The Issue Of Political Prisoners In Azerbaijan Unresolved

THE ISSUE OF POLITICAL PRISONERS IN AZERBAIJAN UNRESOLVED

Posted on: 09-01-2013

Translated from French by Google

Info Collectif VAN – – Collectif VAN present this
paper on the issue of political prisoners in Azerbaijan published on
the website of the Parliamentary Assembly of the Council of Europe
on 14 December 2012.

Copyright: Council of Europe

Parliamentary Assembly of the Council of Europe

Doc. 13079

December 14, 2012

Monitoring the issue of political prisoners in Azerbaijan

Report1

Committee on Legal Affairs and Human Rights Mr. Christoph STRĂ„SSER
Germany Socialist Group

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Summary

The issue of political prisoners is still not settled in Azerbaijan,
despite the ongoing efforts of the Parliamentary Assembly. In addition
to several unsolved cases dating from the accession of Azerbaijan to
the Council of Europe, several new cases of political prisoners have
appeared concerning politicians and activists linked to the opposition,
as well as journalists, of bloggers and peaceful protesters sentenced
to long prison terms.

In many cases, humanitarian reasons, including age of some prisoners
and the deterioration of their health, require their immediate release,
regardless of any other criteria.

In a number of these cases, the European Court of Human Rights has
found a violation of the European Convention on Human Rights. Cases
of alleged political prisoners are still pending before that court,
while other prisoners were encouraged to abstain before the Court in
due course against the promise of an amnesty that did not materialize
by thereafter.

The Azerbaijani authorities are invited, on the one hand, to find a
rapid solution to the cases of persons who are on the checklist of
alleged political prisoners are still in prison and without requiring
in return for their release they admit their guilt or repent publicly
and, secondly, to take the necessary measures to ensure that no new
cases of alleged political prisoners appeared, including failing
to adopt the participants in peaceful demonstrations and pursue
against them by failing to criminalize the expression of political
views and religious media, putting an end to torture and other forms
of ill-treatment of suspects in custody order and remand, allowing
suspects to be assisted by counsel of his choice and ensuring that
any search and seizure is conducted in the presence of witnesses
truly independent.

A. Draft resolution2

1. The Parliamentary Assembly recalls that the definition of
“political prisoner” was developed in 2001 by the Council of Europe
by the independent experts of the Secretary-General, whose mission
was to assess cases of alleged political prisoners in Armenia and
Azerbaijan in the framework of the accession of these two countries
to the Organization.

2. It notes with satisfaction that the general criteria by independent
experts at the time were approved by all stakeholders, including the
Committee of Ministers of the Council of Europe, the Parliamentary
Assembly and the Armenian authorities and Azerbaijan. The Assembly
reaffirms its adherence to these criteria.

3. The Assembly notes that the issue of political prisoners is
still not settled in Azerbaijan, despite the ongoing efforts of the
Assembly, which adopted Resolutions 1359 (2004) and 1457 (2005) and
Recommendation 1711 (2005), specially devoted to this subject. It
fully endorses the findings and recommendations of the Commissioner
for Human Rights of the Council of Europe following his visits to
Azerbaijan in March 2010 and September 2011.

4. This also applies to a number of people on the second list of 107
political prisoners, called “forgotten”, whose fate was known after
the publication of the final report of the independent experts.

5. In addition, several new cases have emerged since the completion
of independent experts concerning politicians and activists linked
to the opposition, as well as journalists, bloggers and peaceful
protesters sentenced to heavy prison sentences.

6. In a number of cases, these prisoners have already spent so much
time in prison they should be free not to be discriminated against
vis-Ă -vis other prisoners convicted of similar offenses, even if the
verdicts pronounced against them following the controversial trial
were based.

7. In many cases, humanitarian reasons, including age of some prisoners
and the deterioration of their health, require their immediate release,
regardless of any other criteria.

8. The Assembly is aware that every prisoner may, in principle,
bring an application before the European Court of Human Rights when
it considers that the case meets the criteria for the definition of
political prisoners.

9. The Assembly notes that, in a number of these cases, the European
Court of Human Rights has found a violation of the European Convention
on Human Rights (ETS No. 5). Cases of alleged political prisoners
are still pending before that court, while other prisoners were still
encouraged to abstain before the Court in due time against the promise
of an amnesty that did not materialize thereafter.

10. The Assembly recognizes that it is not competent to decide on the
merits of individual cases of alleged violations of human rights. But
she believes have the duty to investigate allegations of systemic
problems in the protection of human rights in all member states, as
well as analyze and assess, in terms of legal and political any case
or group of cases may clarify the types of violation of human rights
which need to be addressed by appropriate policy and legal measures.

11. The Assembly notes that several people who were on the checklist
of alleged political prisoners or earlier versions of such lists have
been released for various reasons, for example because they have
received a presidential pardon for reasons health or simply after
serving their sentence.

