The evolution of the relation between Russia and The Council of Europe

1. ‘In 1996 the Council of Europe could still seriously consider a successful end to the democratic transition in Russia. To continue harbouring the same expectation today would be blindness’. Discuss with emphasis on the evolution in relations between Moscow and the Council of Europe.
Katalin Jakucs
Russia and the EU
King’s College London
Spring 2013
The Council of Europe (CoE)1 was founded by the London Treaty in 1949 with the aim of promoting Western nations‟ commitment to democracy, rule of law, and human rights.2 Originally, the organization also had the ideological role of demonstrating the importance of the first generation of rights to the Western world in contrast to the Communist bloc‟s commitment to social and economic rights.3 However, after the collapse of the Soviet Union, the Council of Europe decided to absorb rather than to exclude the post-Soviet countries.4 Therefore, during the last 60 years, the number of its members grew from the original 10 to 47. The CoE now virtually covers the whole European continent and has a population of more than 800 million.5
Russia sent its request for membership in 1992 and eventually joined the Council of Europe in February 1996. At the time of accession, it was obvious that the country was far from meeting the requirements relevant for admission.6 The members of the Council of Europe nevertheless
1 In this essay, the author refers to the Council of Europe as the Council or the CoE which should not be confused with the Council of the European Union or the European Council. 2 Pamela A. Jordan. "Russia's Accession to the Council of Europe and Compliance with European Human Rights Norms". Demokratizatsiya. (2003):281. http://www.gwu.edu/~ieresgwu/assets/docs/demokratizatsiya%20archive/11-2_Jordan.PDF (accessed 05/04/2013). 3 Bill Bowring. "The Russian Federation, Protocol No. 14 (and 14bis), and the Battle for the Soul of the ECHR". Gottingen Journal of International Law 2, no. 2 (2010):592. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2085582 (accessed 05/04/2013). 4 Denis Huber. "A decade which Made History – The Council of Europe 1989-1999". Strasbourg: Council of Europe Press. (1999):167. 5 Bill Bowring. "The Russian Federation, Protocol No. 14 (and 14bis), and the Battle for the Soul of the ECHR" Gottingen Journal of International Law 2, no. 2 (2010):592. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2085582 (accessed 05/04/2013). 6 Bill Bowring. "Russia's accession to the Council of Europe and human rights: compliance or cross-purposes?" European Human Rights Law Review no 6. (1997):632.

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adopted Russia in the hope that its membership would strengthen the country‟s commitment to human rights and encourage its democratic transition.7 More than a decade has past and Russia‟s commitment to genuine democratic values can still be questioned. Its relations with the CoE have been marked by heavy disputes, tension and serious contradictions from the very beginning.8
Significant academic attention has been devoted to the development of Russia‟s relationship with the Council of Europe. Following the country‟s accession, authors‟ (Bowring,9 Janis,10 Jackson,11 Jordan12) interest focused on the motives behind the Council‟s decision to admit Russia notwithstanding the country‟s lack of democratic principles. When assessing the evolution of the relationship, the great majority of academics (Bowring,13 Franics,14 Jagers and Zwaak,15 Massias16) use a rather critical tone and highlight the thorny issues that undermine the cooperation between Russia and the Council. In 2000, Bowring argued that „Russia's membership is unstable and contingent, with the constant possibility of her
http://login.westlaw.co.uk.gate2.library.lse.ac.uk/maf/wluk/app/document?src=toce&docguid=IB6F88BD0E72111DA9D198AF4F85CA028&crumb-action=append&context=4 (accessed 05/04/2013). 7Sinikukka Saari. "European democracy promotion in Russia before and after the „colour‟ revolutions". Democratization, 16 no. 4. (2009):735. http://dx.doi.org/10.1080/13510340903083018 (accessed 05/04/2013). 8 Jean-Pierre Massias. "Russia and the Council of Europe: Ten Years Wasted?" Russie.Nei.Visions no.15. (2007):4. http://www.ifri.org/?page=contribution-detail&id=4742&id_provenance=97 (accessed 05/04/2013). 9 Bill Bowring. "Russia's accession to the Council of Europe and human rights: compliance or cross-purposes?" European Human Rights Law Review no 6. (1997):635. http://login.westlaw.co.uk.gate2.library.lse.ac.uk/maf/wluk/app/document?src=toce&docguid=IB6F88BD0E72111DA9D198AF4F85CA028&crumb-action=append&context=4 (accessed 05/04/2013). 10 Mark Janis. "Russia and the 'Legality' of Strasbourg Law". European Journal of International Law no. 8 (1997): 93-99. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1101628 (accessed 05/04/2013). 11 William D. Jackson. "Russia and the Council of Europe The Perils of Premature Admission". Problems of Post-Communism 51, no. 5 (2004):23–33. http://direct.bl.uk/bld/PlaceOrder.do?UIN=156251703&ETOC=RN&from=searchengine (accessed 05/04/2013). 12 Pamela A. Jordan. "Russia's Accession to the Council of Europe and Compliance with European Human Rights Norms". Demokratizatsiya. (2003):285-288. http://www.gwu.edu/~ieresgwu/assets/docs/demokratizatsiya%20archive/11-2_Jordan.PDF (accessed 05/04/2013). 13 Bill Bowring. "Russia‟s Relations With The Council of Europe Under Increasing Strain" The EU-Russia Centre no 2. (2008). http://www.eu-russiacentre.org/assets/files/15%20Feb%20Bowring%20article%20EU- RC.pdf (accessed 05/04/2013). 14Céline Franics. "„Selective Affinities‟: The Reactions of the Council of Europe and the European Union to the Second Armed Conflict in Chechnya (1999 – 2006)". Europe-Asia Studies 60, no. 2 (2008):317 -338. http://www.tandfonline.com/doi/abs/10.1080/09668130701820192 (accessed 05/04/2013). 15Nicola Jagers and Leo Zwaak. "The Russian Federation And Human Rights. How Should the Council of Europe Deal with the Problems Posed by Its Largest Member State? ". Netherlands Quarterly of Human Rights 26, no.1 (2008):3-7. http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/nethqur41&div=4&id=&page= (accessed 05/04/2013). 16 Jean-Pierre Massias. "Russia and the Council of Europe: Ten Years Wasted?" Russie.Nei.Visions no.15. (2007) http://www.ifri.org/?page=contribution-detail&id=4742&id_provenance=97 (accessed 05/04/2013).

