AA12CR33ADD1

AS (2012) CR 33
Addendum 1

 

Provisional edition

2012 ORDINARY SESSION

________________________

(Fourth part)

REPORT

Thirty-third sitting

Wednesday 3 October 2012 at 3.30 p.m.

ADDENDUM 1

The definition of political prisoner

      The following texts were submitted for inclusion in the official report by members who were present in the Chamber but were prevented by lack of time from delivering them.

Mr ZOURABIAN (Armenia) — I call on all the members of the Parliamentary Assembly to adopt a resolution on a definition of political prisoners as soon as possible, without going into lengthy debates on the nuances of such a definition. The Council of Europe and its Parliamentary Assembly should gain a powerful instrument to be able to defend basic democratic freedoms and those who bravely sacrifice their personal security and liberty for the purpose of making their countries free. So far, the record of PACE in defending those who are persecuted by authoritarian governments for asserting their rights of free speech, association and assembly, has not been such as to give rise to consolation.

I can say this on behalf of the Armenian National Congress, a democratic movement, which has been the main target of oppression by the Armenian ruling authoritarian regime in the last five years. Since the 2008 presidential elections, 150 political prisoners were held in Armenia for years just for trying to assert the rights you all freely enjoy in your democratic countries. Four MPs were deprived of their immunity, and three of them served long sentences. The resolutions of PACE never called them “political prisoners” and never demanded their release in an unequivocal and vigorous manner. They were released only in May last year after the Armenian National Congress mobilised huge rallies against the government and made it start a dialogue on democratic transition in the country.

The dialogue did not last for long. On 9 August 2011, the police assaulted the young activists of the Armenian National Congress, beat them and charged them with resistance to the police and hooliganism. This resulted in the suspension of the long-awaited dialogue. On 20 July this year, the court finally issued a verdict giving a six-year sentence to Tigran Araqelian, who is already in prison, and two to three years to Artak Karapetian, Sargis Gevorgian and David Qiramijan. We already have one political prisoner. When this decision enters in force, we will have four political prisoners, and in addition to that let me inform you that another MP was deprived of immunity in yesterday’s session of the Armenian parliament on politically motivated charges. All this shows that Armenia is again back to the reality we had just overcome last year.

I know these four young activists pretty well. They are intelligent, principled and passionate advocates for democracy and civil liberties. On numerous occasions they have suffered imprisonment, police beating and torture, but they continue to fight for the freedom of their country. We should support them. Through adopting this resolution we need to send a clear-cut message to the remaining authoritarian regimes in Europe that they cannot act with impunity, and another message to all the fighters for democracy, that they are not alone.

Mr GAUDI NAGY (Hungary) — As a lawyer who was involved in cases of political prisoners I was really keen to read the final version of the report of Mr Strässer. I strongly hoped that after many years of uncertainty, with this report finally we would have a clear and applicable definition for political prisoners according to clear and consequent legal criteria. It was not an advantageous start that he wanted to bring the report of the definition of political prisoners before the Assembly jointly with the report of the political prisoners of a member state. It was a good decision of the Legal Affairs and Human Rights Committee to hinder that. Now we shall make decisions about the legal criteria of political prisoners, and only after this resolution will anyone be in a position to apply these standards to any member countries.

Our common aim is to combat any form of politically motivated criminal process, against political “enemies”. From the definition it is not clear whether the five conditions are conjunctive or not. The criteria in point (b) is not applicable and utopian because there is no state which imposes detention without connection to any offence. The Assembly is deeply divided: that is why we should find the best criteria that could serve our common goal with the greatest efficiency.

Amnesty International’s former terms seemed to be more precise:

• a person accused or convicted of an ordinary crime carried out for political motives, such as murder or robbery carried out to support the objectives of an opposition group;

• a person accused or convicted of an ordinary crime committed in a political context, such as at a demonstration by a trade union or a peasants’ organisation;

• a member or suspected member of an armed opposition group who has been charged with treason or “subversion”.