12. In view of the foregoing, the Assembly urges the Azerbaijani
authorities:

12.1. to find a rapid solution to the cases of persons who are on
the checklist and are still imprisoned without charge in return they
admit their guilt and repent publicly:

12.1.1. releasing immediately, pursuant to the provisions of the
Criminal Code relating to parole, the presumed political prisoners
who have already served several years of their sentence;

12.1.2. releasing or retrying presumed political prisoners who were
sentenced in violation of the right to a fair trial;

12.1.3. releasing all compassionate presumed political prisoners who
are seriously ill;

12.1.4. releasing or retrying presumed political prisoners who were
involved in political events and to a lesser degree very minor,
given that the alleged instigators of these events were themselves
already pardoned;

12.1.5. by releasing presumed political prisoners who have no
connection with the events in question as being relative, friend or
acquaintance of prominent members of previous governments;

12.2. to take the necessary measures to ensure that no new cases of
a political prisoner, considered as such under the above criteria,
appears, including:

12.2.1. by failing to stop participating in peaceful demonstrations
and to prosecute against them;

12.2.2. by failing to criminalize the expression of political views and
religious media, including on the Internet, however, that it is hate
speech and incitement to violence continue to be prosecuted accordance
with the jurisprudence of the European Court of Human Rights;

12.2.3. putting an end to torture and other forms of ill-treatment
of suspects in police custody and pre-trial detention;

12.2.4. allowing suspects to be assisted by counsel of his choice;

12.2.5. ensuring that any search and seizure is conducted in the
presence of witnesses truly independent.

B. Explanatory memorandum by Mr Strässer, rapporteur

1. Introduction

1.1. The current status of the procedure and geographical scope
of report

1. This report was initially consider the two terms for which I
was appointed rapporteur, respectively on March 24 and 16 December
2009, on:

– “Monitoring the issue of political prisoners in Azerbaijan”

– “The definition of political prisoners.”

2. The two terms have been grouped rapporteur on the decision of
the Committee on Legal Affairs and Human Rights at its meeting on 24
June 2010. During the same meeting, on the basis of an introductory
note that I présentée3 and an expert hearing, the Committee endorsed
the proposed criteria for the definition of political prisoners and
allowed me to make a study visit to Baku. At its meeting on 5 October
2011, the Committee was renamed the Joint Report “Review the issue
of political prisoners” on a proposal from the President, through a
compromise with the Azerbaijani delegation, which objected to its
countries be designated separately in the title of the report and
refused to allow me to make a study visit.

3. At the meeting of 8 March 2011, the Azerbaijani delegation tried
to reverse the decision of 24 June 2010 and split the dual mandate,
restoring the initial two distinct mandates, this proposal was
rejected by the commission. I tried several times, unsuccessfully,
to obtain the cooperation of the Azerbaijani authorities to organize
my study visit. In August 2011, my visa application was officially
rejetée4. Two other attempts to organize a visit in November 2011 and
late January 2012 also failed, despite several interventions by the
Presidents of the Commission, Mr. Pourgourides and Mr Chope. After
setting a deadline of March 12, 2012 invitation by the President at
the meeting in January 2012, the Committee was informed at its meeting
of March 12, 2012 a date of visit was scheduled for the first week
of May 2012. Unfortunately, a week before the visit agreed during
the part-session in April 2012, the Azerbaijani delegation submitted
the grant of my visa to a new condition: I had to agree to consider
only the theoretical definition of political prisoners not suspected
of Azerbaijani Political Prisoners. I made a point to emphasize to
perform a study visit based on the dual mandate that was entrusted
to me. I did not finally get a visa and visit already scheduled for
next week has been canceled. The Committee, at its meeting of April
24, 2012, has authorized me to present my report without making the
usual study visit.

4. At its meeting of 21 May 2012, the committee finally decided to
split my dual mandate and asked to submit two separate reports, one
on the definition of politiques5 prisoners and the other suspected
political prisoners. As explained by the Secretary General of the
Parliamentary Assembly during the same meeting, the decision restores
the situation that existed before the merger of the two proposals on
24 June 2010. As a result, changing the title to which he had been
made in October 2011 is no longer valid.

5. Regarding the geographical scope of this report, the first of two
proposals on which it rests is expressly limited to Azerbaijan. The
second regards the definition of political prisoners, is not a
specific country. The decision to combine these two proposals in one
report, taken in June 2010, resulted in no change in the geographical
context. Having renamed in October 2011 over the future (new title:
“Review the issue of political prisoners”) allowed me to extend the
geographical scope of my mandate as possible, in accordance with
the explanation given by the Chairman of the Committee of Legal
Affairs and Human Rights, which had proposed the new title. But
considering the cancellation, May 21, 2012, the decision to merge the
two reports, there is more reason to change the title of the report,
or to potentially extend the geographical scope.

6. By way of introduction, I will give an overview of the long
and painful history of the issue of political prisoners in Armenia
and Azerbaijan (Section 1.2 below) and I remember the views that I
have defended, and the Committee on Legal Affairs and Human Rights
has endorsed at its meeting on 24 June 2010, about the division of
tasks between the Assembly and the European Court of Human Rights
(“the Court”) ( Section 1.3 below). I mention in the first major
section of this report (Section 2 below), the current definition,
fully recognized, political prisoners, in principle, applicable to
all Member States of the Council of Europe, as reaffirmed by the
Committee on Legal Affairs and Human Rights at its meeting on 24
June 2010. The second major part (chapter 3 below) will consist of
an application of these criteria to a number of cases and classes of
cases of alleged political prisoners in Azerbaijan.

1.2. The historical context of the issue of political prisoners in
the Council of Europe: the accession of Armenia and Azerbaijan

7. The issue of political prisoners in the Council of Europe back to
the negotiations on the accession of Azerbaijan to the United Nations.

