Navalny’s health is deteriorating rapidly. Is Russia’s president letting his most important opponent die in custody? If the Council of Europe does not act now, it will make itself superfluous.
Hardly anyone shaped post-war Europe as much as the Frenchman Pierre-Henri Teitgen. And hardly anyoneis so forgotten today.
Teitgen fought in the resistance against Hitler. He was arrested by the Gestapo and narrowly escaped the concentration camps. After 1945, he rose to become France’s Minister of Information and Justice under de Gaulle and helped found the daily newspaper “Le Monde”.
Above all, Teitgen was one of the initiators of the Council of Europe, an association of European states whose most important body is the European Court of Human Rights (ECHR) in Strasbourg.
A question of life and death
The Holocaust was on Teitgen’s mind all his life. “Democracies do not become Nazi states overnight,” he said. “Evil spreads cunningly. Step by step, freedoms are suppressed.”
Teitgen and his comrades-in-arms wanted to ensure that such a catastrophe would not happen again in Europe. The Council of Europe was supposed to prevent democracies from turning into dictatorships. It is one of the great achievements of the post-war period. Now, however, it is about to become irrelevant.
Although the number of members in the Council of Europe has grown from ten to 47 in recent decades, many states no longer feel bound by its word. Russia, in particular, is systematically undermining the body.
The Kremlin, like all other Council members, has officially committed itself to implementing ECHR rulings. In reality, however, it mostly ignores them. For a long time, this was a nuisance for the Council of Europe. Now it is a matter of life and death.
Russia’s most prominent opposition figure, Alexei Navalny, has repeatedly appealed to the ECHR, a total of twenty times, more than any other citizen. As recently as February, the ECHR ordered that Navalny be immediately released from prison in Russia. However, the Russian regime has defied this ruling as well.
Everything depends on Germany
Navalny, who only last summer narrowly survived a poisoning by the Russian secret service, has since gone on hunger strike. His health has deteriorated dramatically. His lawyers warn that he could die any day.
The Europeans have a number of options to influence Russia’s President Vladimir Putin. They could impose sanctions against his regime, Germany could stop the construction of the Nord Stream pipeline.
But the Council of Europe in particular has seldom been so challenged. It must exert pressure on Moscow. The „European Stability Initiative“ (ESI), a think tank based in Berlin, shows how.
In a recent paper, Gerald Knaus’s experts at ESI argue that the Council of Europe could issue an ultimatum to Russia with a two-thirds majority in the Committee of Ministers. If the Kremlin does not release Navalny, Russia could be temporarily expelled from the Council of Europe. It would be a sign that Europeans are not willing to accept Russia’s internal and external aggression without further action.
Germany is now likely to be the main player in the dispute with Moscow. The German government still holds the chairmanship of the Committee of Ministers of the Council of Europe until the end of May. In a speech to the Council of Europe on Tuesday, German Chancellor Angela Merkel promised to stand up for Navalny. „We are very worried,“ she said.
Migration researcher and rule of law expert Gerald Knaus calls for Russia to be expelled from the Council of Europe over Alexei Navalny’s imprisonment if the opposition leader is not released. In an interview, he explains what Europe must do in its dealings with Russia.
Gerald Knaus is best known as the “architect” of the refugee agreement between the EU and Turkey. However, the chairman of the Berlin think tank European Stability Initiative (ESI) has for years also been writing about deficits in the rule of law in Eastern Europe, for example in Poland and Hungary. For him, Russia is an extreme case of the departure from democratic values that can also be observed in other European countries. He calls for “drawing a red line” in dealing with Russia in order to stand up for the credibility of the European Convention on Human Rights’ values.
WELT: Mr Knaus, Russia has massed its troops on the Ukrainian border, put opposition activist Alexei Navalny in a penal colony, and denied him medical treatment. Washington has threatened Moscow with consequences, but Brussels and European capitals have contented themselves with admonitions. These excesses on their own doorstep seem to interest Europeans little. Why is that?
Gerald Knaus: The EU is divided. Some governments see Russian threats to their European neighbours as too unimportant to affect their own interests. So threats are played down, even the massing of troops to intimidate a neighbour. Other EU governments perceive themselves as powerless. This alleged powerlessness is fast becoming a self-fulfilling prophecy. There are responsible options for action, even now.
WELT: There are already EU sanctions against Russia because of the Ukraine War. You suggest threatening Moscow with expulsion from the Council of Europe because of the Navalny affair. Do you think Putin will be impressed by that?
Knaus: The first priority is to try saving Navalny’s life. In addition, no other European has turned to the European Court of Justice in Strasbourg as often as he has, 20 times in ten years. The court has also repeatedly condemned Russia, but the effect of these judgements has been damning. Moscow systematically ignored them. Those who think the Council of Europe is pointless may accept that. But those who believe in the idea behind the oldest human rights organisation in Europe cannot want it to become a European UN, where even North Korea remains a member, no matter how it behaves.
WELT: That seems to be Moscow’s view of things. Wouldn’t a possible expulsion be more than a symbolic step?
Knaus: First of all, the Council of Europe should now make clear that if Navalny is not released within days, as the Court demanded, Russia’s membership will be suspended. Yes, this is also about symbols like those that once inspired dissidents like Sakharov and Havel, who repeatedly pointed out the gap between the human rights rhetoric of their regimes and their reality.
That is precisely what Russia wants to prevent in the Council of Europe. Moscow wants to show that these values, to which one could appeal, do not exist at all, that everything is for sale. For example, the Russian state has paid Navalny around 120,000 euros in compensation after ECHR rulings, but has not changed its policy. So, as a state, can you buy your way out of constant violations of fundamental rights, up to and including the assassination attempt by the secret service last summer? Or is there any behaviour where the credibility of the Council of Europe, the Human Rights Court, and the values behind it are at stake?
