B Explanatory memorandum
by Mr Strässer, rapporteur
1 Introduction
1. This report is based on a motion
for a resolution, “The definition of political prisoners”,
Note for
which I was appointed rapporteur on 16 December 2009.
2. On 24 June 2010, this rapporteur mandate was initially merged
by the Committee on Legal Affairs and Human Rights with the related
topic of “Follow-up on the issue of political prisoners in Azerbaijan”,
Note for
which I had already been appointed as rapporteur on 24 March 2009.
For a variety of reasons, which at one stage included a change of
title of the merged reports,
Note the
committee recently decided to invite me to submit a separate report
on the present subject.
2 The historical context of the issue
of political prisoners in the Council of Europe: the accession of Armenia
and Azerbaijan
3. The issue of political prisoners
in the Council of Europe dates back to the negotiations on the accession of
Azerbaijan to the Organisation. Azerbaijan undertook,
inter alia, “to release or to grant
a new trial to those prisoners who are regarded as ‘political prisoners’
by human rights protection organisations”.
Note In November 2000, the Committee
of Ministers adopted Resolutions Res(2000)13 and Res(2000)14 inviting
simultaneously Armenia and Azerbaijan to become member States of
the Council of Europe, to be confirmed when the date of the accession
was fixed. In order to help reticent member States overcome their
reluctance, at the time, to accept the accession of these two countries,
a compromise solution was found within the Committee of Ministers,
whereby it was also decided, in November 2000, that the Committee
of Ministers would monitor, on a regular basis, democratic developments
in both countries. Armenia and Azerbaijan joined the Council of Europe
on 25 January 2001. The Committee of Ministers subsequently approved,
on 31 January 2001, the Secretary General’s initiative to appoint
three distinguished “independent experts”
Note who
would examine lists of cases of alleged political prisoners drawn
up by Armenian and Azerbaijani human rights non-governmental organisations
(NGOs).
Note Before
so doing, the independent experts, acting in a quasi-judicial capacity,
undertook the task of determining who could “be defined as a political
prisoner on the basis of objective criteria in the light of the
case law of the European Court of Human Rights and Council of Europe
standards”.
Note They then examined 716 cases
listed with a view to determining whether or not the detainees in
question were indeed “political” prisoners, on the basis of a set
of pre-established criteria to which all relevant Council of Europe bodies,
including the Azerbaijani authorities, agreed. Twenty-three cases
on the original list of 716 were given priority and dealt with by
the independent experts as so-called “pilot cases”. By April 2003,
many of the 716 cases were resolved and the list was reduced to
212 cases, which were the subject of the experts’ second mandate.
In July 2004, the experts submitted their final report to the Secretary
General. In addition to the 20 opinions on the pilot cases, they
adopted 104 opinions concerning the 212 cases referred to them.
They concluded that 62 persons were political prisoners, whereas
62 were not, or no longer.
Note
4. Since 2001, when Azerbaijan joined the Council of Europe,
the Parliamentary Assembly has considered the issue of political
prisoners in Azerbaijan on four occasions: in January 2002, June
2003, January 2004 and June 2005
Note – always triggered by the situation
in Azerbaijan and on the basis of the objective criteria developed
by the Secretary General’s independent experts.
3 The
notion of “political prisoner” as defined by the Council of Europe’s
independent experts and reconfirmed by the Committee on Legal Affairs
and Human Rights
5. Judge Stefan Trechsel presented
his and his colleagues’ findings regarding the definition and criteria
for the term of “political prisoner” at a hearing before the Committee
on Legal Affairs and Human Rights on 24 June 2010 in Strasbourg.
Note The independent experts based their
work on that carried out by Professor Carl Aage Nørgaard, then President
of the European Commission of Human Rights, who had been invited
by the United Nations Security Council to identify “political prisoners”
in Namibia in 1989/90. Professor Nørgaard’s close collaborator,
Andrew Grotrian, was also among the experts testifying at the hearing
on 24 June. The third expert at the hearing was Mr Javier Gómez
Bermúdez, judge, President of the Criminal Chamber of the Audiencia
Nacional (Spain). Following the discussion with the experts, the
committee approved the conclusions of my introductory memorandum
Note and invited
me to continue working on the basis of these objective criteria.
6. During the discussion, agreement was reached among the experts
that persons convicted of violent crimes such as acts of terrorism
cannot claim to be “political prisoners” even if they purport that
they have acted for “political” motives. Mr Gómez Bermúdez specified
that this principle is applicable in democratic States with legitimate
governments, where there could not be any talk of “legitimate resistance”
such as that of the French Resistance during the Second World War.