Azerbaijan was especially committed “to release or retry those
prisoners who are considered” political prisoners “by organizations to
protect human rights” 6. In November 2000, the Committee of Ministers
adopted Resolutions Res (2000) 13 and Res (2000) 14, which invited
simultaneously Armenia and Azerbaijan to become members of the Council
of Europe, which status should be confirmed Once fixed the date of
accession. To allow some states to overcome their reluctance towards
these two memberships at the time, a compromise was reached in the
Committee of Ministers, under which it was also decided in November
2000 that the Committee of Ministers ensure regular monitoring of the
democratic development of the two countries. Armenia and Azerbaijan
adhered to the Council of Europe on 25 January 2001. The Committee of
Ministers then approved on 31 January 2001, the initiative taken by the
Secretary-General to appoint three prominent “independent experts” 7 to
examine the lists of cases of alleged political prisoners established
by non-governmental organizations (NGOs) Armenian and Azerbaijani
human rights Rights8. Before the review, the independent experts had
undertaken to determine, almost acting as judges, which people could
“be considered political prisoners on the basis of objective criteria,
in the light of the jurisprudence of the European Court of Human rights
and standards of the Council of Europe “9. They then proceeded to
the examination of 716 cases on the list to define, based on a series
of predetermined criteria and accepted by all relevant bodies of the
Council of Europe and the Azerbaijani authorities, if the detainees
in question were indeed “political” prisoners 10. The Committee of
Ministers has also created a panel chaired by the Italian Ambassador
at the time Mr. Ago (“the Group Ago”) to monitor the implementation of
this commitment. Unfortunately, 716 cases have not all been resolved
in a timely manner. Twenty-three cases of the initial list, which had
716, were given priority by experts as “test cases”. In April 2003,
a good portion of the 716 cases had been resolved and the list reduced
to 212 cases, which have been the subject of a second term experts. In
July 2004, the experts submitted their final report to the Secretary
General. Besides the 20 opinion about the business drivers, they made
104 Reviews relating to 212 cases that had been transmitted. They thus
concluded that 62 detainees had the quality of political prisoners,
which was not the case and more than 62 others.

8. An additional list of 88 new cases of alleged political prisoners
was then established by NGOs. It contains the names of persons arrested
or convicted before January 1, 2001 and who were erroneously omitted
from the initial list of 716 presumed political prisoners or have
been arrested or convicted between 1 January 2001 and 14 April 2002
date of entry into force of the European Convention on Human Rights
(ETS No. 5, “the Convention”) in Azerbaijan. Only the Parliamentary
Assembly has made an assessment of this list, which is annexed to its
report of January 2004 (Doc. 10026). In its Resolution 1359 (2004)
on political prisoners in Azerbaijan, the Assembly had unsuccessfully
invited the Secretary General at the time, Mr. Walter Schwimmer, to
extend the work of independent experts by assigning a third term for
this list additional. The Assembly made another list of 107 new cases
in its report on “Monitoring of Resolution 1359 (2004) on political
prisoners in Azerbaijan” 11, which led to the adoption of Resolution
1457 (2005) and Recommendation 1711 (2005).

9. Since the accession of Azerbaijan in 2001, the Parliamentary
Assembly has examined four times the issue of political prisoners in
Azerbaijan in January 2002, June 2003, January 2004 and June 200512.

In the last resolution on this subject, Resolution 1457 (2005),
the Assembly

“Strongly reaffirmed its position of principle that prisoners who
were recognized as political prisoners must be released. She asks the
Azerbaijani authorities to find a speedy and final issue of political
prisoners and presumed political prisoners:

i. by releasing the three remaining political prisoners, as recognized
by independent experts, or by opening the opportunity to see their
business effectively considered by the European Court of Human Rights,
at a retrial or appeal, as proposed the Azerbaijani authorities;

ii. releasing immediately, pursuant to the provisions of the Criminal
Code relating to parole, the presumed political prisoners who have
already served several years of their sentence;

iii. releasing or retrying presumed political prisoners whose judgments
are contrary to the principles of the right to a fair trial;

iv. releasing, for humanitarian reasons, the presumed political
prisoners who are seriously ill;

v. releasing or retrying presumed political prisoners who were involved
in political events and to a lesser degree very minor, knowing that
the suspected instigators were themselves already pardoned;

vi. by releasing presumed political prisoners who have no connection
with the events in question as being relative, friend or acquaintance
of the leading members of former governments;

and welcomes the commitment of the Azerbaijani authorities to use all
possible legal procedures (amnesty retrial court of higher instance,
parole, release for health reasons, thanks) to solve this problem. ”

10. Despite some progress made as a result of various resolutions
adopted by the Assemblée13, this issue is still not resolved, as
recalled in the following terms the authors of one of the proposals
on which this report is based:

“No action was unfortunately the recommendations of the Assembly. We
recorded no result and the action group was much less active since the
adoption of Resolution 1545 (2007). He has had two meetings. No decree
of grace has been taken since March 2007 despite promises to do so.

At the same time, the list of alleged political prisoners continues
to grow. Some journalists who were sentenced for defamation were
declared prisoners of conscience by Amnesty International. In total,
the list of the Federation of Azerbaijani organizations defending human
rights includes 72 political prisoners, nine political prisoners and
10 probable ex-political prisoners’. Some of them were arrested for
the second time. Mrs. Faina Kungurova, former political prisoner,
died in prison (18 November 2007) in unclear circumstances “14.