WELT: You rightly said that Europe is divided in its relationship with Russia. How can you convince Russia-friendly countries like Hungary or Austria to become more critical with Moscow?
Knaus: The EU can and will always have economic relations with states like Russia, Egypt, or China, and cooperate on foreign policy where there are common interests. But the Council of Europe is about fundamental values, not economic relations. According to its statutes, it is a club of democracies that remember their human rights obligations. Why are we allowing this institution to be destroyed by authoritarian countries exerting illegitimate influence there? Little Azerbaijan is doing it, as the recent affair of some in the CDU shows. We have to protect our institutions, show that we take their rules seriously. Otherwise we show that we are ready to sell our souls.
WELT: What do you think should happen with Nord Stream 2? This often criticised project defended by Germany is the prime example of the separation of the economy and human rights.
Knaus: Months ago, I pleaded with members of the Bundestag to use the pipeline to put pressure on Russia in consultation with neighbours like Poland or the Baltic states. For example, to say that the almost completed pipeline will only be finished if Moscow is prepared to join the EU in pressing for new elections in Belarus. But perhaps it is already too late for that. However, the idea of simply continuing to build the pipeline in view of the Kremlin’s actions in Belarus and now in Ukraine, as if nothing had happened, is another fatal signal from Berlin.
WELT: Russia keeps complaining that they want to build the common European home from Lisbon to Vladivostok, only the Europeans are opposed to it. How credible are such accusations?
Knaus: Of course Russia is a European country. Italy under Mussolini, Spain under Franco were also European but they would not have been admitted to the Council of Europe. There are states in Europe today that suspend human rights, the rights of minorities, the political opposition, the right to demonstrate. In the 1950s, however, there was no question of fascist Spain or the GDR joining the Council of Europe. It was known that elections in a democracy could not be equated with elections in the Soviet Union. Today, Russia in particular is trying to blur these differences. A strong Council of Europe with its court would stand in the way. Even the Soviet Union could join today’s Council of Europe.
WELT: What needs to happen for relations between Russia and Europe to improve?
Gerald Knaus: The first prerequisite is that Russia renounces foreign policy aggression. To this end, we must never give up the hope that great dissidents like Andrei Sakharov had even in the Soviet Union: that their country too will one day respect the values of the 1950 Human Rights Convention. For this to happen, however, we must protect the Convention now.
A conversation with Gerald Knaus, whose think tank „European Stability Initiative“ has exposed the corrupt connections of members of the Bundestag to Azerbaijan.
Question: Mr Knaus, with reports from your think tank, the „European Stability Initiative“, or ESI for short, you initiated a development more than ten years ago that is now also creating a stir in the Bundestag: Apparently, several current and former members of the CDU/CSU have allowed themselves to be bought by the regime of the Azerbaijani dictator Ilham Aliyev. How did your research begin?
Knaus: We were actually researching the situation of women’s rights in Azerbaijan in 2009, when a controversial referendum was held to allow Ilham Aliyev to become president for life. There were protests and arrests. Two young activists we knew were beaten up in a restaurant in Baku by paid hooligans. When they went to the police, it was not the perpetrators who were investigated, but they who were arrested and sent to prison. That was when we decided to research the situation of young dissidents and came across something unexpected: while the repression in the country was getting worse, the assessment of the situation by the Council of Europe, to which Azerbaijan was admitted in 2001, was becoming more and more positive. This was strange. We began to look into how this could have happened.
Question: So in the beginning there was no suspicion of corruption against Western politicians?
Knaus: I could not have imagined what we soon found out about the Council of Europe and European politicians active there. I was naïve. Then in 2012, insiders explained to us how this policy worked: parliamentarians from all over Europe received jewellery, vacation trips and money, election observers were getting tens of thousands of euros for positive statements about Azerbaijan. Staff at the Council of Europe confirmed to us behind closed doors that Azerbaijan’s actions were an open secret in Strasbourg. Other parliamentarians said they had long suspected some colleagues of acting strangely in Baku. But how to write about it without hard evidence? The first task was to explain exactly how the regime strategically bought votes in the Council of Europe and to describe who spoke and voted publicly about Azerbaijan and how. We traced how networks in the Council of Europe systematically elevated apologists of the Azerbaijani regime to leading positions. We saw that certain MPs spoke out in defence of the regime in every debate on Azerbaijan. Many politicians from all over Europe regularly went to Baku as election observers to call elections free and fair, even though the voting was like in the GDR.
Question: And you thought you could bring down this system with a few reports?
Knaus: We hoped: If we describe this, there will have to be an investigation. It was about bribery of MPs in the most important human rights institution in Europe. But that was also naïve. In the next five years, everything got much worse, in Azerbaijan as in the Council of Europe.
Question: ESI coined the term „caviar diplomacy“ – what does that mean?
Knaus: That was the name of our report from May 2012, in which we described how the Aliyev regime infiltrated the Council of Europe. The symbol of this policy was caviar, but in fact it was about a lot of money. Jewellery, expensive carpets, invitations with business class flights to Baku including a stopover in luxury hotels in Istanbul. This was a test: whoever accepted such gifts was a candidate for further, bigger ones. This was also the case with the Italian Christian Democrat Luca Volontè, who was sentenced to four years in prison in Milan in January this year for accepting bribes from Azerbaijan. Volontè was not just any MP, but leader of the European People’s Party group, the largest in the Parliamentary Assembly of the Council of Europe, which includes the CDU. He helped mobilise a majority of MPs, who he listed in emails to his accomplices in Baku, to vote down a resolution on political prisoners in Azerbaijan in January 2013. One consequence of this scandalous vote was another wave of arrests in Azerbaijan. All those who had cooperated with the Council of Europe in Baku were arrested. Another consequence was that Aliyev could publicly declare with a cold smile that there were no political prisoners in his country – after all, the Council of Europe had confirmed this, with 125 votes.