This argument is reinforced by Article 17 of the European Convention
on Human Rights (ETS No. 5, “the Convention”), entitled “Prohibition
of abuse of rights”.
Note
7. In short, the following framework has been developed by the
independent experts and endorsed by the committee; it differs according
to the nature of the offence for which the person in question is
imprisoned.
3.1 Purely
political offences
8. These are offences which only
affect the political organisation of the State, including “defamation”
of its authorities or similar misdeeds.
9. Not all offenders who are imprisoned for such offences are
“political prisoners”. The test is whether the detention would be
regarded as lawful under the European Convention on Human Rights
as interpreted by the European Court of Human Rights (“the Court”).
As a rule, “political” speech, even very critical of the State and the
powers in place, is protected by Article 10 – there is no “pressing
social need” in a “democratic society”, in the terms of Article
10, to suppress such speech.
Note But there are
cases in which political speech exceeds the limits set by the Convention,
for example when it incites violence, racism or xenophobia.
Note It
should be noted that, whenever the Court has found the repression
of such speech acceptable under the Convention, the penalties handed
down by the national courts were largely symbolic. As the Convention
must be interpreted coherently, without contradictions, a person
punished in accordance with Article 10, paragraph 2, of the Convention
cannot be seen as being held unlawfully under Article 5 and could
therefore not be considered as a political prisoner. But it is understood
that punishment for political speech that is in principle not protected
by Article 10 can still be a violation of the Convention (and thus
give rise to the prisoner in question being “political”) when the
punishment meted out is disproportionate, discriminatory or the
result of an unfair trial.
3.2 Other
political offences
10. These are offences where the
perpetrator acts with a political motive (and not one of personal
gain), and the offence does not only damage the interests of the
State, but also those of other individuals – for example, acts of
terrorism. Obviously, the State under whose jurisdictions such acts
were committed is not only entitled, but is even under a positive
obligation, to prosecute such offences. Consequently, persons who
are serving a sentence for such an offence or detained on remand
on suspicion of having committed such an offence are not political
prisoners. But the same exceptions as above can arise, where the
punishment meted out is disproportionate, discriminatory or the
result of an unfair trial.
3.3 Non-political
offences
11. Persons who are imprisoned
in connection with non-political offences (that is, all other offences
where neither the actus reus nor
the mens rea has a political
connotation) are, as a rule, not political prisoners. Again, there
are exceptions to this rule. A person convicted of a non-political
offence can be a political prisoner when there is a political motive
on the side of the authorities to imprison the person concerned.
This can become apparent when the sentence is totally out of proportion
to the offence and/or when the proceedings are clearly unfair.
3.4 Burden
of proof
12. The distribution of the burden
of proof is particularly important in such an area where much depends
on the “political” or other motivation of either the perpetrator
or the authorities. The agreed approach of the Council of Europe’s
independent experts was the following: it is in the first place
for those alleging that a specific person is a political prisoner
to present a
prima facie case.
This material is then submitted to the State concerned, which will
in turn have the opportunity to present evidence refuting the allegation.
As summed up by Stefan Trechsel:
Note
“unless the respondent State succeeds
in establishing that the person concerned is detained in full conformity
with ECHR requirements as interpreted by the European Court of Human
Rights, as far as the merits are concerned, that the requirements
of proportionality and non-discrimination have been respected and
that the deprivation of liberty is the result of fair proceedings,
the person concerned will have to be regarded as a political prisoner.”
13. Those mandated to establish the political character of a detention
can also apply,
mutatis mutandis,
the Court’s case law on factual inferences in cases in which the
respondent State fails to co-operate by making available documents
or other information that is in the exclusive possession of the
authorities.
Note
3.5 Summary
of the criteriaNote
14. “A person deprived of his or
her personal liberty is to be regarded as a 'political prisoner':
a if the detention has been imposed
in violation of one of the fundamental guarantees set out in the European
Convention on Human Rights and its Protocols (ECHR), in particular
freedom of thought, conscience and religion, freedom of expression
and information, freedom of assembly and association;
b if the detention has been imposed for purely political
reasons without connection to any offence;
c if, for political motives, the length of the detention
or its conditions are clearly out of proportion to the offence the
person has been found guilty of or is suspected of;
d if, for political motives, he or she is detained in a
discriminatory manner as compared to other persons; or,
e if the detention is the result of proceedings which were
clearly unfair and this appears to be connected with political motives
of the authorities.”