11. In June 2010, the Assembly debated a report on the functioning of
democratic institutions in Azerbaijan, in his chapter on human rights
and fundamental freedoms, highlights a number of cases of journalists
and imprisoned activists, which should settle urgence15. Following the
co-rapporteurs visit Azerbaijan 31 January to 2 February 2012, the
Committee on the Honouring of Obligations and Commitments by Member
States of the Council of Europe (Monitoring Committee) considered a
briefing note of these last, dated 25 April 2012, which evokes once
more cases of opposition activists and journalists detained, as well
as the need for the Committee on Legal Affairs and Human Rights to
clarify the concept of prisoner politique16.

12. The Commissioner for Human Rights of the time, Thomas Hammarberg,
published in March 2010 and September 2011 two reports in which
he denounced the use of counts fabrications to stop and silence
candidates parliamentary elections, journalists and members of
groups jeunesse17. In light of my findings, I fully agree with how
the findings of the Commissioner and recommandations18 summarize the
identified problems.

13. On 17 December 2009, the European Parliament stated that
“concern about the deterioration of media freedom in Azerbaijan,
[he deplored] practices of arrest, prosecution and conviction of
opposition journalists accused of various crimes” and urged the
Azerbaijani authorities “to immediately release jailed journalists.” On
24 May 2012, the European Parliament adopted another résolution19 who
strongly criticized the recent arrests of journalists and activists
in Azerbaijan and calls that “persons detained for political reasons”
are released.

14. Among the cases occurred recently and deserve, in my opinion,
to be urgently addressed include those young journalists of the
Internet (“bloggers”) and youth activists who were sentenced to
heavy prison sentences for “hooliganism” after themselves victims
without provocation, aggression forces sécurité20. In November 2011,
Amnesty International issued an urgent appeal for the release of 17
“prisoners of conscience” 21. Recent cases reflect the persistence of
Azerbaijan structural problem in the use of imprisonment to silence
any opposition.

15. Many of the “old cases” eventually become urgent humanitarian
issues given the time that the parties have already spent in prison
and given their age and poor health. It is unfair to keep people in
prison at the time the alleged offenses were committed, which were
extremely young and single accessory could complicity in the worst
case be charged, while the quality of political prisoners has been
recognized the instigators and organizers, who have been released
long ago. It is equally unfair to hold detainees in prison after
the expiry of the mandate of independent experts who could not be
taken into account in the work of these for that reason alone. They
continue to serve a sentence for having participated in the commission
of offenses whose instigators and organizers, again, were released long
after the quality of their political prisoners had been recognized.

1.3. Division of tasks between the European Court of Human Rights
and the Parliamentary Assembly

16. The criteria for the definition of “political prisoners”
frequently refer to the European Convention on Human Rights. Is
considered a political prisoner detained person in violation of the
Convention (and in particular Articles 5, 6 and 10). It goes without
saying that the authentic interpretation of the Convention is the
sole jurisdiction of the European Court of Human Rights. Since the
entry into force of the Convention in Azerbaijan, the Court is also
competent to examine individual applications submitted by persons
who consider themselves victims of a violation of their rights
under the Convention. Recall in this regard that on 22 April 2010,
the Court concluded that Mr. Fatullayev, imprisoned in April 2007
after writing a series of articles critical of the government, had
been wrongly imprisoned and requested his release immédiate22. But
the fact that a number of cases of alleged political prisoners are
still pending before the national courts or the European Court
of Human Rights does not in principle prohibit the Assembly to
proceed with the evaluation policy a possible systemic problem:
the frequent imprisonment of political opponents and independent
journalists, either due to lack of compliance with the relevant legal
standards of the Council of Europe, is an application incompatible
with the provisions of these standards in question. According to a
well-established within the Assembly23, reporters are free to discuss
individual cases to identify and illustrate possible structural
violations, and to comment on these matters, in order to propose
possible solutions. Of course, the Assembly has no intention when
wearing a political assessment of these cases on the basis of the
Convention, to interfere in the independence of the Court, it has
consistently asserted and defended. As the Court is currently flooded
with requests individual countries problems caused by “systemic”,
the Assembly can do useful work in addressing such problems based
on carefully documented examples and proposing solutions to national
authorities may dry up the source of this massive influx queries.

2. The notion of “political prisoner” according to the definition
used by the independent experts of the Council of Europe

17. Judge Stefan Trechsel presented the conclusions reached by his
colleagues and himself on the definition and criteria of the notion of
“political prisoner” at the hearing of the Committee on Legal Affairs
and Human Rights, the June 24, 2010 at Strasbourg24. Independent
experts have based their work on those of Professor Carl Aage Nørgaard,
who was then President of the European Commission of Human Rights and
was invited by the Security Council of the United Nations to define
the quality of prisoner “policy” Namibia in 1989 and 1990.

The teacher’s aide Nørgaard, Andrew Grotrian, is also among the
experts heard at the hearing on 24 June. The third expert present
during the hearing was Javier GĂłmez BermĂşdez, Judge President of the
Criminal Chamber of the Audiencia Nacional (Spain). Following these
discussions with experts, the Committee endorsed the conclusions of
my note introductive25et invited me to continue my work on the basis
of these objective criteria.

18. During these discussions, the experts agreed that those convicted
of violent crimes, such as terrorism, could not claim the status of
“political prisoners”, even though they claimed to have acted for
“political” reasons. GĂłmez BermĂşdez said that this principle was
applicable to democratic states run by legitimate governments, where
there can be no question of “legitimate resistance”, as was the case
for the “Resistance” French during World War II. This argument is
supported by Article 17 of the European Convention on Human Rights,
entitled “Prohibition of abuse of rights” 26.