Question: Could all this be proven in court?
Knaus: Only if prosecutors also take it to court like in Milan. The Italian public prosecutor’s office showed that Volontè set up a „consulting firm“ in Milan at the end of 2012. Three weeks later, 220,000 euros were transferred to its account from Azerbaijan via a shell company. In the end, a total of 2.4 million euros was transferred to Volontè by mid-2014, and he even expected more than 10 million. The fact that this did not happen was due to the Italian banking supervisory authority and Milanese prosecutors who, during a raid, secured Volontè’s communication with the Azerbaijani financiers.
Question: What were the connections to Germany?
Knaus: Years before, the former CSU member of the Bundestag, Eduard Lintner, who was, among other things, parliamentary state secretary in the Ministry of the Interior and until January 2010 in the Council of Europe, had always sided with Azerbaijan there. Lintner, too, regularly went to Azerbaijan to observe elections, during and after he sat in the Council of Europe. He himself praised the completely manipulated parliamentary elections in 2013 as exemplary. Lintner also financed „private election observation missions“ by other politicians, who always mutated into admirers of the regime in Baku. The same shell companies, with owners in the Virgin Islands, that had transferred money from Baku to Volonte’s consulting firm transferred money to Lintner. Since the beginning of 2020, German prosecutors have been investigating what this was all about.
Question: The large majority of the CDU/CSU in the Bundestag is certainly not corrupt. But why did this majority for years tolerate clear indications of dubious and probably also lucrative contacts between some of their colleagues and Azerbaijan? Out of party discipline? Because they were overworked? Or weren’t interested?
Knaus: Azerbaijan and the Council of Europe appeared to many to be remote issues far from the concerns of ordinary voters. But it is a fallacy to think that this is far away and none of our business. The Parliamentary Assembly of the Council of Europe in Strasbourg, which meets four times a year, is made up of members of national parliaments, in Germany’s case the Bundestag. If MPs take bribes in Strasbourg, they continue to function in this way in national parliaments afterwards, as corrupted politicians. And if even we, a small think tank from Kreuzberg, were able to find out what happened in Strasbourg, then the secret services of large countries certainly know that too. This is how politicians become susceptible to blackmail – also in national parliaments and in their later careers. Luca Volontè met with Azerbaijani middlemen in Baku in the presence of members of the Russian Council of Europe delegation to discuss strategies. In addition, the parliamentarians of the Council of Europe elect the judges of the Human Rights Court.
Question: In Italy and Germany, public prosecutors are investigating possible participants in the corruption cartel. Have there been reactions in other countries as well?
Knaus: Prosecutors in other countries would also have to follow up on the information. So far, however, almost all the apologists of the regime we reported on have remained unchallenged. It would be ideal if one of those involved had incentives to appear as a principal witness.
Question: It is remarkable that ESI’s reports had no effect at all for years. Why did those involved feel so secure?
Knaus: The general atmosphere of venality was so widespread in Strasbourg that individual MPs who were outraged by it were simply resigned to it. Caviar diplomacy simply continued for five years after 2012. The regime in Baku even had Azerbaijani advisors to the Council of Europe arrested, that’s how secure it felt. Moreover, reports were launched in Brussels by certain circles claiming that we were financed by Armenia, or by a Russian gas lobby to prevent Azerbaijani pipelines. In addition, Thorbjørn Jagland, the then Secretary General of the Council of Europe and then Chairman of the Nobel Peace Prize Committee, also showed no interest in investigating into what was going on.
Question: You claim that the Secretary General of the Council of Europe was part of the corruption?
Knaus: No. But Jagland should have launched an investigation much earlier, given what was known in Strasbourg. He didn’t do it for years.
Question: Why not?
Knaus: We cannot see into people’s heads. But the Secretary General of the Council of Europe is elected by its parliamentary assembly, and there the so-called dark coalition of Azerbaijan and its allies at that time was dominant. Against this lobby, a Secretary General could hardly be re-elected. The largest group of delegates in the Council of Europe is the Russian one with 18 deputies. Apart from the Russians, most Spanish and Italian MPs, many Eastern Europeans and also influential Frenchmen were on Azerbaijan’s side in votes. The leader of the liberal faction, Jordi Xucla, was a defender of Baku. There were also leftists and social democrats, British Tories, European right-wing populists and several successive leaders of the European People’s Party group. Over the years, they had formed veritable entailed estates: New MPs took over Baku relations from their predecessors. In Belgium, some liberals showed an astonishing love for Azerbaijan, in Spain it was conservatives, in Eastern Europe ex-communists. Most Germans from all parliamentary groups voted with the Scandinavians and the Swiss for human rights. But there were some all the more astonishing exceptions – among them the recently deceased CDU MP Karin Strenz and Axel Fischer, who until recently was chairman of the audit committee in the Bundestag.
Question: At what point then did the ESI revelations have an impact?