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expulsion or withdrawal‟.17 Ten years after Russia‟s accession, Melzer noted that the country is still far from the main goals of the Council, namely the respect of human rights, rule of law and democracy.18 At the same time, Massias asserted that relations between Russia and the Council „are marked by a profound contradiction‟.19 In a more recent piece, Maalkso strikingly remarks that „Russia‟s ride in the European system of human-rights protection has been quite similar to a ride on a roller-coaster; perhaps the biggest achievement so far has been that the weighty passenger has not fallen out; that the country continues to hold on.‟20
Building upon the existing literature, in this paper it is argued that Russia is still far from being a democracy and harbouring the idea of a successful end to its democratic transition would be unrealistic. This argument is supported by the analysis of the evolution of Russia‟s troublesome relationship with the Council of Europe. Even though, there have been many problematic issues, this essay concentrates on three main points of contention, namely the armed conflict in Chechnya, the (non)-abolition of death penalty and Russia‟s ambiguous relations with the European Court of Human Rights. Approaching towards the end of the essay, the hypothesis is supported by the analysis of the Council‟s latest report on Russia‟s respect of its obligations and commitments. This report leads the reader to the conclusion that the Russian Federation is far from respecting the rule of law, democracy and human rights.
A controversial relationship from the very beginning
Prior to Russia‟s accession to the CoE, several expert reports (that of the Parliamentary Assembly of the Council of Europe (PACE), the United Nations Special Rapporteur and of the Russian Commissioner for Human Rights) concluded that there were still significant shortcomings in Russia as far as realisation of human rights and democratic principles are concerned.21 Notwithstanding these negative opinions and the war in Chechnya, the 17Bill Bowring. "Russia's accession to the Council of Europe and human rights: four years on". European Human Rights Law Review no 4. (2000):364. http://login.westlaw.co.uk.gate2.library.lse.ac.uk/maf/wluk/app/document?src=toce&docguid=IB6C98C90E72111DA9D198AF4F85CA028&crumb-action=append&context=16 (accessed 05/04/2013). 18 Olaf Melzer. "Poor Record. Th e Russian Chairmanship of the Council of Europe 2006". Russian Analytical Digest no. 12. (2006):3. http://www.css.ethz.ch/publications/pdfs/RAD-12.pdf (accessed 05/04/2013).
19Jean-Pierre Massias. "Russia and the Council of Europe: Ten Years Wasted?" Russie.Nei.Visions no.15. (2007):4. http://www.ifri.org/?page=contribution-detail&id=4742&id_provenance=97 (accessed 05/04/2013).
20 Lauri Mälksoo. "Concluding Observations. Russia and European Human-Rights Law: Margins of the Margin of Appreciation". Review of Central and East European Law 37 no. 2-3 (2012):362. http://www.ingentaconnect.com/content/mnp/rela/2012/00000037/F0020002/art00007 (accessed 05/04/2013).
21 Bill Bowring. "Russia's accession to the Council of Europe and human rights: compliance or cross-purposes?" European Human Rights Law Review no 6. (1997):631.

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Parliamentary Assembly, after a fierce debate, voted by two thirds majority in favour of Russia‟s admission. This decision was motivated by the idea that the membership would help guiding Russia on its way to democracy.22
By adhering to the Council, Russia accepted to comply with a long list of obligations set out in the PACE‟s Opinion.23 Accordingly, the Russian Foreign Minister signed, on 28 February 1996, the Council‟s Charter and the European Convention on Human Rights (ECHR) along with some other treaties.24 However, the debate which had been held in the Duma earlier in February indicated that the members of the Russian lower house of Parliament attached only recommendatory character to these obligations.25 Therefore, already at the very beginning there was a conceptual misunderstanding between Russia and the Council.
When ratifying the ECHR in May 1998 the country honoured one of its key obligations. It is important to note that Russia has actually satisfied a great number of its commitments.26 However, there are many issues where Russia failed or objected to comply rendering its relations with the Council extremely tense and problematic, and calling into question the country‟s leaders‟ commitment to the Council‟s values and principles.
The non-abolition of death penalty
The (non-)abolition of death penalty has been, from the very beginning, a continuous point of contention between Russia and the CoE. When joining in 1996, Russia gave her consent to sign within one, and ratify within three years the Protocol 6 on the abolition of capital
http://login.westlaw.co.uk.gate2.library.lse.ac.uk/maf/wluk/app/document?src=toce&docguid=IB6F88BD0E72111DA9D198AF4F85CA028&crumb-action=append&context=4 (accessed 05/04/2013). 22 Jean-Pierre Massias. "Russia and the Council of Europe: Ten Years Wasted?" Russie.Nei.Visions no.15. (2007):3. http://www.ifri.org/?page=contribution-detail&id=4742&id_provenance=97 (accessed 05/04/2013).
23Bill Bowring. "Russia‟s Relations With The Council of Europe Under Increasing Strain" The EU-Russia Centre no 2. (2008):2. http://www.eu-russiacentre.org/assets/files/15%20Feb%20Bowring%20article%20EU- RC.pdf (accessed 05/04/2013).
24 He signed the European Convention Against Torture, the European Charter on Local Self-Government, and the Framework Convention on Protection of National Minorities. In: Bill Bowring. "Russia's accession to the Council of Europe and human rights: compliance or cross-purposes?" European Human Rights Law Review no 6. (1997):637. http://login.westlaw.co.uk.gate2.library.lse.ac.uk/maf/wluk/app/document?src=toce&docguid=IB6F88BD0E72111DA9D198AF4F85CA028&crumb-action=append&context=4 (accessed 05/04/2013).
25 Bill Bowring. "Russia's accession to the Council of Europe and human rights: compliance or cross-purposes?" European Human Rights Law Review no 6. (1997):634. http://login.westlaw.co.uk.gate2.library.lse.ac.uk/maf/wluk/app/document?src=toce&docguid=IB6F88BD0E72111DA9D198AF4F85CA028&crumb-action=append&context=4 (accessed 05/04/2013).
26 Jean-Pierre Massias. "Russia and the Council of Europe: Ten Years Wasted?" Russie.Nei.Visions no.15. (2007):8. http://www.ifri.org/?page=contribution-detail&id=4742&id_provenance=97 (accessed 05/04/2013).