15. The allegation that a person is a “political prisoner” must
be supported by prima facie evidence;
it is then for the detaining State to prove that the detention is
in full conformity with requirements of the Convention as interpreted
by the European Court of Human Rights in so far as the merits are
concerned, that the requirements of proportionality and non-discrimination
have been respected and that the deprivation of liberty is the result
of fair proceedings.
16. A good look at the criteria shows that someone recognised
as a “political prisoner” is not necessarily “innocent”. The “political”
aspect of a case may reside, for example, in the selective application
of the law, or in disproportionately harsh punishment in comparison
with persons without a “political” background convicted of a similar
crime, or finally in unfair proceedings which may nevertheless have
resulted in the conviction of a guilty person. Recognition of a
prisoner as “political” does not therefore necessarily require his
or her immediate release – a new, fair trial may well be the most
appropriate remedy. This said, given the length of time many such
prisoners have already spent in prison, their urgent release, even
if they are actually “guilty” of the crimes they were accused of,
is now often the sole means to dispel the suspicion that the person
is being treated particularly harshly for “political” reasons.
3.6 General
acceptance of the independent experts’ criteria
17. The criteria summed up above
were provided to all concerned. As is stated in the Secretary General’s information
document on the results of the work of the independent experts,
“[n]o substantial objections were raised to these criteria”.
Note At
its 765th meeting on 21 September 2001,
Note the Deputies “welcomed
the Secretary General’s independent experts’ report on alleged political
prisoners and Armenia and Azerbaijan as it appears in document [SG/Inf(2001)34
and Addenda I and II] …” and adopted the following declaration on
this matter:
“The Committee of
Ministers of the Council of Europe welcomes the news that the President
of the Republic of Azerbaijan has issued on 17 August 2001 a decree
pardoning 89 political prisoners,
66 of whom have been released and 23 of whom have had their sentences
reduced …” (bold added to underline that the term “political prisoner”
was used by the Committee of Ministers itself).
18. Three years later, at the close of the independent experts’
second mandate, the Secretary General’s information document reiterates
that “[t]hese criteria were accepted by the Azerbaijani authorities
and all Council of Europe instances”.
Note The Parliamentary Assembly’s
subsequent resolutions were also based on the generally accepted
criteria developed by the independent experts.
Note
19. During my present rapporteur mandate, several attempts were
made at committee level to reopen the question of the definition
of political prisoners.
Note But I continue to hold
the view that any such attempt at “reinventing the wheel” would
merely deflect from the important task at hand of assisting Azerbaijan
in solving, at long last, its problem of political prisoners, as
highlighted in my draft report entitled “Follow-up on the issue of
political prisoners in Azerbaijan”.
Note
4 Conclusions
20. I am fully convinced that the
independent experts’ criteria, which have already been applied to
hundreds of cases, with the acceptance of all sides, have proved
to be legally sound, fair and operative. They are founded on and
reflect basic standards of the European Convention on Human Rights
and on the case law of the European Court of Human Rights. They
are also non-discriminatory; in particular, they are not country-specific, even
though they were developed and first applied in the context described
above of the accession of two new member States to the Council of
Europe. More recently, they were applied by the Committee on Legal
Affairs and Human Rights in its opinion on the situation in Belarus
adopted during the January 2012 part-session.
Note
21. Any definition includes elements which require an evaluation,
or an assessment, of facts and thereby some subjective elements.
Definitions and criteria are only tools, they must be applied by
human beings. If we were to demand a “definition” that could be
fed into a computer, which would automatically produce “objective” results
for each individual case, we would fundamentally misunderstand the
nature of the Assembly’s work.
22. It would be a grave mistake for the Assembly to renege on
the acquis of the existing
definition and to enter into an endless, theoretical general discussion.
This would clearly be a step backwards, which would raise suspicions,
however unjustified, about the real reasons for opening such a debate
which is potentially endless and most likely fruitless.
23. In this context, I would like to repeat, for the benefit in
particular of our Spanish and Turkish colleagues, that it is perfectly
clear that terrorists, whether they belong to ETA, to the PKK or
any other terrorist organisation, do not fall under the definition
of political prisoners, even if they claim that they have committed their
heinous crimes for “political” motives. However, persons accused
of terrorist crimes who were, for political motives – this time
on the side of the authorities – convicted on the basis of an unfair
trial using tainted evidence (such as “confessions” obtained under
torture, or witnesses acting under duress) may well be presumed “political”
prisoners if there are sufficient indications that such violations
have indeed taken place.
24. I therefore call on the Assembly to reaffirm the existing
definition of political prisoners as proposed in the draft resolution.