Knaus: In December 2016, our report „The European Swamp“ was published and received wide attention. But until April 2017, there was still bitter resistance to an independent investigation into the allegations. It was individual determined MPs, such as the German SPD politician Frank Schwabe and the Dutch Christian Democrat Pieter Omtzigt, who mobilised a broad coalition. Nevertheless, too little has happened across Europe. The Milan verdict against Volontè reads like a thriller, but if this politician alone, who was in Strasbourg for only a few years, received millions from Baku, one can only guess at how much money may have flowed since 2003. But so far only Italy and Germany are investigating the matter. Axel Fischer is being investigated by the Munich Public Prosecutor’s Office on the suspicion of bribery of elected officials. The Bundestag has therefore lifted Fischer’s immunity. His house was searched, as were Lintner’s and Strenz’s before him.
Question: Some MPs are now rightly in the pillory. But isn’t there a danger that in the end the false impression „politicians are all corrupt anyway“ will stick?
Knaus: This impression is created when institutions tolerate corruption for years and too few have the courage to address it and correct it in time. Until 2017, even Fifa had a stricter anti-corruption system than the Council of Europe. That has changed since then, at least in the Parliamentary Assembly of the Council of Europe. But the most important thing is that parties do not cover for their members in cases of serious suspicion, neither in Strasbourg nor in Berlin. Buying votes is never a trivial offence.
Question: Is there such a thing as a lesson from caviar diplomacy?
Knaus: The deep fall of the Council of Europe shows how easy it is to corrupt institutions when an authoritarian regime goes about buying parliamentarians with determination and a lot of money. This is a warning, because other states are probably trying it too, especially since they have seen that this policy was entirely risk-free for the regime in Azerbaijan. To date, the exposure of Azerbaijan’s bribery has had no consequences for Aliyev whatsoever. The Italian Football Federation once reacted severely to referee corruption and sentenced champion Juventus Turin to forced relegation to the second league in 2006. The member states of the Council of Europe, on the other hand, have looked the other way for years and to this day have done nothing to outlaw such behaviour by one of its members. Not even Azerbaijan’s right to vote in the Committee of Ministers has been suspended. Why should other states not follow Baku’s example? Buying votes in Europe is unfortunately far too easy.
Question: The exposure of „caviar diplomacy“ is not the first example of ESI reports having an impact. What does a think tank have to do to have an impact on society and to bring about change?
Knaus: In order to be able to swim against the tide for years out of conviction, if necessary, it is important that institutions that financially support a think tank do not influence how and on which topics it publishes and when it does so. This goes for our most important donors – the Essen-based Mercator Foundation, the Swedish Ministry for Development Aid and the Open Society Foundations. In addition, we clearly define our own role: we work scientifically and independently. We are not lobbyists and do not take money from governments to advise them. This also allows us to take risks. Because one thing is clear: anyone who might have influence will be attacked.
Question: From the outside, it looks like ESI is working rather slowly. It sometimes takes years before you publish reports.
Knaus: Influence is always the result of years of work. It never works through one report alone, but through many publications, lectures, and meetings. At some point something will fall on fertile ground. That cannot be planned. You have to run with an issue for years. Moreover, we always do research as a team. As a rule, individuals cannot carry out an empirically based analysis on a complex topic. Sometimes we bring in additional experts. Years ago, we worked intensively on how the quality of government statistics could be assessed and brought a former employee of the European statistics authority Eurostat into the team for this purpose. When it came to visa liberalisation for the countries of the Western Balkans, we worked closely with former European interior ministers. On the crisis of the rule of law in Poland, we have been cooperating intensively with Polish lawyers for years.
Question: Is there a strategy for making think tank reports particularly effective?
Knaus: Influence for a think tank never consists of telling people what they should think. Influence happens when a report describes a situation so credibly and convincingly that readers come to similar conclusions to the ones we came to on their own. Many reports try to convince only those who have similar views anyway. Moreover, policy recommendations must convince practitioners. One must also never forget that people in important positions who can decide things live on an ever-growing mountain of papers. If an analysis is to stand out among the hundreds of studies that appear every week, it must be grippingly written. Because if people don’t remember a think tank’s report after a month, it’s as if it was never written. I hope that everyone who read our reports on Azerbaijan and the Council of Europe could remember them after a month. Like the prosecutors in Milan who started from our work. People think in stories. So we write stories. Only then can we succeed in influencing the world through papers.
The questions were asked by Michael Martens
Video presentations on Caviar Diplomacy
Presentation by Gerald Knaus on corruption in the Council of Europe (September 2017). Video: Jarl Hjalmarson Foundation
Gerald Knaus: The end of shame? Azerbaijan, the Council of Europe and the capture of Europe (November 2014). Video: Norwegian Helsinki Committee
One of our many newsletters on the Council of Europe
On the 70th anniversary of an institution worth saving
As the Council of Europe reaches the robust age of 70 today some might ask whether there is all that much to celebrate.
After all, at this moment the Council of Europe is in the middle of a serious crisis. Looking only at the past few years this is the trend: it is failing in Russia. It is failing in Azerbaijan. It is failing in Turkey. It has made far too weak an impact on arresting the erosion of the rule of law in Hungary and Poland. It is facing serious internal and external threats to its credibility. It has yet to deal seriously with the biggest corruption scandal in its history.
The Council of Europe is in a worrying shape despite the fact that there are very committed people in PACE, where the past two years have seen an uprising of a virtuous coalition of members; despite the fact that there are very committed people in the secretariat; and despite the fact that there are (far too few) countries taking the CoE as seriously in the Committee of Ministers as it deserves.
At the same time, the current leadership in the secretariat in Strasbourg has failed the institution far too long. Mostly, the Committee of Ministers is weak and indecisive. And even in PACE old networks that want to get back to the bad old days of Pedro Agramunt have not given up. (Just check how few MPs are complying with declarations on possible conflicts of interest.)
