 2020 but due to the Covid-19
pandemic it was postponed to 26 June – 1 July 2020 and spread over
the week.
20. All issues of the most importance were put in one package
for a simple “yes” or “no” answer for them to be treated together
which was highly problematic. Furthermore Golos, the respected election
watchdog, was very critical about the campaign, and in particular
the lack of safeguards ensuring a level playing field for opponents
to the amendments. The organisation and administration of the vote
itself was also criticised for giving the authorities more control
over elections and not ensuring necessary transparency thus limiting independent
observers` abilities to track voter fraud. The voting lasted a whole
week and from the first day of voting, Russians could cast ballots,
not only in regular polling stations but also in makeshift mobile
locations set up on park benches, car trunks and shopping trolleys,
as evidenced by numerous videos and photos posted on the internet.
The ballots were subsequently moved and kept in polling stations
overnight which opened up a possibility for mass tampering. In its
assessment of the vote, Golos noted “multiple voting, ballot stuffing”
and “violating voter secrecy”. It stated that “a significant portion
of the votes were collected by voting directly at enterprises and
institutions, de facto under the control of
their leadership”.
21. All the aforementioned changes to the Russian State system
have taken place with unprecedented speed without any meaningful
public debate or consultations.
3.2 Poisoning
of Alexei Navalny and his detention upon arrival in Moscow
22. The poisoning of Mr Navalny,
leader of the Anti-Corruption Foundation, on 20 August 2020 raised
alarm and utmost concern inside and outside the Russian Federation.
Mr Navalny fell into a coma on board a domestic Russian flight from
Tomsk, where he was campaigning ahead of the local elections, to
Moscow. After an emergency landing in Omsk he received immediate
treatment for suspected poisoning. Local laboratories did not confirm
poisoning. On 22 August 2020 at the request of his family he was
air-lifted to Berlin where he stayed in the Charite Hospital until
22 September 2020. Toxicological analysis conducted by several specialised
laboratories in Germany, France and Sweden as well as by the Organisation
for the Prohibition of Chemical Weapons (OPCW) revealed that he
was poisoned by a military-grade chemical nerve agent of the Novichok
family, developed in the former Soviet Union and banned by the Chemical
Weapons Convention.
23. The monitoring co-rapporteurs have issued a statement calling
for a full investigation of the case as demanded by the international
community. The Assembly’s Committee on Legal Affairs and Human Rights
has been seized to prepare a report on the subject.
24. On 15 October 2020, the European Union in the absence of the
Russian investigation or co-operation with the OPCW, imposed sanctions
against six Russian individuals and one entity involved in the crime.
No responsibility for the attack has been established by the Russian
authorities and nobody has been brought to justice.
25. An investigation led by the independent investigative platform
Bellingcat, with the involvement of Mr Navalny, revealed that the
failed assassination attempt was co-ordinated by the Russian Federal
Security Service (FSB) and that the latter is running an illegal
chemical weapons programme in violation of the Convention.
26. Mr Navalny’s detention on 17 January 2021 at the airport upon
his arrival in Moscow on charges of a breach of the terms of a suspended
sentence from 2014 raises further alarm. On 18 January 2021, following an
impromptu hearing inside the police station in the absence of his
lawyer, he was ordered to remain in custody for 30 days.
27. In its ruling of 15 November 2018, the European Court of Human
Rights decided that a number of the Russian court proceedings against
Alexei Navalny including the 2014 proceedings which were used as
the pretext for his most recent arrest, breached his rights, were
politically motivated and aimed at suppressing political pluralism.
Therefore, they cannot constitute any legal basis for further detention.
28. Over fifty people peacefully awaiting his arrival at the airport
in Moscow were detained.
29. Immediately after his arrest, Mr Navalny’s team called for
countrywide rallies to be held on 23 January 2021 to protest against
his detention. In the run-up to this date, the Russian authorities
had been taking preventive measures to stop the demonstrations.
Law enforcement officers had been harassing and intimidating opposition
figures, activists and journalists at their homes across the Russian
Federation. Several of Navalny’s closest associates, including his
press secretary Ms Kira Yarmysh, and employees of Anti-Corruption
Foundation, had been arrested in Moscow. During the demonstrations
which took place across Russia in more than 100 cities, over 3 000
people were detained, including Mr Navalny’s wife. In Moscow, at least
40 000 people joined an unauthorised and peaceful rally. As illustrated
by online evidence, disproportionate force and unjustified violence
was used by police forces to disperse the protesters.