Let us not forget about the fact that politically motivated criminal processes are not exclusively initiated by countries of the third world or the outer regions but this kind of process can be identified in western and middle European countries as well. Governments often say they have no political prisoners, only prisoners held under the normal criminal law. Notwithstanding that, such proceedings are still happening and from time to time new ones are initiated.

Let me refer to a dangerous phenomenon, which is the criminalisation of patriotic movements all around Europe thus hindering them from acting freely to preserve the values of traditional communities. Many of these activists are often prosecuted and sentenced for normal criminal offences, hiding the fact that the motivation is clearly political. I fully agree with the conclusions of the report: persons accused of terrorist crimes who were for political motives convicted on the basis of an unfair trial using tainted evidence – 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.

This is anyhow in contradiction with paragraph 4 of the draft resolution, where deprivation of personal liberty for terrorist crimes generally shall not be considered as political imprisonment. I think this exclusion clause will serve as an excellent base for states to continue the practice of politically motivated criminal processes. That is why I shall not support the adoption of this escape route. Let me remind you that there are more and more countries that try to tighten the control of the state over the private lives of people. For example, in Hungary since 2010 people presumed to be linked to terrorist organisations can be totally observed without previous judicial permission.

It is a typical symptom as well that states are inclined to enact special laws in order to be able to criminalise such activists, thus improving the effectiveness of the criminal jurisdiction used against patriotic movements. The Garda case is a good example of the illegal dissolution of a patriot assembly, and the case is now before the European Court of Human Rights. Budaházy György, a Hungarian patriot and opposition leader, was prosecuted at least 15 times by different legal titles for political reasons. In most of the processes he was acquitted, but the authorities consequently try to apply always stronger legal tools: they started with misdemeanour processes and year by year, step by step, harder criminal offences were cited against him. Now he and a group of activists are charged with terrorism. The process has lasted for four years; the end of the process is far. He is still prohibited from leaving his home after two and a half years of detention and almost one-year-long house custody.

Recently the European Court of Human Rights obliged the Hungarian Government to pay compensation because of his two and a half year-long illegal detention. He was lately acquitted in another long criminal process of the serious charge of threatening state order by simply publishing his political ideas.

There are double standards in the report: political speech, even very critical speech, is protected by Article 10 of the Convention, but “there are cases in which political speeches exceed the limit set by the Convention, when incites violence, racism or xenophobia”. There are many cases when states charge political activists of exceeding the limit of the freedom of expression on an arbitrary basis, which is definitely politically motivated, in order to stop criticism of the new world order that tries to break down the traditional national communities of Europe.

Finally, let me refer to impunity for people who have breached the human rights of victims and undermined the belief of the people in the rule of law in the state. In Hungary some former leading communists – for example, Biszku Bela who took part in the bloody revenge after the crackdown of the 1956 revolution – enjoys a peaceful life without any legal consequences. However, he could be charged with committing crimes against humanity. We still have to wait for the prosecution of the police officers and politicians who were responsible for the bloody police actions against peaceful civilians in autumn 2006 notwithstanding the fact that a great number of reports, evidence and judicial decisions are at the disposal of the public prosecutors office. Thus it is really important to urge member states to validate the rule of law standards that require punishment for the crimes committed by the representatives of the state.

Mr BIEDROŃ (Poland) — First of all let me commend the important work done by the rapporteur, Mr Strässer, and the Committee on Legal Affairs and Human Rights.

Upon accession, Azerbaijan committed itself to upholding human rights, democratic development and the rule of law. Today, 11 years after joining the Council of Europe, some of the initial obligations remain unimplemented and the process of implementing others appears superficial. The majority of European governments, praising energy co-operation or, as the report from the European Stability Initiative suggests, other more quantifiable remuneration, have been increasingly avoiding public statements or even, in a few cases, have been visibly supporting the Azerbaijani government. Over the years, critical voices within the Council of Europe have been drowned out and there has been a gradual polarisation of opinions.