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punishment and to put into place an immediate moratorium.27 However, the State Duma has refused to ratify this Protocol several times, and Russia has always found a different way to resolve this question.28 Consequently, death penalty is still not de jure abolished in the country.
In the year of 1996, more than 50 people were executed which demonstrates Russia‟s serious breach of its obligation to immediately ban death penalty.29 As a reaction, in June 1996, the CoE‟s Secretary General, Peter Leuprecht, condemned the country for failing to comply with its obligation align with the PACE that threatened with expulsion if Russia failed to institute a moratorium on capital punishment.30
In May 1996 President Yeltsin ordered a „step by step cessation of application of the death penalty‟ and later in August announced an unofficial moratorium on executions.31 It was based on the referral of all death sentences to the President's Commission on Clemency which reversed the capital punishment to life sentence.32 A draft federal law was also prepared „On the moratorium on the carrying out of death sentences‟.33 However, the Duma successively refused to ratify it in 1997, 1998 and in 1999.
The issue was indirectly resolved in February 1999 by the Federal Constitutional Court‟s ruling which ordered that capital punishment can only be applied in Russia if the accused had the right to trial by jury in every region of the country.34 At that time, jury was available only in a very small number of regions. However, in 2001 the Criminal Procedural Code made jury
27 Parliamentary Assembly of the Council of Europe. "Opinion No. 193 (1996) on Russia's request for membership of the Council of Europe". 25 January 1996. http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta96/EOPI193.htm (accessed 05/04/2013).
28 Boris Gryzlov, speaker of the State Duma in 1998, explained: ‟Indeed, we have not ratified the 6th Protocol. The question will be resolved differently but it will be resolved.‟ In: Lauri Mälksoo. "Concluding Observations. Russia and European Human-Rights Law: Margins of the Margin of Appreciation". Review of Central and East European Law 37 no. 2-3 (2012):363. http://www.ingentaconnect.com/content/mnp/rela/2012/00000037/F0020002/art00007 (accessed 05/04/2013).
29 Bill Bowring. "Russia's accession to the Council of Europe and human rights: compliance or cross-purposes?" European Human Rights Law Review no 6. (1997):643.
http://login.westlaw.co.uk.gate2.library.lse.ac.uk/maf/wluk/app/document?src=toce&docguid=IB6F88BD0E72111DA9D198AF4F85CA028&crumb-action=append&context=4 (accessed 05/04/2013).
30 Ibid. p. 643.
31 Bill Bowring. "Russia's accession to the Council of Europe and human rights: four years on". European Human Rights Law Review no 4. (2000):371 http://login.westlaw.co.uk.gate2.library.lse.ac.uk/maf/wluk/app/document?src=toce&docguid=IB6C98C90E72111DA9D198AF4F85CA028&crumb-action=append&context=16 (accessed 05/04/2013).
32 Ibid p. 369.
33 Ibid p. 371.
34 Ibid p. 372.

