Political prisoners in Azerbaijan
26 January 2004
Political Affairs Committee
Rapporteur: Mr Hasan Muratovic, Bosnia and Herzegovina, Group of the European Peoples Party
1. The Political Affairs Committee welcomes the efforts undertaken by the members of the joint working group set up by the Committee on Legal Affairs and Human Rights and the Monitoring Committee in order to investigate the situation of political prisoners in Azerbaijan. The Committee also welcomes the work of the Group of Independent Experts set up by the Secretary General to investigate cases of alleged political prisoners in Armenia and Azerbaijan. The existence of political prisoners in a member state is a serious violation of human rights and thus incompatible with this states membership obligations in the Council of Europe.
2. The Political Affairs Committee recalls that all member states have committed themselves under the European Convention on Human Rights to guarantee the right of everybody to liberty and security (Article 5), the right to a fair trial (Article 6), the right to freedom of thought, conscience and religion (Article 9), the right to freedom of expression including the freedom to hold political opinions (Article 10) and the right to freedom of peaceful assembly and association (Article 11). Where individuals are imprisoned, detained or otherwise deprived of their personal liberty for political reasons, those human rights are at stake. All member states are held to respect those rights and allow for the political freedom necessary in a democratic society.
3. Azerbaijan joined the Council of Europe on 25 January 2001. The accession of Azerbaijan has been followed by Azerbaijans gradual undertaking of the commitments which form the acquis of the Council of Europe. This process of adhering to the major legal standards of the Council of Europe is paralleled by the Council of Europes ongoing programme of assistance and co-operation activities aimed at reforming the legal system of Azerbaijan as well as the justice system and the prisons. Three years of membership of Azerbaijan are hence an important but also a relatively short time compared to other member states.
4. The political situation in Azerbaijan is characterised by various negative external factors: large parts of Azerbaijan have been occupied for more than a decade following an armed conflict, with important numbers of military forces from Armenia and Russia stationed in those territories, a regime is in power in the Nagorno-Karabakh region which is not recognised by the Council of Europe, the European Union and nearly all states, a ceasefire line exists where soldiers are dying every month and roughly one million persons were displaced in Azerbaijan as a result of the fighting. In addition, the oil resources found in Azerbaijan make it extremely attractive to extend external spheres of influence into the country. In such a climate, a free and democratic political discourse might sometimes be compromised by political extremism. Nevertheless, individuals must never be imprisoned for political reasons.
5. The European Convention on Human Rights was signed by Azerbaijan upon accession to the Council of Europe and has been in force vis-à-vis the authorities of Azerbaijan since 15 April 2002. Violations of human rights which occurred before the entry into force of the European Convention on Human Rights cannot be brought before the European Court of Human Rights. This lacunae has been remedied under Opinion No. 222 (2000) with regard to political prisoners by including the obligation to re-try or release those individuals who are considered as political prisoners. Once a new re-trial is opened or conducted after entry into force of the European Convention on Human Rights, the guarantees of the Convention apply.
6. The report of the Committee on Legal Affairs and Human Rights recommends in various paragraphs that prisoners should be released by the authorities of Azerbaijan (§§ 7, 10, 14, 17 and 18 of the draft Resolution). Opinion No. 222 (2000) on Azerbaijans application for membership of the Council of Europe includes the commitment to release or to grant a new trial to alleged political prisoners. This distinction should, for example, be based on the definition of political prisoners used by the Group of Independent Experts: where the detention has been imposed in violation of the fundamental guarantees of political freedom or has been imposed for purely political reasons without connection to any offence, an immediate release is necessary; where, for political motives, the detention or its condition are clearly out of proportion to the offence which the person has been found guilty of or is suspected with, or the proceedings leading to the detention were clearly unfair, a new trial should be granted.