30. Despite Mr Navalny’s detention, his team continues to expose
serious corruption among the Russian top authorities as illustrated
by the two-hour video report on the alleged secret palace of the
President posted on YouTube on 20 January and viewed more than 44
million times since then.
3.3 Crackdown
on civil society and political opponents
31. The situation of civil society
operating in the field of democracy, rule of law and human rights,
extra parliamentary opposition and critical journalists has been
systematically deteriorating over the last years. The recent developments
in this area raise utmost concern.
32. Between 10 and 23 November 2020, a series of bills amending
legislation with regard to the activities of the NGOs, media, the
organisation and conduct of public events, protection of State secrets
and State security, as well as corresponding amendments to the administrative
and criminal codes, were introduced to the State Duma. Some of these
draft laws have already been adopted (see below), others are still
undergoing legislative procedure. On 8 December 2020, the Committee
on Legal Affairs and Human Rights requested a Venice Commission
opinion on their compatibility with international human rights standards.
33. The law on “Foreign agents” adopted in 2012 was criticised
very severely in the monitoring report in 2012, as well as by the
international community. Instead of being revoked, it was further
strengthened in 2014 (the Ministry of Justice could now put NGOs
on the list of “foreign agents” without any registration on their
part), in 2017, 2019 (the new provision gave the Ministry of Justice
the power to recognise as “foreign agents” not only organisations,
but also individuals receiving any amount of foreign funding from
abroad; the criteria for defining an individual as a foreign agent
being extremely broad and could potentially be applied to bloggers, journalists,
students receiving foreign grants and other social media users),
and, most recently, in December 2020.
34. On 23 and 25 December 2020, the Duma and the Federation Council
respectively approved amendments to the law on Foreign agents which
expand the scope of individuals and groups that can be designated
“foreign agents”, introduce new restrictions as well as registration
and reporting requirements. They also oblige the media to note the
designation whenever they mention labelled individuals or groups. Furthermore,
individuals labelled foreign agents will be banned from joining
the civil service or holding a municipal government position.
35. The amendments to the Criminal Code introduced on 23 December
2020, provide for a punishment of up to five years in prison for
individuals or organisations labelled as foreign agents who fail
to inform official entities about their status and/or refuse to
report their activities to the Russian authorities.
36. It should be stressed that already by early 2016, the Justice
Ministry had labelled more than 100 organisations “foreign agents”.
As a result, some organisations had to discontinue their work or
shut down. Among them were St-Petersburg’s Anti-Discrimination Center
Memorial and the Committee against Torture. And only last year,
the Ministry of Justice added 12 organisations to its list of “foreign
agents” including three human rights organisations, a group working
on Aids prevention and the Anti-Corruption Foundation (FBK) founded
by Alexei Navalny.
37. Furthermore, in 2015, the law on undesirable organisations
was adopted. It gives prosecutors the power to extrajudicially declare
foreign and international organisations “undesirable” when they
are deemed by the authorities as “representing a threat to the defence
or security of the State, or to public order or public health in
order to protect the foundations of the constitutional order, morality
rights and legitimate interests of the others. “There is no requirement
in the law for the officials to substantiate their decision, nor
any provision for judicial review at the stages of finding and putting
the organisation on the list. Only once officially declared “undesirable”,
can an organisation challenge this decision in court.
38. “Undesirable organisations” are banned or limited from engaging
in any activities inside the Russian Federation. Organisations that
do not disband as well as Russians who maintain ties to them, are
subject to high fines and significant jail time. The label, likewise
in the case of “foreign agents” aims not only to prevent international
NGOs from conducting their activities on the territory of the Russian
Federation, but also to prevent the citizens of the Russian Federation
from participating in the activities of the NGOs themselves, both in
the Russian Federation and abroad.
39. On 25 December 2020, in an incomprehensible move, the Russian
Prosecutor General decided to put the Association of Council of
Europe’s Schools of Political Studies on the list of “undesirable
organisations”. The Council of Europe Schools of Political Studies
were established to “train future generations of political, economic,
social and cultural leaders in countries in transition”. The first
ever school of political studies was created in Moscow in 1992.