19. RĂ©sumer27 to, the following framework has been established by
independent experts on the basis of the European Convention on Human
Rights and the jurisprudence of the European Court of Human Rights,
it depends on the nature of the offense for which the person is
imprisoned.

2.1. Purely political offenses

20. These are offenses which relate solely to the political
organization of the State, as “defamation” in respect of its
authorities or other offenses of the same type.

21. All offenders imprisoned for these reasons do not have the
quality of “political prisoners”. The criterion of the legality
of their detention under the European Convention on Human Rights,
as interpreted by the European Court of Human Rights, can be
distinguished. The speech “political nature”, including when highly
critical towards the government and the ruling power is in principle
protected by Article 10, the wording does not permit the prohibition
on behalf of a “pressing social need” in a “democratic society” 28.

But sometimes the political discourse goes beyond the limits set
by the Convention, for example when incites violence, racism or
xénophobie29. It should be noted that whenever the Court held that the
suppression of speech permissible under the Convention, the sentences
imposed by the courts were largely symbolic. As the interpretation of
the Convention must be consistent and free of contradictions, a person
convicted under Article 10, paragraph 2, of the Convention shall be
considered as illegally detained under Article 5 or, by accordingly,
have the status of political prisoner. It is understood, however, that
the penalties for holding about a political nature which do not enjoy
the protection of Article 10 may be contrary to the Convention (and
raise the issue of “political” character of the prisoner concerned)
when the sentence is disproportionate, discriminatory or the result
of a trial marred iniquity.

2.2. Other political offenses

22. These offenses committed for political reasons (not interest)
and which affect both the interests of the State and those of other
individuals, as is the case of terrorist acts. Of course, the state
territorial jurisdiction where such acts are not only entitled to
prosecute the perpetrators, it also has a positive obligation. As a
result, persons convicted of such offenses and remanded in custody
on suspicion of having committed such offenses do not have the
status of political prisoners. This principle, however, suffers the
same exceptions as in the previous category where the sentence is
disproportionate, discriminatory or imposed after an unfair trial.

2.3. Devoid of political offenses

23. Persons detained for offenses of a political character lacking
(that is to say, any other offense in which neither the act nor
criminal intent does not have a political connotation) have not, in
principle the quality of political prisoners. Again, this principle
has a number of exceptions. A person convicted of an offense devoid
of political character may have the status of political prisoner
when the government incarcerates for political reasons. These can
become evident when the sentence is completely disproportionate to
the offense or when the procedure is clearly tainted with iniquity.

2.4. Burden of proof

24. The distribution of the burden of proof is particularly crucial
in an area that depends largely on the “political” motivation or
other of the offender or the government. The approach taken by the
independent experts of the Council of Europe is as follows: it is first
and foremost to those who claim that a particular individual has the
quality of political prisoner to provide a prima facie case. These
are then submitted to the State concerned, which, in turn, will have
the opportunity to present evidence that refutes this allegation. As
summarized by Stefan Trechsel30,

“Except state capacity to demonstrate that the defendant’s detention
is fully consistent with the provisions of the European Convention
on Human Rights, such as has interpreted the European Court of Human
Rights on the bottom the case that the rules of proportionality and
non-discrimination have been met and that the deprivation of liberty
is the result of a process, the person should be considered a political
prisoner. ”

25. The people responsible for establishing the political nature of
detention may also apply, by analogy, the case made by the Court on
presumptions of fact in cases where the respondent State refuses to
cooperate by providing documents, or other information held exclusively
by the government publics31.

2.5. Summary critères32

26. “A person deprived of his personal liberty should be seen as a”
political prisoner ”

a. if the detention was imposed in violation of the fundamental
guarantees set out in the European Convention on Human Rights (ECHR)
and its Protocols, in particular freedom of thought, conscience
and religion, freedom of expression and information and freedom of
assembly and association;

b. if the detention was imposed for purely political reasons unrelated
to any offense;

c. if, for political reasons, the duration of the detention or the
conditions are clearly disproportionate to the offense for which the
person has been convicted or is alleged to have committed;

d. if, for political reasons, the person is detained in conditions
creates a discrimination against others or,

e. if the detention is the culmination of a process that was clearly
flawed and that seems to be linked to political motivations of the
authorities. ”

27. To say a person is a “political prisoner” must be based on solid
evidence, it is therefore the State in which the person is held to
prove that the detention is in full compliance with the Convention
European Court of Human Rights, as interpreted by the European Court
of Human Rights on the merits of the case, that the principles of
proportionality and non-discrimination have been met and that the
deprivation of liberty is the result of a fair trial.

28. Careful examination of these criteria shows a person to whom
the quality of prisoner “policy” is recognized is not necessarily
“innocent”. The political dimension of a case may reside, for example,
the selective application of the law, in the infliction interested in
a heavy punishment, disproportionate to that which would be convicted
of an offense similar people without history ‘political’, or in the
absence of procedural fairness, which can still lead to the conviction
of the guilty. Therefore, the recognition of an inmate as a prisoner
“policy” does not necessarily immediate release: the most appropriate
way to remedy this situation is likely to try again in a fair trial.

That said, given the time that many of these prisoners have already
spent in prison, is to release an emergency, even if they are actually
“guilty” of the crimes alleged against them, is now often the only
way to dispel the suspicion that the particularly harsh treatment
that has been applied was for “political” reasons.