In the coming months the credibility crisis of the institution could get a lot worse. There are budget cuts planned that could do lasting damage. These are imposed because of blackmail by a big member mocking the values of the institution. The Council of Europe is facing threats today that could destroy it as a force for good.
This would be tragic. For there is a lot that is worth defending – from the ECtHR and the Venice Commission to Greco, the CPT and the Human Rights Commissioner’s office. There is also a lot to be inspired by in the idea of a club of imperfect European democracies holding each other to the highest standards – and focusing on core human rights. There is a real need for such an institution today, as human rights are coming under attack across Europe, in old and new democracies.
ESI has written many reports, newsletters and papers about the Council of Europe in recent years. We advocated on a number of issues – from political prisoners to corruption, from resisting blackmail to protecting the court. Sometimes we even saw results after long efforts. At times it seemed quixotic – there were not that many other think tanks in Europe working on the institution itself with such obsessive focus.
We would not have done this, had we not been convinced that the Council of Europe matters hugely. That it is truly an institution representing values and embodying ideals worth fighting for. And yet, there is one more thing we have also learned since 2012: never assume that anything will sort itself out without effort and vigilance. And any impact requires a huge coalition of people who care enough to take risks – in and outside the institution. Here civil society organisations have an important role of play.
So this is our anniversary present: links to newsletters we sent out on the Council of Europe since 2012, joined by our hope that the reports which we will write about developments in Strasbourg in the coming decade will be more uplifting.
And with this hope, we wish a very happy anniversary!
Human rights, corruption and what is at stake for the Council of Europe
This week, a rebellion is unfolding in Strasbourg, directed against Spanish senator Pedro Agramunt, the President of the Parliamentary Assembly of the Council of Europe (PACE).
This rebellion is a response to allegations of serious corruption in PACE in recent years, as well as concern over the autocratic capture of this, the oldest, human rights body in Europe. It is a story involving the regime of Ilham Aliyev in Baku, Russian ultra-nationalists such as Leonid Slutsky, Italian Catholic politician Luca Volonte, who received 2.3 million euro from Azerbaijan, and in the last episode even Syrian president Assad in Damascus.
This week, the assembly has had enough, and a coalition of politicians, across party lines and from different national groups, decided that Pedro Agramunt could no longer remain president; this was stated in public, as well as strongly communicated in private.
To explain the frustration and collapse of trust in Agramunt, booed off stage while chairing the opening of the spring session in the Palais de l’Europe in Strasbourg on Monday, one has to see how different developments came together:
First, Agramunt made his career in PACE working on and with Azerbaijan. He visited Azerbaijan more often than any other MP in the assembly; he observed, and helped whitewash, elections in Baku for many years. As one of the rapporteurs of PACE for Azerbaijan he subverted the assembly’s work on political prisoners. As more evidence came out how Azerbaijan operated its lobbying machine in recent years, these actions appear in a different light, and raise serious questions how he understands the role of PACE.
Second. since late 2016 Pedro Agramunt resisted; and even worked to block; serious proposals for an investigation into corruption allegations involving Azerbaijan, as demanded by over 100 MPs in January 2017. In this, Agramunt cooperated with his others, including Spaniard Jordi Xucla, who leads the liberal group in Strasbourg. They used excuses and procedural tricks to oppose any investigation. Why don’t they have any interest in clarifying what happened?
For a short introduction, see the latest ESI newsletter:
Third, Agramunt (together with Destexhe and Xucla) went to Syria in March. He went with Russian ultra-nationalist Leonid Slutsky on what was a Russian PR tour to bolster Assad. There was no other point to this trip: it served no humanitarian purpose and Agramunt did not “build any bridges” either. So why did he go?
Fourth, Agramunt did a bad job addressing many serious concerns and question of the assembly. He offered implausible and contradictory explanations. He apologized for the reaction by the members to his visit to Assad. He apologized for having been manipulated by Russians (Agramunt and Slutsky have been friends for years). What Agramunt did not apologise for was having visited a war-criminal with a Russian delegation.
Agramont, Xucla and Destexhe represent what is wrong in the Council of Europe today. Their cynical views about human rights, their close relationship to autocrats, procedural games and striking vision of the role of the Council of Europe have contributed to lead this institution into its biggest credibility crisis in decades.
This week the assembly in Strasbourg also decided on an external and independent investigation – an unprecedented step – into these corruption allegations in Strasbourg. ESI has worked on this issue for six years now. Here is more:
On 26 January the Immunities Committee of the Parliamentary Assembly of the Council of Europe (PACE), chaired by Social-Democrat Liliane Maury Pasquier from Switzerland, adopted a unanimous declaration on allegations of corruption “to send a clear message of zero tolerance”:
“The committee calls on the Bureau of the Assembly to set up an independent external investigation body to assess the functioning of the Assembly and shed light on hidden practices that favour corruption, the only measure which would end impunity for abuses and restore confidence in the Parliamentary Assembly, its actions and decisions.”
On Friday 27 January the PACE Bureau responded and unanimously agreed:
“… that an independent external investigation needs to be set up to shed light on hidden practices that favour corruption. The Bureau charged the PACE Secretary General with the preparation of a Memorandum on the draft terms of reference of the independent external investigation body.”
Then, on 3 March 2017, Wojciech Sawicki, the Secretary-General of PACE, presented a concrete proposal for an independent external body to investigate corruption allegations (see below).
This is an encouraging and constructive outline. If it would be adopted PACE would be able to restore its honour and credibility. At the same time it would be naive not to expect strong resistance on the part of those who resist (or even fear) transparency.
At a meeting of the Bureau in Madrid on 9 and 10 March no agreement could be reached on how to respond to the Sawicki proposal. It is certain that some will now try to water it down, or to present an alternative plan, that would fall far short of what the Bureau decided on 27 January.