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trial available in all parts of Russia except from Chechnya where it was supposed to be introduced in 2007.35 This date was later postponed to January 2010 by a decision of the State Duma. Therefore, during all that time there was a possibility that capital punishment would become available again after 2010.
It is important to note that there are two main internal factors that hamper the abolition of death penalty. First, the Russian prison system lacks sufficient funding which results in overcrowded prisons with inhuman conditions.36 Second, the public opinion is still in favour of capital punishment.37 A quite recent poll detects that the big majority of the population still supports capital punishment for rapists of minors.38 That is why president Putin, even though himself being against punishment by death, did not intend to solve the problem. As he asserted during a meeting with journalists in February 2006, he had to ‟take the public and the deputies‟ opinion into consideration.‟39
It is true that there has been no execution in Russia since 199940 and that at the end of 2009, the Constitutional Court de facto abolished capital punishment.41 As noted above, the introduction of jury trial in Chechnya in 2010 would have reintroduced death penalty in Russia. However, the Constitutional Court introduced a moratorium on death penalty with its
35 Bill Bowring. "Russia and Human Rights: incompatible opposites?" Gottingen Journal of International Law 1, no. 2 (2009): 271. http://srji.org/files/Bill%20_Bowring_2008.pdf (accessed 05/04/2013). 36 Pamela A. Jordan. "Russia's Accession to the Council of Europe and Compliance with European Human Rights Norms". Demokratizatsiya. (2003):288. http://www.gwu.edu/~ieresgwu/assets/docs/demokratizatsiya%20archive/11-2_Jordan.PDF (accessed 05/04/2013). 37Ibid p. 288.
38 Viktor Khamraev, Maksim Ivanov, “Dumskoe bol‟shinstvo skloniaetsia k menshemu zlu”, Kommersant
8 December 2009, reproduced at http://www.kommersant.ru/doc/1288374 In: Lauri Mälksoo. "Concluding Observations. Russia and European Human-Rights Law: Margins of the Margin of Appreciation". Review of Central and East European Law 37 no. 2-3 (2012):363. http://www.ingentaconnect.com/content/mnp/rela/2012/00000037/F0020002/art00007 (accessed 05/04/2013).
39 Meeting with Spanish journalists, official site of the Russian President www.kremlin.ru/text/appears/2006/02/101129.shtml In: Jean-Pierre Massias. "Russia and the Council of Europe: Ten Years Wasted?" Russie.Nei.Visions no.15. (2007):12. http://www.ifri.org/?page=contribution- detail&id=4742&id_provenance=97 (accessed 05/04/2013).
40 Bill Bowring. "Russia‟s Relations With The Council of Europe Under Increasing Strain" The EU-Russia Centre no 2. (2008):3. http://www.eu-russiacentre.org/assets/files/15%20Feb%20Bowring%20article%20EU- RC.pdf (accessed 05/04/2013).
41Lauri Mälksoo. "Concluding Observations. Russia and European Human-Rights Law: Margins of the Margin of Appreciation". Review of Central and East European Law 37 no. 2-3 (2012):363. http://www.ingentaconnect.com/content/mnp/rela/2012/00000037/F0020002/art00007 (accessed 05/04/2013).

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decision of 19 November 2009.42 A de jure abolition is though still blocked by Russian legislators.
This controversy over Russia‟s unwillingness to ratify Protocol 6 and the lack of a legal basis for the moratorium sealed the relation between the Council and Russia. The CoE called on Russia to honour its obligations several times43 and threatened with exclusion of its delegates until the moratorium was imposed. In 2002, the PACE expressed that it was „shocked‟ to find that the Duma had asked Putin to reinstitute death penalty in February 2002.44 In 2006, the CoE‟s Human Rights Commissioner deplored that Russia was the only state in Europe where capital punishment was still not abolished.45 In its most recent report, the PACE once again expressed its dissatisfaction with the „lack of progress towards compliance with this important commitment‟.46 The problem has not been resolved yet, even today, which clearly demonstrates Russia‟s lack of respect for one of the most important rights of the Convention, the right to life (Article 2).
Russia‟s ambiguous relations with the European Court of Human Rights (ECtHR)
The European Court of Human Rights is the judicial arm of the Council of Europe and is the heart of Europe‟s human rights protection mechanism. When Russia ratified the Convention in March 1998, it simultaneously recognised the Court‟s jurisdiction and its citizens‟ right to turn to the Court in case their fundamental human rights were violated. Even though Russians tried to live with the newly provided opportunity, not one case was declared admissible during the first three years.47 Later on, when lawyers became familiar with the methods of
42 Lauri Mälksoo. "Concluding Observations. Russia and European Human-Rights Law: Margins of the Margin of Appreciation". Review of Central and East European Law 37 no. 2-3 (2012):363. http://www.ingentaconnect.com/content/mnp/rela/2012/00000037/F0020002/art00007 (accessed 05/04/2013).
43 in 1996, 1997, 2002, 2006 and in 2012
44 Parliamentary Assembly of the Council of Europe. Resolution 1277 (2002). "Honouring of Obligations and Commitments by the Russian Federation". 23 April 2002. http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta02/ERES1277.htm (accessed 05/04/2013).
45 Bill Bowring. "Russia‟s Relations With The Council of Europe Under Increasing Strain" The EU-Russia Centre no 2. (2008):3. http://www.eu-russiacentre.org/assets/files/15%20Feb%20Bowring%20article%20EU- RC.pdf (accessed 05/04/2013).
46 Parliamentary Assembly of the Council of Europe. Monitoring Committee on the Honouring of Obligations and Commitments. "Honouring of obligations and commitments by the Russian Federation." 5 September 2012. http://www.andigross.ch/html/CoE_ReportRussianFed.pdf (accessed 05/04/2013).
47 Julia Lapitskaya. "ECHR, Russia, And Chechnya: Two Is Not Company And Three is Definitely a Crowd". New York University Journal of International Law & Politics 43, no. 2 (2011): 486. http://connection.ebscohost.com/c/articles/61756970/echr-russia-chechnya-two-not-company-three-definitely- crowd (accessed 04/04/2013).