2.6. General acceptance criteria by independent experts

29. Criteria summarized above were sent to all parties concerned. As
stated in the information document of the Secretary General on the
results of work carried out by independent experts, “[n] o substantive
objections were raised [about these criteria]” 34. At their 765th
meeting on 21 September 200135, the Deputies “[took] note with
appreciation of the report of the independent expert of the Secretary
General on alleged political prisoners in Armenia and Azerbaijan, as
contained in document [SG / Inf (2001) 34 and Addendum I and Addendum
II] (…) “and adopted the following statement on this issue:

“The Committee of Ministers of the Council of Europe has learned
with satisfaction that the President of the Republic of Azerbaijan,
August 17, 2001, by decree pardoned 89 political prisoners, 66 were
released and 23 have been their sentences reduced (…) “(emphasis
added to highlight the fact that the term” political prisoners “was
used by the Committee of Ministers itself)

30. Three years later, at the end of the second term of independent
experts, the background paper prepared by the Secretary-General
reaffirms that “[t] hese criteria were accepted by the Azerbaijani
authorities and all instances of the Council of Europe” 36. Subsequent
resolutions of the Parliamentary Assembly also relied on the generally
accepted criteria established by experts indépendants37.

31. During my current term Rapporteur, some members of the commission
have repeatedly tried to reopen the question of the definition of
prisoners politiques38. But I remain convinced that any attempt to
“reinvent the wheel” would only distract us from the important mission
which is ours: to help Azerbaijan to settle permanently the issue of
political prisoners.

32. I would like to recall in this connection that there is no
doubt that the terrorists of ETA, PKK or any other terrorist
organization does not fall within the scope of the definition of
political prisoners, even if they say they committed their heinous
crimes for “political” reasons. However, those accused of terrorist
acts and sentenced for political reasons, given this time by the
authorities, on the basis of an unfair trial and dubious evidence
(“confessions” extracted under torture or testimony obtained under
duress, for example) may well be presumed “political prisoners” if
sufficient evidence lead us to believe that these violations have
actually occurred.

3. Application of the definition in a number of cases of alleged
political prisoners

3.1. Methodology

33. During the investigation for the preparation of this report,
I proposed the Azerbaijani authorities to follow a six-step process:

– First step: to establish a “draft checklist of alleged political
prisoners” from the list of alleged political prisoners presented by
different NGOs.

– Second step: transmitting “project checklist” to the Azerbaijani
authorities to bring their observations.

– Third step: communicate observations authorities to NGOs sent the
names of the parties, asking them to comment on these observations.

– Step Four: During the study visit planned in Baku to discuss with
the authorities and representatives of civil society results from
the first to the third step.

– Step Five: Analyze the information obtained and assess each case
in the light of criteria reaffirmed by the Committee on Legal Affairs
and Human Rights at its June 2010 meeting.

– Sixth step: present conclusions in the form of a draft resolution
and a report for adoption by the Committee on Legal Affairs and Human
Rights, and the Parliamentary Assembly.

34. Unfortunately, the authorities have not submitted their comments
on the list that I have provided in December 2011. The expert selected
by the authorities and invited to the hearing of January 2012 has
also chosen to examine only general questions and did not comment
on the merits of the case that I raised. As I already indiqué39,
the Azerbaijani authorities have not I allowed to make a study visit
to Baku, which would have given yet another opportunity to submit an
official point of view on business question.

35. I have however received numerous comments, additional information,
clarification and further explanation about the different categories of
cases from non-governmental organizations, which I consulted before and
after the hearing of January 2012 . 10 and 11 May 2012, in particular,
I had the opportunity to work with two defenders Azerbaijani Human
Rights, who visited Berlin and we have forwarded to my colleagues and
myself, a profusion information on a number of selected cases. I would
like to thank MM. Anar Anar Mammadli and Gasimli for professionalism
and patience they have shown in dealing with the pace of the questions
we have asked for two days of work intense40.

36. Insofar as the cases in question dating back to successive terms
independent experts of the Council of Europe, I relied heavily on case
studies experts. I do not seek to challenge the findings of the post
independent eminent experts, who received for their work resources far
superior to those available to me as rapporteur of the Assembly. NGO
representatives who had previously worked with independent experts
told me on the basis of solid evidence that the lack of recognition
of the quality of political prisoners has sometimes only been due to
the fact that the applicants had not provided expert information that
allowed them to determine the existence of a “prima facie” 41.

According to the NGOs, this can be explained by a lack of legal advice
or assistance provided to interested NGOs, which do not all show the
same professionalism and objectivity same. Some people whose names
were on the list may have wrongly feel that their inclusion on the
list would automatically release. As this occasion is perhaps the
last chance for them to be released, I decided to include them on the
“Draft checklist of alleged political prisoners” transmitted to the
authorities and representatives of civil society for comments. When I
had in these cases sufficient evidence for me to conclude that a prima
facie reason to consider that these cases concerned were “political,”
while the authorities did not provide any evidence that showed the
opposite I have registered on the final list. These cases included
the case of very young (at the time) special forces of the Ministry
of the Interior (“OPON”), who had taken part in a failed coup in 1995,
obeying the orders of their superiors. While their superior officers,
that is to say, the organizers and instigators of the coup attempt
were released long after the quality of “political prisoners” they
were recognized by the Council of Europe, several troops and drivers,
in particular, are still in prison. They should be free too, otherwise
show discrimination towards them, unless they have been convicted
on the occasion of a fair trial for crimes committed during the
attempted coup for which the responsibility of their leaders could
not be committed.

37. As I mentioned haut42, I realize that this Assembly is not a
court. This is why I will set no definitive conclusion on cases of
alleged political prisoners brought to my attention. But I gathered
a considerable amount of information drawn from various sources.