The best would be for the Bureau of PACE to forward the Sawicki proposal to the next regular PACE plenary meeting in April. On a matter of such importance, it is the whole assembly that needs to be brought into the debate. As a background to this discussion: this is the text of the proposal made by the Secretary General.
3 March 2017
Bureau of the Parliamentary Assembly
Allegations of corruption within the Assembly – setting up of an independent external investigation body
Memorandum by the Secretary General of the Parliamentary Assembly
At its meeting on 27 January 2017, the Bureau of the Parliamentary Assembly decided to set up an external investigation body to shed light on the allegations of corruption within the Assembly. This decision was taken in response to the concerns expressed by numerous national delegations, the EPPD/CD and SOC political groups, many Assembly members, as well as non-governmental organisations working in the field of the protection of human rights and the fight against corruption. This decision is in conformity with the position of the Committee on Rules of Procedure, Immunities and Institutional Affairs, to which the matter had been referred by the Bureau on 23 January, as it appear in the declaration adopted by the committee on 26 January.
The Bureau instructed the Secretary General of the Parliamentary Assembly to “prepare a memorandum on the draft terms of reference (legal basis, composition, duration, tasks, competences)” of the independent external investigation body as proposed by the Committee on Rules of Procedure, Immunities and Institutional Affairs.
It should be pointed out that the decision for the Assembly to set up a strictly external investigation body, in such a context, is an unprecedented one. Furthermore, as is the case in many national parliaments, the Assembly has thus far opted for internal parliamentary committees (ad hoc committees comprising members of the Assembly), in accordance with the means and procedures traditionally implemented by parliaments in application of their investigative powers. There was unanimous agreement, both within the Rules Committee and the Bureau of the Assembly, that this option was inappropriate to the case at hand and would not meet the many clear calls for an independent external investigation body.
The aim of this memorandum is to establish the legal and operational reference framework of the investigation body, which should be set up as quickly as possible.
Statutory and regulatory framework
Pursuant to Article 24 of the Statute of the Council of Europe, the Parliamentary Assembly “may with due regard to the provisions of Article 38.d,establish committees or commissions to consider and report to it any matter which falls within its competence under Article 23, to examine and prepare questions on its agenda and to advise on all matters of procedure.”
This was the case for the “Commission of Eminent Statesmen”, known as the “Colombo Commission”, established by the Assembly through Recommendation 994 (1984) on the future of European co-operation. This Commission, tasked with working out future prospects for European co-operation “beyond the present decade”, comprised eight eminent European figures from various member states serving in individual capacity.
Accordingly, the Assembly has the authority to establish an independent investigation body, whose terms of reference must be approved by the Assembly (in the framework of the Progress Report of the Bureau and the Standing Committee).
Draft terms of reference of the independent external investigation body
3.1 Title and length of the term of office
The Assembly decides to set up an independent external investigation body to look into allegations of corruption within the Assembly.
It shall begin its duties with effect from the appointment of its members and its duties shall terminate on the submission of its final report, or at the latest on 31 December 2017. The Bureau of the Assembly may extend the investigation body’s terms of reference, if need be.
The purpose of the investigation body is to carry out a detailed inquiry into the allegations of corruption and fostering of interests made against certain members or former members of the Assembly, to examine the practical functioning of the Assembly in tis various activities (including, but not restricted to part-sessions, committee and sub-committee meetings, rapporteur missions, election observation missions and participation in various events) and its decision-making mechanisms in order to:
– verify whether there are any forms of individual conduct by members of the Assembly or former members of the Assembly which have not respected the provisions of the Code of Conduct for members of the Parliamentary Assembly and other relevant codes of conduct;
– identify any practices contrary to the Assembly’s ethical standards, and determine the extent thereof;
– establish, in light of these findings, whether there is sufficient proof to take action against members of former members of the Assembly, pursuant to paragraphs 19 and 20 of the Code of Conduct for members of the Parliamentary Assembly;
– draw up recommendations on the measures to be implemented to rectify the shortcomings and fill the gaps in the Assembly’s ethical framework.
The investigation body shall comprise three members, independent senior figures, from institutions enjoying the highest moral reputation, having proved and acknowledged professional competence, expertise and experience in connection with the mission of the investigation body (such as ethics office, financial auditor, fraud examiner, legal processional having server as an investigator, prosecutor, judge or expert in procedures for monitoring ethical standards).
Members must have experience of parliamentary functioning and, if possible, knowledge of the functioning of the Council of Europe.
Members are appointed by the Bureau of the Assembly, which shall seek a suitable balance of skills and knowledge – and wherever possible a gender balance. These appointments are submitted to the Assembly for ratification. Once appointed, members cannot be dismissed.
A vacancy caused by resignation or death shall be filled for the remainder of the term of office by the Bureau of the Assembly, subject to ratification of the appointment by the Assembly.
3.4 Procedure and competence
The investigation body shall decide on its mode of operation, its working methods and the procedures required to enable it to fulfil its mission, in keeping with the legal and regulatory framework of the Council of Europe.
The investigation body shall gather and make use of all relevant information and all documentary, testimonial and material evidence necessary for the fulfilment of its mission. It may, in particular:
– summon anyone, in particular any member or former member of the Assembly and any member of the Assembly secretariat, to give evidence,
– hear any witness wishing to be heard by the investigation body,
– request the assistance of any national authority of a member state,
– have access to or request the provision of any document it deems relevant for its investigation, irrespective of its form or medium – printed, manuscript, electronic, photographic, audio/video recording – or its nature – public or private.