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filing a case properly, the Court started to admit complaints against Russia.48 From 2002 on,49 the number of cases has not stopped increasing, making Russia responsible for the greatest number of petitions pending before the Court. In the overwhelming majority of the cases, the ECtHR condemns Russia for violation of protection of life, prohibition against torture and inhuman treatment, right to a fair trial, protection of property, right to liberty and security and the right to an effective remedy.50As Russia started to lose a number of high profile cases51 before the Court, tension started to increase between Strasbourg and Moscow. The Court‟s judgements not only escalate the conflict but also undermine Putin‟s claim that „his regime brought law, order, and prosperity to Russia‟.52
Russia reacted promptly to these rulings and its political elite started to criticise the „biased‟ Court for its „politicised‟ decisions.53 The Committee on Legal Affairs and Human Rights of PACE described, in a nicely formulated diplomatic manner, the freezing of relations between the Council and Russia in its report of September 2006: „after the prompt reactions to the first European Court's judgments, the execution process has slowed down in the adoption of further legislative and other reforms to solve important structural problems […]‟54. Russia reacted by refusing to ratify Protocol 14 which sought to reform the ECtHR system with the aim of alleviating the work of the overloaded Court.55 As Putin explained, the Duma was
48 Julia Lapitskaya. "ECHR, Russia, And Chechnya: Two Is Not Company And Three is Definitely a Crowd". New York University Journal of International Law & Politics 43, no. 2 (2011): 486. http://connection.ebscohost.com/c/articles/61756970/echr-russia-chechnya-two-not-company-three-definitely- crowd (accessed 04/04/2013). 49 The Court issued its first decision against Russia on 7 May 2002 in the Burdov v. Russia case.
50 European Court of Human Rights. "Violation by Article and by Country 1959-2009". 31 December 2009. http://www.echr.coe.int/NR/rdonlyres/E26094FC-46E7-41F4-91D2- 32B1EC143721/0/Tableau_de_violations_19592009_ENG.pdf (accessed 04/04/2013).
51 Such as Gusinskiy v Russia, Ilaşcu and Others v Moldova and Russia and cases related to human rights violation in Chechnya.
52 Alexei Trochev. "All Appeals Lead to Strasbourg? Unpacking the Impact of the European Court of Human Rights on Russia", University of Wisconsin Law School, Legal Studies Research Paper Series (Paper No. 1082, 2009):146. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1421342# (accessed 04/04/2013).
53 Ibid p.146.
54 Parliamentary Assembly of the Council of Europe. "Implementation of judgments of the European Court of Human Rights." Doc. 11020. 18 September 2006. http://assembly.coe.int/ASP/Doc/XrefViewHTML.asp?FileID=11344&Language=EN (accessed 05/04/2013).
55At the time, the ECHR system was in deep crisis, for which Russia was partly responsible. The Protocol would have been a solution to alleviate the work of the overloaded Court. As the Protocol states: [its] aim is to guarantee the long-term efficiency of the Court by optimising the filtering and processing of applications entered into force on 1 June 2010. This text provides in particular for new judicial formations to deal with the simplest cases, for a new admissibility criterion (that of “significant disadvantage”) and for judges‟ terms of office to be extended to nine years without the possibility of re-election.

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dissatisfied with the „purely political decision[s]‟56 against the country and the refusal of ratification was based on this dissatisfaction. „Essential and long-overdue changes [hence had to be] put on hold‟ as expressed the Secretary General of the Council.57
After having blocked for four years, the State Duma finally ratified the Protocol on 15 January 2010. It can however be called into question whether the ratification was an expression of Moscow‟s commitment to the CoE or it was driven by political motives. As Lapitskaya argues, Russia won significant concessions58 during the negotiations over Protocol 14 and finally agreed to sign „in an attempt to avoid more serious human rights obligations‟.59
Even though the ratification of Protocol 14 eased Russia‟s relations with the Council for a few months, it froze once again in 2011 when the Court overruled the Russian Constitutional Court‟s decision in the Markin case. Not surprisingly, the decision provoked fury and criticism by Russian jurists and politicians.60 Valerii Zorkin, chairman of Russia‟s Constitutional Court asserted that the ruling lacked respect for Russian legislators and was a ‟fundamental challenge to Russia‟s national sovereignty‟.61 In a similar vein, then-president Dmitrii Medvedev declared in a statement that „we will never surrender that part of our sovereignty, which would allow any international court or any foreign court to render a decision, changing our national legislation.‟62 The Marking case is the most recent example demonstrating the difficulty of cooperation between the Strasbourg Court and Moscow.
It is important to note that Protocol 14 is just one example of how the Russian government tries to undermine the ECtHR‟s work. Even though Russia exemplarily pays its damage payments, it fails to implement substantive measures that would prevent the same human
56 Bill Bowring. "Russia and Human Rights: incompatible opposites?" Gottingen Journal of International Law 1, no. 2 (2009): 275. http://srji.org/files/Bill%20_Bowring_2008.pdf (accessed 05/04/2013).
57 Ibid p. 275.
58 For example, it was agreed that a Russian judge would participate in all decisions concerning Russia and the ECtHR would not be investigating complaints that have not been formally accepted and it would not grant new powers of enforcement of judgments. In: Julia Lapitskaya. "ECHR, Russia, And Chechnya: Two Is Not Company And Three is Definitely a Crowd". New York University Journal of International Law & Politics 43, no. 2 (2011): 502. http://connection.ebscohost.com/c/articles/61756970/echr-russia-chechnya-two-not-company- three-definitely-crowd (accessed 04/04/2013).
59Julia Lapitskaya. "ECHR, Russia, And Chechnya: Two Is Not Company And Three is Definitely a Crowd". New York University Journal of International Law & Politics 43, no. 2 (2011): 502. http://connection.ebscohost.com/c/articles/61756970/echr-russia-chechnya-two-not-company-three-definitely- crowd (accessed 04/04/2013).
60 Pomeranz, William E. "Uneasy Partners: Russia and the European Court of Human Rights." Human Rights Brief 19, no. 3, (2012):17. http://www.wcl.american.edu/hrbrief/19/3pomeranz.pdf (accessed 04/04/2013).
61 Ibid p. 19.
62 Ibid p. 19.