7. The Political Affairs Committee is of the opinion that this differentiated approach serves best the requirements of the rule of law and the fair administration of justice as well as the human rights at stake in case of political imprisonment. Where new re-trails are faced with criticism due to alleged legal or procedural flaws, an application could be made to the European Court of Human Rights. Under Opinion No. 222 (2000), Azerbaijan is obliged to release or retry cases of political prisoners. Both could also be combined, if political prisoners were released and were able to defend themselves in liberty in a fair re-trial. This could also be a significant political gesture showing that the President and Government of Azerbaijan intend to close this chapter of the past and move on to a new political climate. Therefore, the Committee suggests merging § 7 and § 18 of the draft Resolution by revising § 7 and deleting § 18.
8. The report of the Committee on Legal Affairs and Human Rights makes references to the factual and legal background established by the Group of Independent Experts of the Secretary General for a number of cases. In addition, the report and its appendix dwell on the lists of alleged political prisoners drawn up by the association HumanRightsCenter individually or in co-operation with other associations. It would prejudge the work of the Group of Independent Experts or even the European Court of Human Rights, if the Assembly considered as political prisoners and demanded the immediate release of all new cases of persons whose names are not included in the initial list of 716 presumed political prisoners as well as persons convicted after 1 January 2001 (§ 14 of the draft Resolution) as well as all prisoners whose trials were erroneous, prisoners having been political activists or eminent members of past governments (§ 17 of the draft Resolution). In addition, § 14 and 17 of the draft Resolution are so abstract in their formulation, that they cannot legally be fulfilled, because they do not specify or even identify the persons or group of persons in question. The Committee therefore suggests deleting § 14 and revising § 17 of the draft Resolution and believes that the findings of the Group of Independent Experts of the Secretary General would be helpful for the future Assembly work.
II. Amendments to the draft Resolution on behalf of the Political Affairs Committee
Merge § 7 and § 18 of the draft Resolution by revising § 7 as follows and deleting § 18:
All political prisoners whom the Group of Independent Experts of the Secretary General identifies as such should either be pardoned and released, or be able to defend themselves in liberty in a fair re-trial.
Exchange the term arranged with the term opened at the end of § 9 of the draft Resolution:
( ); in addition a new trial has been opened for two of the three symbolic prisoners.
Replace § 10 of the draft Resolution with the following paragraph:
The Assembly regrets the manner in which the re-trials of Mr Gumbatov and Mr Gaziyev were conducted and expresses doubts as to whether they complied with the Council of Europes standards and principles. Both, Mr Gumbatov and Mr Gaziyev, were considered as political prisoners by the Group of Independent Experts of the Secretary General in October 2001. The Assembly calls on the authorities of Azerbaijan to comply with the obligations of fair justice under the European Convention on Human Rights.
Delete § 14 of the draft Resolution.
Replace § 17 of the draft Resolution by the following paragraph:
The Assembly calls on the authorities of Azerbaijan to comply with Recommendation (98) 7 of the Committee of Ministers concerning the ethical and organisational aspects of healthcare in prisons and not to discriminate against alleged political prisoners. Alleged political prisoners whose state of health so requires should either be transferred to medical institutions or civil hospitals, or be pardoned for medical reasons.
Replace § 19.iii of the draft Resolution by the following new paragraph at the end of the draft Resolution:
The Assembly calls on all member states not to extradite persons accused of political offences as far as extradition requests can lawfully be rejected under the relevant Council of Europe treaties on extradition, legal co-operation in criminal matters and the suppression of terrorism.
Add the following new sub-paragraph to § 19 at the end:
to provide the Assembly with the results of the work of the Group of Independent Experts investigating cases of alleged political prisoners, in order to decide on future action in this field.
Reporting committee: Committee on Legal Affairs and Human Rights
Committee for Opinion: Political Affairs Committee
Reference to Committee: Referenc N° 2849 of 23 June 2003
Opinion approved by the committee on 26 January 2003
Secretaries to the committee: Mr Perin, Mrs Ruotanen, Mr Chevtchenko, Mr Dossow
 See Doc. 10026, presented by the Committee on Legal Affairs and Human Rights.