The investigation body shall have no jurisdictional competence. It may decide to transmit the information it has gathered to any national judicial authorities, on official request, in the context of ongoing criminal investigations or proceedings, in keeping with the legal and regulatory framework of the Council of Europe.
The work of the investigation body shall enjoy the utmost confidentiality.
The investigation body shall report back to the Bureau of the Assembly, presenting a final report. This report shall be made public. The investigation body may decide that parts of this report shall remain confidential.
The working languages of the investigation body shall be the two official languages of the Organisation.
The investigation body shall sit in Strasbourg (at the seat of the Council of Europe) and may, in the exercise of its mission, travel to any member state.
In drafting its recommendations, the investigation body shall refer to the ethical standards in force in the Assembly and shall take account of the case-law of the European Court of Human Rights and the work of the Group of States against Corruption (GRECO), MONEYVAL and the Venice Commission.
3.5 Status of the investigation body
The members of the investigation body shall serve in an individual capacity, independently of their national obligations.
In the exercise of their duties, the members of the investigation body shall enjoy the privileges and immunities granted to experts of the Council of Europe (applicable under Article 2 of the Protocol to the General Agreement on Privileges and Immunities (ETS No. 10)). Council of Europe member states are called upon to facilitate the mission of the investigation body and, in particular, guarantee the freedom of movement of its members within their respective territory.
Privileges and immunities are granted to the members of the investigation body in the interests of the Council of Europe, not for their personal benefit, in order to enable them to carry out their duties in an independent and efficient manner.
3.6 Rights and obligations
Pursuant to paragraph 21 of the Code of Conduct for members of the Parliamentary Assembly, the members and honorary members of the Assembly shall undertake to co-operate fully within the investigation body, in the exercise of its mission and at every stage of its investigation. They shall be required to provide any information demanded of them and any document in their possession.
Staff of the Council of Europe Secretariat, including the Assembly secretariat, shall be covered, from the point of view of whistle-blowing, by the provisions of Rule No. 1327 of the Secretary General of the Council of Europe of 10 January 2011 on awareness and prevention of fraud and corruption.
The protection recognized by the above mentioned Rule No. 1327 shall apply to any witness heard by the investigation body who, although they are not Council of Europe Secretariat members, participate in the Council of Europe’s activities, wherever they may be held – in particular trainees, experts, consultants.
The rules governing the access to, holding of and exploitation of Council of Europe documents apply to the investigation body. The Secretary General of the Council of Europe is called upon to facilitate the mission of the investigation body by putting at its disposal the documents, of any kind, which the investigation body believes are necessary. The investigation body shall make use of confidential or restricted documents only if they are directly related to the investigation it is tasked with.
In its final report the investigation body shall mention any refusal to co-operate, or any refusal to disclose information or to give access to or transmit any document necessary to carry out its duties. In case of non-cooperation or insufficient cooperation, members or honorary members of the Assembly would be liable to the sanctions provided for by the Code of Conduct for members of the Parliamentary Assembly.
Means and material conditions of operation of the independent investigation body
The Secretary General of the Parliamentary Assembly shall ensure that the investigation body is provided with the administrative and financial resources required to fulfill its mission and covering all operating costs of the investigation body and its secretariat (wages, fees, per diem, travel expenses in accordance with the rules applicable to Council of Europe official journeys, insurance).
The investigation body shall be assisted by a secretariat with knowledge and expertise in the functioning of the Council of Europe, that is however independent of the Parliamentary Assembly.
The premises made available to the investigation body shall ensure a working environment guaranteeing confidentiality, security and calm.
The Bureau of the Assembly is invited to consider the above proposals and:
– adopt the draft terms of reference of the investigation body, as it appears in Part 3. This must be ratified by the Assembly, in the framework of the Progress Report of the Bureau and the Standing Committee;
– instruct the Secretary General of the Parliamentary Assembly to hold private talks with relevant institutions/ senior figures likely to accept the mission assigned to the investigation body, and to come up with proposals on the composition of the investigation body at the next Bureau meeting;
– instruct the Secretary General of the Parliamentary Assembly to guarantee the investigation body the resources required to ensure its proper functioning, in accordance with the stipulations contained in Part 4 and, to this end, make provisions in the Assembly budget for the appropriations necessary for the functioning of the investigation body, and if need be, in accordance with Article 38.d. of the Statute of the Council of Europe, ask the Secretary General of the Council of Europe to allocate a specific budget for the investigation body.
The success of the independent investigation body’s mission shall rest on the full co-operation of the members and former members of the Assembly, and on that of the staff of the secretariat of the Council of Europe, in particular of the Assembly. Having regard to the rights and obligations of staff members and the guarantees conferred upon them by their status, it is essential to notify the Secretary General of the Council of Europe of these terms of reference. Council of Europe staff members are responsible to the Secretary General, pursuant to Article 2 of the Staff Regulations, and the latter shall therefore be invited to formally impose on the staff members a duty of co-operation with the investigation body.
The mission of the independent investigation body may also require the full co-operation of the national authorities of certain member states – national parliaments, Ministries of Foreign Affairs and of Justice, judicial services, etc. Accordingly, the Committee of Ministers should be informed of the arrangements put in place by the Assembly and be invited to adopt a Resolution in which it would officially call on the member states to support and facilitate the mission of the investigation body, to pledge to fully co-operate with the investigation body, in particular to guarantee the freedom of movement of its members within the territory on of their respective state, and to ensure that any witness will be afforded legal protection at national level.
 Parliamentary delegations of Switzerland on 17 January, Luxembourg on 24 January, Denmark, Estonia, Finland, Latvia, Lithuania, Norway and Sweden in a joint letter on 25 January, Belgium, the Netherlands on 25 January, France, Germany on 26 January and thereafter delegations of Italy on 3 February and Austria on 17 February.