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rights violations in the future and the reoccurrence of „repetitive‟ cases before the Court.63 Moreover, the government uses various techniques to impede victims‟ access to the Strasbourg Court. Intimidation of applicants and their attorneys, hampering their contact, failing to inspect their disappearances or murders is one example.64 Another example is Russia‟s constant failure to provide access to domestic investigative files demanded by the applicants or by the Court.65 These techniques were highlighted in the PACE Resolution of 2 October 2007 which called upon the competent authorities to „refrain from putting pressure on applicants, potential applicants, their lawyers or family members, aimed at obliging them to refrain from submitting applications to the Court or withdrawing those applications which have already been submitted […]‟.66
It is therefore obvious that Russia is not committed to fulfil its obligations deriving from the Convention. Moscow‟s constant intention to undermine the Court‟s work also demonstrates its lack of respect for the rule of law. The war in Chechnya While the first war in Chechnya „only‟ delayed Russia‟s accession to the Council, the second one had more serious consequences. For almost ten years, North Caucasus was being transformed to a place where gross human rights violations were happening on a daily basis due to the armed conflict.67 During the war, Russia had been allegedly violating numerous articles of the ECHR such as the right to life (Article 2), the protection against torture and inhuman treatment (Article 3), right to liberty and security of person (article 5), lack of an effective remedy (Article 13) and discrimination based on race, colour, language, religion,
63 Julia Lapitskaya. "ECHR, Russia, And Chechnya: Two Is Not Company And Three is Definitely a Crowd". New York University Journal of International Law & Politics 43, no. 2 (2011):498. http://connection.ebscohost.com/c/articles/61756970/echr-russia-chechnya-two-not-company-three-definitely- crowd (accessed 04/04/2013).
64 Ibid p. 507.
65Ibid p. 481.
66 Parliamentary Assembly of the Council of Europe. "Council of Europe member states‟ duty to co-operate with the European Court of Human Rights." Resolution 1571 (2007). 2 October 2007. http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta07/ERES1571.htm (accessed 05/04/2013).
67 Nicola Jagers and Leo Zwaak. "The Russian Federation And Human Rights. How Should the Council of Europe Deal with the Problems Posed by Its Largest Member State? ". Netherlands Quarterly of Human Rights 26, no.1 (2008):3. http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/nethqur41&div=4&id=&page= (accessed 05/04/2013).

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and national origin (Article 14).68 Therefore, not surprisingly, the Chechen war was a controversial issue in Russia‟s relations with the Council of Europe. The newly appointed prime minister, Vladimir Putin initiated the second war in September 1999. The conflict escalated with a great speed causing destruction and bloodshed and resulting in serious human rights violations. The PACE reacted by demanding Russia to immediately cease fire and to start a peaceful dialogue.69 As Russia failed to respond to the political request, the Assembly recommended to suspend its membership and voted for the withdrawal of Russia‟s voting right in April 2000.70 The decision triggered a fierce reaction from the other side with the Russian Foreign Ministry expressing its deep regret, and with Gadzhi Makhachev, member of the Russian delegation from Dagestan, telling the press that „PACE was not a parliamentary, but a bandit assembly‟.71 Members of the State Duma also reacted fiercely and threatened with the withdrawal of Russia‟s heavy contribution to the CoE‟s budget.72 Interestingly, during its meeting in May, the Committee of Ministers did not opt for Russia‟s exile but welcomed the steps Moscow was planning to take in order to resolve the conflict.73 In January 2001, after Putin‟s announcement of reducing forces in Chechnya and after an agreement to set up a PACE task force entrusted with the restoration of peace in the North Caucasus, Russia‟s voting rights were restored in the Assembly.74 In March, a Joint Working
68 Julia Lapitskaya. "ECHR, Russia, And Chechnya: Two Is Not Company And Three is Definitely a Crowd". New York University Journal of International Law & Politics 43, no. 2 (2011): 488. http://connection.ebscohost.com/c/articles/61756970/echr-russia-chechnya-two-not-company-three-definitely- crowd (accessed 04/04/2013).
69 Bill Bowring. "Russia's accession to the Council of Europe and human rights: four years on". European Human Rights Law Review no 4. (2000):376. http://login.westlaw.co.uk.gate2.library.lse.ac.uk/maf/wluk/app/document?src=toce&docguid=IB6C98C90E72111DA9D198AF4F85CA028&crumb-action=append&context=16 (accessed 05/04/2013).
70 Ibid p.377.
71 Kommersant Daily, April 8, 2000, interview with Leonid Berres. In: Bill Bowring. "Russia's accession to the Council of Europe and human rights: four years on". European Human Rights Law Review no 4. (2000):379. http://login.westlaw.co.uk.gate2.library.lse.ac.uk/maf/wluk/app/document?src=toce&docguid=IB6C98C90E72111DA9D198AF4F85CA028&crumb-action=append&context=16 (accessed 05/04/2013).
72 William D. Jackson. "Russia and the Council of Europe The Perils of Premature Admission". Problems of Post-Communism 51, no. 5 (2004):32. http://direct.bl.uk/bld/PlaceOrder.do?UIN=156251703&ETOC=RN&from=searchengine (accessed 05/04/2013).
73 Dmitry Gornostayev. "Moscow Remains in Council of Europe." Nezvisimaia gazeta. May 12, 2002, translated in Current Digest of the Post-Soviet Press 52, no. 19 (2000): 21. http://www.lib.umich.edu/database/current- digest-post-soviet-press (accessed 04/04/2013).
74 William D. Jackson. "Russia and the Council of Europe The Perils of Premature Admission". Problems of Post-Communism 51, no. 5 (2004):29. http://direct.bl.uk/bld/PlaceOrder.do?UIN=156251703&ETOC=RN&from=searchengine (accessed 05/04/2013).