Azerbaijani authorities as I have not made known their views on the
information that I have transmises43 I applied, mutatis mutandis,
the legal principle of the presumption of fact that the European
Court of Human Rights uses when the respondent State does not another
version credible facts presented by the requérant44. In the light of
this principle, a careful examination of all the information I had
thus led me to recognize a number of persons as political prisoners
“alleged” 45. It is appropriate to release these people or at least
try them again in a fair trial, unless the authorities fail to refute
point by point specific elements underpinning my appreciation. As the
Azerbaijani authorities have not taken this step in the preparation
of this report, they will now be carried out under the monitoring
report, if they do not want to be held absolutely responsible for
allowing that, in a Member State of the Council of Europe, cases of
alleged political prisoners find no way out. It is up to others to
determine timely consequences of such a situation.

38. Cases of alleged political prisoners will be presented in this
report by category, to replace the more clearly in their political
context. Lack of space, only one or two particularly representative of
each category will be presented in detail. For ease of reference, an
alphabetical list of all the cases examined annexe46 figure. The main
report includes only the case of persons who, at the time of writing,
were still imprisoned. However, I made a second list in the appendix
which lists persons who meet the criteria of “political prisoners”,
but which are no longer in prison, either because they have served
their sentence, either because they were pardoned . The existence of
such cases is a further illustration of the systemic problems that
this report intends to address. The same reason led me to gather
some cases in a “watch list” of people who are remanded in custody
and have not yet been sentenced. Anyway, the lists that I have not
set the ambition to be exhaustive, it is very likely that a number
of cases have escaped my attention.

3.2. Cases of alleged political prisoners

39. Presentation of cases of alleged political prisoners will be
divided into two main parts: new cases, which occurred after the last
report of the Assembly of 2005, and the older cases, dating back to
the era of independent experts Council of Europe or are related to
these cases.

3.2.1. New cases

40. The “new” cases of alleged political prisoners are divided into
five main categories. The first case includes leaders and activists
of the main opposition parties laity (including “Musavat” and “Popular
Front”). The second category includes cases of civil rights activists
(including members of “Citizens’ Assembly” / Ictimai Palata, which
brings together several civil society groups and the opposition,
but not all of them) . The third category includes journalists (many
of which are on my “watch list” of persons remanded in custody). The
fourth category includes various series of cases involving Islamic
militants, while the fifth and final category of other emblematic
cases, such as former ministers who have distanced themselves from
the current regime.

3.2.1.1. The case of leaders and activists of the main opposition
parties lay

41. This category includes a number of young people arrested during
a peaceful demonstration organized by General “Citizens’ Assembly”
April 2, 2011, while the authorities feared that the “Arab Spring”
will spread to Azerbaijan. They are accused of primarily caused
“unrest” at the event or have participated.

Case 1: Abbasli (Abbasly) Tural

42. Mr. Abbasli, president of the youth organization of the opposition
party “Musavat”, was a student at the University of Baku (Master
of Journalism), it was excluded at the time of his arrest. He was
arrested on April 2, 2011, at the beginning of the rally organized by
the “Citizens’ Assembly”, while chanting slogans in favor of freedom
and the resignation of the government. According to his lawyers,
two policemen beat him with batons and took him to the police Yasamal
district, where he was again beaten, this time by the head of police.

When his lawyer, Mr. Gasimli, went to the police station, he found
bruises (around the eyes and on the legs of Mr. Abbasli) and an
investigator asked permission to take photos, which was refused. The
investigator also refused to be photographed. During the trial, Mr.

Abbasli informed the judge that he had been struck. The judge
ordered the prosecutor to open an investigation in writing, that the
prosecutor refused. According to prosecutors, bruises, whose presence
had meanwhile been confirmed by an expert, were caused by M. Abbasli
himself, then he offered resistance at the time of his arrest.

43. September 7, 2011, Mr. Abbasli was convicted of the offense under
section 233 of the Criminal Code (organization of an act that causes
a disturbance to public order) and sentenced to two years and six
months imprisonment.

44. The maximum penalty under Article 233 of the Penal Code is three
years imprisonment. This arrangement offers several alternatives to
imprisonment, such as fines, community service or a maximum penalty
of two years of restriction of liberty. Fourteen people in total were
arrested at the rally on April 2, four as organizers and the other 10
to be taken “active.” Three of the four “organizers”, Mr. Abbasli Mr.

Hajili (Case No. 34) and Mr. Majidli (Case No. 64), were sentenced
to long terms of imprisonment, the fourth Fuad Gahramanli has only
house arrest while he was one of the official organizers of the event.

Defenders of human rights believe that this difference in treatment
is a strategy of “divide and rule”, to encourage rumors of collusion
with the authorities, so as to conquer the mistrust between opposition
activists.

45. However, having found Mr. Abbasli guilty of being an “organizer”
of this gathering is a manifest miscarriage of justice: when the
organizing committee of the event met and decided to hold this
rally April 2, 2011, that is to say on 18 March 2011, Mr. Abbasli
was actually placed in administrative detention. He was arrested on
12 March 2011 following a gathering of youth organizations March 11,
2011 and was not released until March 19, 2011.

46. Heavy sentences against the organizers and participants of the
rally on April 2 were motivated by the alleged “violence” committed
by some participants. According to lawyers and NGOs, who provided the
footage of événements47 that seem to confirm their claims, this event
corresponded peaceful exercise of the right to freedom of expression.