 See Written Declaration No. 624 on 25 January 2017 on Parliamentary Assembly integrity (Doc. 14256).
 The opinion of the Directorate of Legal Advice and Public International Law was sought for the purposes of drafting this memorandum.
 Article 38.d: „The Secretary General shall refer to the Committee [of Ministers] requests from the Assembly which involve expenditure exceeding the amount already allocated in the budget for the Assembly and its activities“.
 In compliance with Article 29 of the Stature and Rule 41.a of the Assembly’s Rules of Procedure, an Assembly resolution establishing committees or commissions shall require a two-thirds majority of the representatives casting a vote.
 The draft terms of reference are based on existing precedents for independent committees of inquiry set up over the past decade at international level.
 Representatives attending meetings convened by the Council of Europe (…) shall, while exercising their functions and during their journeys to and from the place of meeting, enjoy the following privileges and immunities:
Immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their official capacity, immunity from legal process of every kind.
Inviolability for all papers and documents.
The right to use codes and to receive papers or correspondence by courier or in sealed bags.
Exemption in respect of themselves and their spouses from immigration restrictions or aliens registration in the State which they are visiting or through which they are passing in the exercise of their functions.
The same facilities in respect of currency or exchange of restrictions as are accorded to representatives of comparable rank of diplomatic missions.
The same immunities and facilities in respect of their personal baggage as are accorded to members of comparable rank of diplomatic missions.”
The representatives, however, “shall not be exempt from arrest and prosecution when found committing, attempting to commit, or just having committed an offence.” Lastly, “the immunity from legal process in respect of words spoken or written and all acts done by them in discharging their duties shall continue to be accorded, notwithstanding that the persons concerned are no longer engaged in the discharge of such duties.”
A few thoughts, written one year ago in autumn in the sunny garden of the Museum of Modern Art in Moscow, where I was then a visiting fellow.
The dark clouds of that moment – the sense of fragility of our institutions and norms and moral emotions – are very much more obvious today. Then was the moment of Willkommenskultur in Germany and Austria, a generous, emotional, fragile sense of possibility, that was real – perhaps my forebodings came from observing it from Russia, with sympathy and concern.
27 September 2015 (Facebook)
(Sonntag, im Garten des Museums für Moderne Kunst in Moskau)
Wir sollte uns keinen Illusionen hingeben.
Das Recht auf Asyl – all die Konventionen, auf die wir uns heute noch berufen können, in Kommentaren oder vor Gerichten – verschwindet in dem Moment, in dem Mehrheiten das wollen. Oder in dem die Minderheiten, die das wollen strategischer vorgehen als die Verteidiger der Menschenrechte.
Das hat Orban gerade wieder gezeigt, unbestraft; seine “Asylverfahren” an der Grenze sind eine Farce, doch seine Zustimmung steigt.
Das zeigen uns seit Jahren andere Mitglieder des Europarates. Azerbaijan war Vorsitzender des Europarates, verhaftete alle Menschenrechtsaktivisten … wo war die Reaktion? (jenseits der Menschenrechtsorganisationen, die das Regime einfach ignoriert). Wo war der Europäische Menschenrechtsgerichtshof? Abgemeldet, vom Regime ignoriert, vollkommen ungestraft. Heute, wo wir ihn brauchen, ist der Europarat eine unglaubwürdige Institution. Wir haben diese Entwicklung ignoriert, weil viele dachten, das betrifft nur Autokraten im fernen Osten Europas. Das war ein großer Fehler. Einer von vielen der die Menschenrechte in Europa in Gefahr bringt.
Jede, auch die grundlegendste, Menschenrechtsnorm, ist ständig in Gefahr sich im Nichts aufzulösen, wenn der Rückhalt schwindet. (Die Folter wurde in Russland Anfang der 19 Jahrhunderts von einem russischen Zaren abgeschafft; wir wissen was später passierte …).
Orban weiß das: er hat das Ende des Kommunismus, mit allen seinen Normen, erlebt. Er weiß, dass alles Menschliche vergänglich ist. Nun erwartet er, dass dies auch für das europäische Bekenntnis zu Asyl gilt, wenn er nur die Angst vor Muslimen instrumentalisieren kann.
Wenn die Briten über einen Austritt aus dem Menschenrechtsgerichtshof laut nachdenken, ja, eine Regierungspartei damit Wahlkampf macht, und gewinnt, warum dann nicht Ungarn? Warum nicht Österreich, unter einem Bundeskanzler Strache? Was bleibt dann? Wenn mehr Regierungen wie Orban denken, wer verteidigt dann “europäische” Standards? Diese werden dann einfach umdefiniert. Darauf setzt er. Daran arbeitet er.
Diese Krise sieht er als eine große Gelegenheit. Und die, die nicht seiner Meinung sind – wie mächtig auch ihre Positionen, ob nun Bundeskanzlerin in Berlin oder Präsident der Kommission in Brüssel – setzen ihm derzeit nichts entgegen: keine Strategie, nur Hilflosigkeit. Oder Ärger. Das aber stört ihn nicht; im Gegenteil.
Die Situation ist brandgefährlich. Das “Ende der Scham”, der Moment in dem Menschenrechte grundsätzlich in Frage gestellt werden, sinnentleert werden, umdefiniert werden, betrifft längst nicht nur Azerbaijan oder Russland.
Das Fundament auf dem unsere Grundrechte stehen kann zerbrechen. Das ist schon oft geschehen in der europäischen Geschichte. Darum geht es in diesem Ringen heute.