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Group comprising of members from the PACE and from the State Duma started to investigate human rights violations.75 However, the establishment of this group had little impact on impeding the Russian military from combating further attacks and from violating civilians‟ human rights.76 Russell-Johnston, then-President of the PACE expressed his concern in July 2001, over the „mounting evidence of a rapidly deteriorating human rights situation in Chechnya‟.77 However, rhetoric from the CoE fell on deaf ears especially after the terrorist attacks of 11 September 2001 in the United States. After 9/11, Putin declared the war in Chechnya as part of the fight against terrorism and refused strong criticism from the West about the way he intended to handle the conflict.78 In 2003, the Court lost its patience and started to admit cases filed by Chechen civilians against Russia notwithstanding the fact that they had not previously exhausted all domestic remedies.79 The Court‟s decision was backed by the PACE that concluded in its resolution of April 2003 that „the main reason that Russian forces and Chechen fighters go on committing abuses is that they nearly always remain unpunished.‟80 Actually, the state Duma issued a Decree in June the same year which granted amnesty for criminal acts committed by all those who participated in the armed conflicts taken place between December 1993 and June 2003.81 Therefore, victims whose rights had been violated had no chance to get any justice from the Russian state and the tendency to turn to the Strasbourg Court started to increase dramatically. 75 Pamela A. Jordan.. "Russia's Accession to the Council of Europe and Compliance with European Human Rights Norms". Demokratizatsiya. (2003):291. http://www.gwu.edu/~ieresgwu/assets/docs/demokratizatsiya%20archive/11-2_Jordan.PDF (accessed 05/04/2013).
76 Ibid p.291.
77 "Statement by Assembly President in Chechnya." 12 July 2001. http://groups.yahoo.com/group/RCWMC/message/371 (accessed 04/04/2013).
78 Pamela A. Jordan. "Russia's Accession to the Council of Europe and Compliance with European Human Rights Norms". Demokratizatsiya. (2003):291. http://www.gwu.edu/~ieresgwu/assets/docs/demokratizatsiya%20archive/11-2_Jordan.PDF (accessed 05/04/2013).
79 William D. Jackson. "Russia and the Council of Europe The Perils of Premature Admission". Problems of Post-Communism 51, no. 5 (2004):30. http://direct.bl.uk/bld/PlaceOrder.do?UIN=156251703&ETOC=RN&from=searchengine (accessed 05/04/2013).
80 Parliamentary Assembly of the Council of Europe. Resolution 1323 (2003). "The human rights situation in the Chechen Republic". 2 April 2003. http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta03/ERES1323.htm (accessed 05/04/2013)
81 Julia Lapitskaya. "ECHR, Russia, And Chechnya: Two Is Not Company And Three is Definitely a Crowd". New York University Journal of International Law & Politics 43, no. 2 (2011): 520. http://connection.ebscohost.com/c/articles/61756970/echr-russia-chechnya-two-not-company-three-definitely- crowd (accessed 04/04/2013).

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Many of the cases concerned excessive use of force and torture, ill treatment or even deaths in custody, arbitrary or secret detentions, and threats to human rights activists.82 In the overwhelming majority of the cases the Court found violation of at least one article of the Convention.83 The ECtHR therefore was routinely ruling against Russia but the competent authorities did little to comply with the judgements of the Court except from paying monetary compensations. On the contrary, Russia tried to curtail access to the court by intimidating victims and their attorneys and by impeding access to investigation documents. As Lapitskaya argues the Chechen cases were a very good illustration of how the Russian government sought to undermine the work of the Strasbourg Court.84 The counter-terrorism operation in Chechnya officially ended on 16 April 2009, but the situation has continued to deteriorate of which the terrorist attacks in Dagestan in March 2010 and at the Moscow airport in January 2011 are the latest examples.85 Over the past fifteen years of the conflict, the Parliamentary Assembly has been very critical of Russia‟s conduct but apart from public condemnation in reports and resolutions, the Council of Europe has done little to punish Moscow for its gross human rights violations. At the same time, Russia‟s unwillingness to put an end to the killings and to comply with the PACE‟s recommendations along with its continuous efforts to undermine the work of the Court clearly demonstrate the country‟s lack of respect for the rule of law, democracy and human rights.
Successful end to democratisation?
The three main points analysed above – abolition of death penalty, the war in Chechnya and Russia‟s relations with the ECtHR – reveal Russia‟s troublesome relations with the Council of Europe and highlight that the successful end of the democratic transition is still yet to come.
It is important to note, that there are many other issues, of which the examination is beyond the scope of this essay, that have created tension between the Council and Russia. The war in
82 Julia Lapitskaya. "ECHR, Russia, And Chechnya: Two Is Not Company And Three is Definitely a Crowd". New York University Journal of International Law & Politics 43, no. 2 (2011): 521. http://connection.ebscohost.com/c/articles/61756970/echr-russia-chechnya-two-not-company-three-definitely- crowd (accessed 04/04/2013).
83 Ibid p. 522.
84 Ibid p. 519.
85 Petr Preclik. "Culture Re-introduced: Contestation of Human Rights in Contemporary Russia". Review of Central and East European Law 37 no. 2-3 (2012):199. http://www.ingentaconnect.com/content/mnp/rela/2012/00000037/f0020002/art00003 (accessed 05/04/2013).

