Europe of Human Rights

On 3 October 2012 the Parliamentary Assembly of the Council of Europe (PACE) adopted a resolution “The definition of political prisoner” by rapporteur Christoph Strässer. After much debate and controversy, PACE eventually confirmed the definitional criteria endorsed both by the rapporteur and NGOs, and developed by the independent experts in 2001 on account of Armenia’s and Azerbaijan’s accession to the Council of Europe. From a perspective, the nervousness surrounding the resolution becomes understandable. After all, there were really two resolutions at stake – the one concerning the definition and the other related exclusively to political prisoners in Azerbaijan tabled for vote in January 2013.

The rapporteur was originally mandated to report on two issues – political prisoners in Azerbaijan and the definition of political prisoner. The latter report was supposed to be delivered first. In October 2011 the mandates were merged and the name of the joint report was changed to “Revisiting the issue of political prisoners.” It was a compromise with the Azerbaijani delegation which, as the rapporteur notes in the draft resolution on Azerbaijani political prisoners, “objected to its country being singled out in the title of the report.” It almost looked like Baku’s efforts to neutralize the report on Azerbaijan’s political prisoners succeeded, but the Azerbaijani authorities took a step too far and denied Mr Strässer a visa which he needed to conduct a fact finding mission. Azerbaijan’s move backfired, the mandates were split again and, despite all the efforts, Azerbaijan’s name is now singled out again. On 3 October 2012 the first resolution on the definition of political prisoner was tabled for vote at the plenary session of PACE and, by a thin margin, passed.

But, if the resolution on the definition of political prisoner had failed, the second resolution on “The follow-up to the issue of political prisoners in Azerbaijan” could have been dismissed much easier. Naturally, it would have been hard for PACE to authoritatively talk about political prisoners anywhere, had it not agreed on who those prisoners were. And Azerbaijan would have had an advantage in the discussion on the second resolution. During the debate on the first resolution, some members of PACE referred to lobbying or, specifically, Azerbaijani lobbying to delay or prevent the establishment of a common definition of political prisoner. In verbatim record from the debate, Mr Marcenaro was noted to have said that “everyone had a duty to take a stand and to resist the lobbying which had affected this whole discussion,” Mr Rustamyan – “Azerbaijan was doing all it could to prevent the adoption of the definition of political prisoner, even though this was not directed against any one country,” and Ms Schuster from Germany – “lobbying in this case by Azerbaijan had been unmatched in its brazenness.”

 

In an atmosphere of political storm, on 3 October two amendments to the resolution on the definition of political prisoner were voted. According to Mr Herkel from Estonia, they had “the sole aim of destroying the report.”

Amendment 1 concerned factual observations and did not directly touch upon the essence of the resolution. Nevertheless, it implied certain conclusions about the definition, namely that it was outdated and, because of that, in need of reconsideration. The explanatory note to the amendment alleged that the resolution was “factually inaccurate”. Paradoxically, the amendment was guilty of the same charge when it read that “the criteria put forward by the…experts were based on specific circumstances of the civil war in Namibia in 1989.” The two sub-amendments proposed by the rapporteur salvaged the truth, as the criteria were based on a couple of sources, including ECtHR case law.

 

Amendment II, had it been passed, would have neutralized the whole resolution, as it proposed to replace the definition of political prisoner with a statement that “the interpretation and application of any criteria of a political prisoner is the exclusive competence of the European Court of Human Rights.” That would have stripped PACE of its statutory competence and limited the possibility of exerting political pressure on countries that fall out of line. While the task of ECtHR’s is to decide on violations of the Convention with an utmost consideration characteristic of judicial power, the duties and political nature of PACE should compel it to respond to pressing problems at hand, such as the issue of political prisoners.

 

The position presented in the explanatory note to that amendment that “only the current case law of the European Court of Human Rights should be considered as the ‘gold standard’” is difficult to support also because there is no ECtHR case law on the issue of political prisoners. In practice, ECtHR does not have the means to interpret and apply the definition and instead would most probably use article 18 of ECHR. What is more, it would have taken years for ECtHR to establish its own criteria, the years that political prisoners do not have.

The third objection against the resolution, which was not turned into an amendment, was that the proposed criteria would be abused by terrorists from such organizations as ETA, IRA or PKK. The resolution itself satisfyingly answers that charge in paragraph 4. Yet another answer was provided during the debate in PACE by Mr Michel who remarked that “[i]n democracies people would not be able to oppose the state through criminal acts and expect to get away with that by availing themselves of the label ‘political prisoner’.” As long as the state complies with its laws and ECHR, it has nothing to fear. Terrorist charges cannot be used as an excuse to lift human rights protections.

 

The attempt to transfer competences from PACE onto ECtHR and the argument “from terrorism,” both used as an excuse to discard the definition, provoke questions as to the future of PACE. Will it carry out its responsibilities of standing firm for human rights? Or, will it evade responsibility and stoop to the pressure of countries, such as Azerbaijan? So far, the Azerbaijani efforts failed, but soon PACE will have the chance to vote on another resolution devoted solely to political prisoners in Azerbaijan. Will it be a litmus test for PACE? Well, it will surely be a chance for PACE to show its true colours and for its members to declare allegiances. And maybe the debate on that resolution will be different. After all, it is not about abstract definitions anymore, but about particular people and their stories.

Joanna Smętek, “Europe of Human Rights”

 

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