Doc. 9652

10 January 2003

The problem of determination of universally admissible criteria for the concept of “political prisoner”

Motion for a recommendation

presented by Mr. Rafael Huseynov and others

Although imprisonments on political motives not rarely take place in different countries of the world as well as in France, and certain doctrinal and practice-oriented attempts have been made for distinguishing political prisoners from other convicts, so far no precise and indisputable definition of the concept of “political prisoners” has been elaborated, and no generally acceptable criteria have been defined in international documents. Moreover, no such definition can be found in the case law of the European Court of Human Rights. It is unfortunate that not all the five criteria introduced by the experts of the Council of Europe (lead by Mr S. Trechsel) for identifying “political prisoners” which seem to be relevant only vis-à-vis the specific country, might be considered as practically helpful and indisputable.

In the course of the ongoing discussions around the implementation of the absolutely fair thesis stating that “even one political prisoner in a Council of Europe country is too many” (Mr W. Schwimmer), there have been speculative attempts to use the term “political prisoner” with the purpose of veiling the serious criminal offences committed by former politicians. Since the limits between the concepts of politician-prisoner and political prisoner are not fixed, the number of persons presented by different human rights organisations as “political prisoners” may easily be increased or diminished on the basis of subjective considerations and political motives as well. It should be borne in mind that the concept of “political prisoner” must not impair the generally recognised principles of law and human rights, particularly the equality of everyone before the law and the court, res judicata and other fundamental rules.

Whereas the first part of “political prisoner” denotes the political nature of the concept, the second one contains its legal aspect. Therefore, in classifying the parameters of this concept, either purely legal or purely political approach, would yield no positive result, and the adequate criteria have to be searched on the borderline of both approaches.

The only way to put an end to the numerous controversies around the idea of “political prisoner” is to transpose it from political discussions into the legal framework, and to determine the universally accessible and legally binding criteria. The necessity of having accurately defined criteria for the said term is raised each time when relevant documents titled as “Political prisoners in Europe”, “Political prisoners in Ukraine” are tabled within the Council of Europe.

Having taken into consideration the above-said, the Assembly recommends:

- to hold a colloquium under the auspices of the Assembly, with participation of outstanding lawyers:

- to organise special discussions in the Political Affairs Committee and the Committee on Legal Affairs and Human Rights of the Assembly concerning the determination of clearly defined legal criteria for the term “political prisoner”;

- to fix those criteria in a special resolution to be adopted by the Assembly.

Signed : ¹

R. Huseynov, Azerbaijan, LDR

Akçali, Turkey, EDG

Andican,Turkey, EDG

Chaklein, Russia, UEL

Cilevičs, Latvia, SOC.

Fedorov, Russia, EDG

Hajiyeva, Azerbaijan, EPP

Khripel, Russia, SOC

Kroll, Poland, EPP

Kroupa, Czech Republic, EPP

Pasternak, Poland, EPP

Pourgourides, Cyprus, EPP

Shybko, Ukraine, SOC.

Škrabalo, Croatia, LDR

¹        SOC: Socialist Group

      EPP: Group of the European People’s Party

      EDG: European Democratic Group

      LDR : Liberal, Democratic and Reformers’ Group

      UEL: Group of the Unified European Left

      NR: not registered in a group