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Georgia, the lack of freedom of expression, biased elections, ill-treatment or torture in penitentiary institutions, harassment of journalists and human rights activists, and more recently the restrictive measures against NGOs and restriction of LGBT rights are all areas where Strasbourg repeatedly condemned Russia‟s conduct. These are all issues that cast doubts about the democratic nature of the political system of the Russian Federation.
However, the thing that illustrates best Russia‟s massive distance from a successful end to democratisation is the PACE‟s most recent monitoring report published in October 2012. The report, among others, examines the last four elections held in the Russian Federation. It concludes that the Parliamentary elections of 2 December 2007 were „to a great extent free in terms of a variety of voting options, but they were definitely not fair‟, and also that the presidential election of 2008 „repeated most of the flaws revealed during the Duma elections of December 2007‟. As to the latest Parliamentary elections of 4 December 2011, the report asserts that „all the stages of the electoral process were marked by a range of violations of the electoral code‟. Concerning the presidential elections of 2012, the report states that „voter‟s choice was limited, the electoral competition lacked fairness and an impartial referee was missing‟.
The report also expresses concern about the four federal laws86 adopted recently by the Duma that are „worrying‟ and „potentially regressive in terms of democratic development‟. Furthermore, it talks about a „restrictive political climate‟ and calls on the newly elected President Putin „to democratise the system instead of increasing its authoritarianism‟. The authors of the report also express concern about „the compliance of the law with democratic standards‟ and about the high number of „reported cases of abuses by law enforcement bodies‟. They characterise media freedom, freedom of expression and that of assembly as „highly problematic‟ or as a „matter of grave concern‟. They welcome some positive steps in opening up the political landscape but assert that „the declared openness of the authorities for change is too often contradicted by acts.‟ The conclusion of the authors is that the „overall state of democracy in Russia raises concern, progress in the fulfilment of the country‟s obligations and commitments is slow‟, and that „Russia should increase its efforts and advance more quickly on the way to democratisation‟.
86 Namely the law on the criminalisation of defamation, on the Internet, amendments to the law on assemblies (the so-called “protest law”) and on NGOs (the so-called “law on foreign agents”).

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Not surprisingly, the report entailed heavy criticism from Russia, creating a new point of contention in the never ending battle between Strasbourg and Moscow. Sixteen years after Russia‟s accession to the CoE such a report is rather worrisome and questions the Russian political elite‟s intention to truly democratize the country.
Conclusion
In 1996, the Council of Europe admitted Russia in the hope of facilitating the country on its way to democratic consolidation. This essay, however, demonstrated that harbouring this idea today would be blindness. The three points of contention analysed above reveal Russia‟s disrespect for the values and norms of Europe‟s human rights protection system. The non- abolition of death penalty, the efforts to constantly undermine the ECtHR‟s work and the gross human rights‟ violations committed during the Chechen war throughout the last fifteen years all contradict Putin‟s claim that „his regime brought law, order, and prosperity to Russia‟. In addition, the Council‟s latest report further highlights the flaws of the supposedly democratic regime. Russia‟s progress toward democracy is therefore rather going off the rails.
Hence, it is not surprising that many authors argue (Hassner,87 Saari,88 Rutland89, McFaul and Stoner-Weiss90) that throughout the years of Putin‟s leadership Russia has moved away from democratic norms, and developed semi-authoritarian practices. As Ryabov puts it, the current system is based on a „social contract [...] whereby the people enjoy greater prosperity in exchange for a lack of political freedom‟.91 It is obvious that the current Russian leadership has no intention to make steps on the way for a more democratic political system.
87 Pierre Hassner. "Russia’s Transition to Autocracy". Journal of Democracy 19, no. 2 (2008):7. http://www.journalofdemocracy.org/article/russias-transition-autocracy (accessed 05/04/2013).
88 Sinikukka Saari. "European democracy promotion in Russia before and after the „colour‟ revolutions". Democratization, 16 no. 4 (2009):739. http://dx.doi.org/10.1080/13510340903083018 (accessed 05/04/2013).
89Peter Rutland. "Democracy in Russia: A Tocquevillian Perspective". Forthcoming in Aurelian Craiutu & Sheldon Gellar (eds.), Conversations with Tocqueville. The Global Democratic Revolution in the 21st Century, (Rowman & Littlefield, 2008):10. http://prutland.web.wesleyan.edu/Documents/Democracy%20in%20Russia.pdf (accessed 05/04/2013).
90 Michael McFaul and Kathryn Stoner-Weiss. "The Myth of the Authoritarian Model How Putin‟s Crackdown Holds Russia Back". Foreign Affairs 87 no. 1 (2008):68. http://iis- db.stanford.edu/pubs/22072/Myth_of_the_Authoritarian_Model.pdf (accessed 05/04/2013).
91 Andrei Ryabov. "Obstacles to Democratic Transition in Contemporary Russia". Chatham House, 21 November 2008. p.5. http://www.chathamhouse.org/sites/default/files/public/Research/Russia%20and%20Eurasia/211108ryabov_summary.pdf (accessed 04/04/2013).

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What is quite striking is that the Russian Federation, which is allegedly a gross human rights violator and lacks respect for democratic principles, is still a member of the organisation that works for ensuring respect for fundamental values such as human rights, democracy and the rule of law. Since Russia‟s accession, the Council responded with nothing but fierce rhetoric and public condemnation to the country‟s disrespect of the CoE‟s principles. Probably, the idea that lies behind Council‟s acts is that Russia is still better „in‟ than „out‟ especially as with its expulsion, Russian citizens would lose their possibility to turn to the ECtHR to get justice.
Nevertheless, it is time for the Council to realise that the argument of the up-and-coming democratization of the Russian Federation is no longer valid. It should stand up firmly for its values and should no longer allow Russia to undermine its credibility.

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