40. The monitoring co-rapporteurs have deplored this decision
and called on the Russian authorities to revoke it.
41. Concerning numerous cases of persecution of journalists, governments’
critics or human rights defenders, the case of prominent journalist
Ilya Azar illustrates a common pattern. He was detained in Moscow on
26 May 2020 and sentenced to 15 days of arrest for repeated violations
of the law on rallies by holding a single-person protest against
the arrest on extortion charges of Mr Vladimir Voronstov, a former
police officer and founder of a Telegram channel exposing abuses
in the Russian Federation’s enforcement system. In the following
days, the police also shortly detained several other prominent journalists
who were protesting in Moscow and St-Petersburg over his incarceration.
The Organization for Security and Co-operation in Europe (OSCE)
Representative on freedom of the media had called for their immediate
release. On 28 May, around 20 people were detained, including six
opposition municipal deputies. All of them held single-person protests in
support of Mr Azar. Reportedly, another four individuals were detained
in St-Petersburg. Amid a public outcry in the Russian Federation
and abroad, the Moscow City Court reduced Mr Azar`s imprisonment
term from 15 days to 10 days. Mr Azar was released on 7 June 2020.
42. Numerous other examples of persecution and harassment illustrate
the plight of civil society, and, more generally, of critics of
the government, in the Russian Federation. In July 2020, Mr Navalny’s
“Anti-Corruption Foundation” was about to shut down as a result
of the heavy court fine imposed over one of its investigations. The
conviction came because the organisation refused to delete a video
documentary, released in 2017 exposing many facets of political
corruption in the Russian Federation. Moreover, Mr Navalny has been
placed under arrest multiple times for charges that have been denounced
by the international community as illegitimate. In its judgement
of 9 April 2019, the European Court of Human Rights ruled that these
detentions took place in violation of the European Convention on
Human Rights.
43. In another emblematic prosecution which raised outcry in the
Russian Federation and abroad: on 26 June 2020, an acclaimed Russian
theatre and film director, Mr Kirill Serebrennikov, and his co-defendants were
found guilty and handed suspended prison sentences on embezzlement
charges in a case that critics say was politically motivated and
meant to send a chilling message to potential government critics.
They all had campaigned against constitutional amendments.
44. On 6 July 2020, journalist Ms Svetlana Prokopyeva was convicted
in Pskov for justifying terrorism. She was condemned in connection
with her comment linking the suicide terrorist attack of a teenager
in Arkhangelsk, to a political climate under President Putin. More
than a dozen reporters were detained for picketing in her support.
The OSCE and media rights groups such as Reporters without Borders
criticised the case and called it a violation of freedom of expression.
45. On 7 July 2020, Mr Ivan Safronov, a former journalist was
detained on treason charges liable up to 20 years in prison. The
revised Article 275 under which he was charged, is very broad, vague
and unspecific and it is easy to imprison journalists on the grounds
of revealing State secrets. The law does not specify what information
is classified, leaving it up to various government agencies. According
to lawyers, this law can be used to target anyone with international
contacts, including scholars, journalists, researchers, and human rights
activists. “The case against Mr Ivan Safronov is an absolutely new
level of repression against journalists in this country” wrote Mr Andrei
Soldatov, a prominent investigative journalist in a post on Facebook.
46. Twenty eight other journalists were detained for picketing
in his defence in front of FSB building. All protests were peaceful,
and the demonstrators held single-person pickets, distancing themselves
from each other.
47. There were reports of undue pressure on lawyers of activists.
According to reports by Agora International Human Rights Group,
it has become common practice for judges to remove lawyers from
court hearings without proper legal grounds. The report also documented
a trend of law enforcement authorities using physical force to prevent
lawyers from being present during searches or interrogations.
3.4 Electoral
law and concerns over elections
48. Soon after the All-Russian
vote, and despite heavy criticism of the administration of the voting,
spread over one week, on 21 July 2020, the Duma approved an amendment
to the electoral code that allows voting over as many as three days
during future elections. The decision on whether to hold multiday
elections is to be made by electoral officials.
49. The new voting system was used during the regional and local
elections in September 2020. Voting started on 11 September and
lasted for three days, with 13 September as the main election day.