We need to remember that the criteria comprising the definition of political prisoner were accepted by both Armenia ad Azerbaijan, and by all instances of the Council of Europe. We have all accepted them. As the rapporteur states in the explanatory memorandum to the resolution, since their establishment, the criteria have proved “legally sound, fair and operative.” The rapporteur wrote that “it would be a grave mistake to enter into an endless, theoretical general discussion” about the definition of political prisoner. I agree with him.

This view is also shared by international NGOs. We have all received today the letter from Human Rights Watch and Amnesty International in this regard. We should all read it. So, instead of “reinventing the wheel”, to use the rapporteur’s phrase, or fixing something that is not broken, let us concentrate on solving Azerbaijan’s systemic problem of employing the criminal justice system to political ends. I urge the Assembly to reaffirm the current definition by supporting the draft resolution. The European Court of Human Rights alone will not solve the problem in this matter simply because it does not have the mandate to do so. We have it.

Today, 11 years later, Azerbaijan still provides the context for the discussion of political prisoners, people like Tural Abbasli, Shahin Hasanli and Nemat Panahly. This is just the tip of the iceberg, only three names out of the whole list of political prisoners included in the rapporteur’s report “Follow-up to the issue of political prisoners in Azerbaijan”.

Let me point out something fundamental for this discussion. Mr Abbasli and eight more political prisoners were released from prison only four days before the discussion of the resolutions concerning Azerbaijan in the Committee on Legal Affairs and Human Rights. This proves that our actions have an impact. Many more political prisoners in Azerbaijan, such as the recently arrested journalist Mr Hilal Mammadov or the activist Ilham Amiraslanov, and political prisoners from other countries – await those actions. The time is now. We have a good definition; now we need goodwill to solve the problems of the political prisoners.

Mr KÜRKÇÜ (Turkey) — First of all I regret to express that I am irritated by the fierceness of the reactions coming from the defenders of the resolution towards those who question their validity and relevance. I doubt these reactions are simply based on extreme concern about the urgency of arriving at a definition of a “political prisoner” and bringing those “political prisoners” under the protection – at least morally — of the Council of Europe.

If that were the case, we should have heard even a single concern in relation to Article 4 of the draft resolution which excludes “Those deprived of their personal liberty for terrorist crimes shall not be considered political prisoners if they have been prosecuted and sentenced for such crimes according to national legislation and the European Convention on Human Rights (ETS No. 5)” from the definition. But we have not.

Thus it is hard to believe that those who will vote for the proposed resolution will be bringing additional protection to “political prisoners” of Turkey, almost 99% of whom are jailed under charges of “terrorism.” Who can show a human rights-based reason why the Assembly should refuse protection for the dissidents who arbitrarily and unlawfully are charged with “terrorism” in violation of a just trial?

According to official data, there are currently at least 9 000 “terrorists” in Turkish prisons. They are there “according to national legislation”. Almost 90% of them are arrested, in the absence of evidence implicating their involvement in violent actions. In their homes and offices no weapons or similar objects are seized. They are trade union leaders, elected mayors, city council members, municipal council members, workers, teachers, nurses, housewives, students, farmers, journalists and workers and former and present deputies. According to the resolution and the report these people will be considered as political prisoners only under this condition: “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.”

This, given the long and painful operation of the Turkish judicial mechanism simply means these people could have been called only “former political prisoners” if their status was redefined by the European Court of Human Rights for they would have completed their sentences when their case would have been decided by the European Court of Human Rights.

I see no reason why a resolution, practically rewarding unlawful charges of a government which exploits the loopholes in national legislation, would deserve my support. Why should I support this resolution while the workers of my election campaign are now in jail under irrelevant charges of “terrorism”, but they are simply neglected by this resolution for “they have been prosecuted according to national legislation”? Those defenders of the resolution have no response to this question.