While windows were broken at the end of the event by persons unknown
to the organizers (and suspected “agents provocateurs”), some police
beat the protesters, who were content to raise his arms to protect
themselves batons. The testimony of certain prosecution witnesses,
shop owners in a market close to the venue, which argued that access
to their shop had been disturbed to such an extent that they were
forced to close temporarily, were “perfectly repeated,” according to
the lawyers. In any event, none of the persons convicted for having
organized or participated actively in this event has been accused of
committing acts of violence and even fewer convicted for violence.

47. Amnesty International has recognized Mr. Abbasli quality “prisoner
of conscience”. I also considered a political prisoner under alleged
“criteria Trechsel.” The fact of organizing an event or participate in
exercising their right to peaceful expression of his opinions should
not be criminalized and should certainly not lead to imprisonment as
heavy. Procedural irregularities and the establishment illogical facts
corroborate the presumption again the political nature of this case.

Case No. 23: Eyvazli Zulfugar (Zulfuqar) / EYVAZOV Zulfigar

48. Mr. Eyvazli is president of the section of the opposition Popular
Front (AXCP / AWP) of Nizami District. He was sentenced to one year
and six months imprisonment for taking an “active part” in the event
of 2 April 2011 (see Case 1 above).

Case No. 33: Hajili (Hajily), Arif

49. Mr. Hajili directs the central apparatus of the Musavat Party, he
was arrested during the rally “Citizens’ Assembly” 2 April 2011 (see
Case 1 above) and sentenced to two years and six months imprisonment.

Mr. Hajili had previously been arrested during a protest rally
organized after the 2003 presidential election and sentenced to one
year of imprisonment.

50. On 10 January 2012, the European Court of Human Rights ruled in
favor of Mr. Hajili48 in finding a violation of Article 3 of Protocol
No. 1 to the Convention (right to free elections). Although this case
is not related to the reason for his imprisonment, it illustrates
the political conflict between Mr. Hajili the Azerbaijani authorities.

51. Amnesty International has recognized Mr. Hajili quality “prisoner
of conscience”. It is also a political prisoner suspected, given the
political nature of his action, disproportionate punishment which
was inflicted and the context in which the trial is registered and
the other activists, amid conflict with previous authorities about
the right to free elections.

Case No. 34: Hajibeyli, Rufet (Rufat)

52. Mr. Hajibeyli took part in the activities of political parties
and opposition movements and was convicted of taking an “active part”
in the event of 2 April 2011 (see Case 1 above) and was sentenced to
one year and six months imprisonment.

Case No. 35: Hasanli, Shahin

53. Mr. Hasanli responsible for management of the opposition Popular
Front, was arrested before the event on April 2, 2011, when he spent
the night with her mother outside Baku. He had left his home after
being notified of his arrest. When police raided the home of his
mother during the night, he did not resist, but refused to sign the
minutes of search in the absence of independent witnesses required
by law. During the search in question, the police found a cartridge.

Witnesses of the search appeared at the trial, but the defense said
they were not on the premises at the time of the search. July 21,
2011, Mr. Hasanli was convicted of taking a “active” in the event of
2 April 2011 (see Case 1 above), not to have executed an order given
by the police and illegal possession of ammunition and was sentenced
to two years imprisonment.

54. The political nature of the act he was convicted and the
disproportionate nature of the heavy penalty of imprisonment to which
he was sentenced make him a political prisoner alleged (curiously, when
he was an “organizer” official event on April 2, he was there because
he had not been previously arrested and convicted for having taken an
“active”). The fact that he was convicted of possession of ammunition
seems particularly suspect under the circumstances: in addition to
the alleged lack of witnesses, why would he brought a cartridge in
the house of his mother he had reason to fear imminent arrest?

Case No. 36: Hasanov, Babek

55. Mr. Hasanov is a militant opposition, he was convicted of taking a
“active” in the event of 2 April 2011 (see Case 1 above) and sentenced
to a term of a year and a half in prison.

Case 57: Kerimov, Sahib

56. Mr. Kerimov is a militant opposition, he was convicted of taking a
“active” in the event of 2 April 2011 (see Case 1 above) and sentenced
to a term of two years’ imprisonment.

Case No. 60: Majidli, Elnur

57. Mr. Majidli is a militant opposition, he was convicted of taking a
“active” in the event of 2 April 2011 (see Case 1 above) and sentenced
to a term of a year and a half in prison.

Case No. 61: Majidli, Mohammad (Mohammad)

58. Mr. Majidli is vice president of the opposition Popular Front
(AXCP / PPFA), he was convicted of being one of the organizers of
the event on 2 April 2011 (see Case 1 above ) and sentenced to two
years imprisonment.

Case No. 64: Mammadli (Mamedli), Ahad

59. Mr. Mammadli is an active member of the opposition party Musavat,
was convicted of taking an “active part” in the event of 2 April 2011
(see Case 1 above) and have opposite resistance by force of state
officials (Article 315 of the Penal Code) and was sentenced to three
years imprisonment.

Case No. 80: Quliyev, Ulvi

60. Mr. Quliyev is an opposition activist. He was convicted of taking
a “active” in the event of 2 April 2011 (see Case 1 above) and have
resisted by force of state officials (Article 315 of the Penal Code)
and was sentenced to three years imprisonment.

Read the report on the website of the Parliamentary Assembly of the
Council of Europe by clicking HERE

Source / Link: Parliamentary Assembly of the Council of Europe

From: A. Papazian

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