50. Elections organised in Crimea were not recognised by the European
Union as held in violation of international law.
3.5 Other
concerns
51. The 2016 parliamentary elections
in the Russian Federation were held according to a mixed system:
225 deputies were elected in single-member constituencies (including
4 constituencies in Crimea) and 225 deputies on party lists in a
nationwide constituency also including the territory of Crimea.
In 2019, following the challenge of the credentials of the Russian
delegation on procedural grounds (Article 7) questioning its legitimacy,
the Assembly’s Committee on Rules of Procedure, Immunities and Institutional
Affairs requested the Venice Commission’s opinion in this respect.
While the Venice Commission concluded that the Assembly’s obligation
not to recognise an annexation does not necessarily entail the obligation
to deny credentials on procedural grounds to the whole delegation
of the annexing State, it recalled that other options were possible as
indeed provided by the rules of procedure of the Assembly. In my
opinion the Assembly should agree that no members of the Russian
delegation elected in Crimea can have their credentials ratified.
3.6 Khabarovsk
52. Among other developments in
the Russian Federation over the last year, I should mention demonstrations
and protests in Khabarovsk in support of the then Governor, Sergiey
Furgal, arrested on charges which were widely perceived as politicised.
On 25 July 2020, an unprecedented demonstration with the participation
of 50 000 (about 1/10 of the city population) was held calling for
the Governor’s reinstatement and the trial in Khabarovsk not in
Moscow. Subsequently, a few protests in support of Furgal also took
place in other cities including Novosibirsk, Vladivostok and Omsk.
53. The protests have been continuing. The last demonstration
gathered over 100 people on 9 January 2021. The demands were not
addressed.
3.7 International
questions
54. Unfortunately, no progress
has been made with regard to implementing the demands of the international community
with regard to Eastern Ukraine, Crimea and the occupied Georgian
regions of South Ossetia and Abkhazia.
3.8 Financial
obligations with regard to the Council of Europe budget
55. With regard to the financial
obligations towards the Council of Europe, upon its return to the
Assembly in July 2019, the Russian Federation paid all due contributions
to the ordinary budget and partial agreements for the second part
of 2017, 2018 and 2019.
56. However, the Russian Federation has not reimbursed unpaid
interests over that period amounting to over 13 million euro in
2019. The Russian Federation has blocked this reimbursement following
disputes within the Committee of Ministers on the status of this
reimbursement and its allocation.
4 Conclusions
57. In June 2019, when the Assembly
adopted
Resolution 2287
(2019) on “Strengthening the decision-making process of the
Parliamentary Assembly concerning credentials and voting”, which
paved the way for the Russian delegation’s return to the Assembly,
its intention was clear. The reason why the majority of members
voted in favour of this text and then following the challenge of
the Russian Delegation’s credentials in favour of
Resolution 2292 (2019) was to relaunch a political and meaningful dialogue.
58. The dialogue has been relaunched as well as the co-operation
in the Monitoring Committee, where the Russian representatives take
an active part. However, we have to determine whether this dialogue
is likely to bring about some progress in the state of implementation
of the Russian Federation’s compliance with its obligation and commitments.
59. The brief overview which I have presented in the current report
is not optimistic. However, I think it would not be appropriate
to abandon the path we chose in June 2019 at this stage. I think
that the Monitoring Committee should continue its work with regard
to the Russian Federation. The co-rapporteurs should carry out a
fact-finding visit as soon as possible and prepare a substantial
report as soon as possible. The Monitoring Committee should carefully
follow developments in the Russian Federation, with a view to assessing
the situation and the country’s compliance with democratic standards
and the Russian Federation’s commitments and obligations.
60. I also stress the importance of full co-operation on the part
of the Russian authorities with all relevant Assembly rapporteurs,
who should be able to carry out their fact-finding visits as soon
as the pandemic situation allows. The Russian authorities should
also fully co-operate with the Council of Europe Commissioner for
Human Rights, enabling her visit to Crimea when sanitary conditions,
due to the pandemic, allow.
61. With a view to pursuing a political dialogue I therefore propose
that the Assembly ratifies the credentials of the Russian Federation
and return to the assessment of the progress made when a monitoring
report is submitted later this year.
