1.2. The position of Azerbaijan in PACE towards the resolution of the “political prisoners” problem

Proceeding from the criteria defined in the report of the independent experts, on 24 January 2002, PACE passed a Resolution 1272, titled “Political prisoners in Azerbaijan”. A number of individual court cases (Iskandar Hamidov, Alikram Hummatov, Rahim Qaziyev and others), who were included in the list of presumed political prisoners at the time when Azerbaijan was admitted to the Council of Europe, were discussed in the resolution without any definition or criteria. No criteria with regard to the notion of the “political prisoners” found its reflection in the resolution. Though the report prepared by the independent experts reflected the criteria to define the existence of the political prisoners both in Armenia and Azerbaijan, the PACE Resolution 1272 (2002) related only to Azerbaijan. No resolution regarding Armenia was passed either earlier or later.

During the Assembly’s June session in 2003, a member of the PACE Committee on Legal Affairs and Human Rights, Belgian MP Georges Clerfayt presented a report on the political prisoners in Azerbaijan. In his report Georges Clerfayt expressed biased position towards Azerbaijan. He said that Azerbaijan did not fulfill its commitments taken with regard to the issue of the “political prisoners” at the time of admission to the Council of Europe, and described persons convicted for different crimes as the “political prisoners”.

I should note that on 16 January 2001, an act of amnesty was adopted in connection with Azerbaijan’s admission to the Council of Europe as a full member. Many people remember that about 2,300 inmates were released from detention facilities, 800 inmates saw their penalties commuted, 4,400 people were released before they were officially charged and investigations against 1,300 were dropped by the investigation bodies and courts. Moreover, the president of Azerbaijan signed a pardon decree, dated from 17 June 2003. Under this decree, 106 prisoners were released and the vast majority of the prisoners, recognized as “political prisoners” by human rights organizations, were among the pardoned. By and large, after Azerbaijan’s admission to the Council of Europe, 527 out of 716 prisoners, considered as political prisoners by some non-governmental organizations, were released. However, the report by Clerfayt did not make mention of them.

The Azerbaijani delegation said that the report on the “political prisoners” on the agenda was controversial, adding that it was aimed at influencing the pre-election situation. During the discussions, the majority of MPs in their speeches underlined that ClerfayPs report was biased and superficial in nature and did not correspond to the criteria of the independent experts, and that the position of the rapporteur and the opinion of the group of experts contradicted. Finally, considering that the report on the issue of the “political prisoners” in Azerbaijan was controversial, PACE took a decision to send the report back to the committee for revision.

In 2004, PACE adopted the second resolution on the political prisoners in Azerbaijan. The list of the alleged political prisoners submitted by some NGOs ahead of Azerbaijan’s admission to the Council of Europe as a full member contained court cases until 1 January 2001. The European Convention on Human Rights came into force in Azerbaijan on 15 April 2002 and since then the people of Azerbaijan have gained the right to apply to the European Court of Human Rights.

From 1 January 2001 to 15 April 2002, NGOs submitted a list of persons alleged to be the political prisoners. The names of these prisoners were not included in the list drafted ahead of Azerbaijan’s admission to the Council of Europe as a full member. Therefore, it remained open under which criteria those inmates were defined as the political prisoners. In order to bridge the gap, the criteria, drawn up by the independent experts in the PACE Resolution 1359 (2004), were approved to keep in force so that to apply them to the people convicted between 1 January 2001 to 15 April 2002. It should be noted that no criteria were presented in the Resolution 1359 (2004) as was the case with the Resolution 1272 (2002).

The next debates at PACE on the political prisoners issue in Azerbaijan were held in June 2005. This issue slightly slowed down after the detailed discussion of a report by Malcolm Bruce, the rapporteur on the issue of political prisoner in Azerbaijan. Malcolm Bruce quitted his post as a rapporteur after concluding the absence of the problem pertaining to the political prisoners in Azerbaijan. Thus, there remained no need to appoint a new rapporteur on Azerbaijan over the factitious issue.

Though the rapporteur post on the issue of political prisoner in Azerbaijan was eliminated, the Azerbaijani government was trying to have this issue solved legally forever, and to this end, on 11 June 2005, it came forward with an initiative of setting up a working group. The group involved government representatives and human rights defenders. Later, this working group continued functioning as the Working Group on Human Rights.

Azerbaijan adopted an act of amnesty and 16 acts of pardon from the end of 2003 to February 2011. These decisions were applied to approximately 10,000 prisoners. Throughout this period, cases of many prisoners, who were alleged to be political prisoners, were re-examined by courts and set free.

In general, by referring to the legal means in question, nurous inmates, presumed to be political prisoners, were released. Moreover, discussions on the judges’ activities were continuously held at the Judicial-Legal Council in order to prevent legal wrongdoings, committed by judges when examining this or that criminal case to avoid the emergence of new prisoners who could be defined as “political prisoners”. Under the recommendations of the Judicial-Legal Council, by 2011 over 100 judges were subjected to different penalties, over 30 judges were recommended not to continue their activities and duties of over 10 judges were terminated ahead of time.

Furthermore, in 2005, Azerbaijan played host to international conferences with the participation of up to 70 experts from 30 countries, including representatives of PACE, the OSCE PA, the European Parliament and the UN on the issue of the “political prisoners” and in 2008 on “The protection of political rights in Azerbaijan – new criteria”. The undefined international and legal nature of the notion of the “political prisoners”, the absence of this term in the international documents, including in universally-recognized official documents of the Council of Europe, as well as the non-use of this notion in the practice of the European Court of Human Rights were underlined in the resolutions and statements of these international conferences. Though those resolutions and statements, prepared with the participation of numerous international experts, were submitted to PACE, the Council of Europe did not react to these documents.

However, the presumed issue of the “political prisoners” was artificially and regularly turned into a subject of discussions in the run up to the presidential and parliamentary elections in the country, as well as ahead of PACE sessions. Both inside and outside the country, some circles used it against Azerbaijan as a tool of political pressure in the form of a large-scaled and biased campaign.

For the sake of preventing such biased campaigns and to familiar the public with the gist of the problem, several Azerbaijani NGOs and “the council on the issue of political prisoners”, made up of over 70 NGOs, set up a group of experienced experts. This group of experts examined the criminal cases of over 100 prisoners recognized as the “political prisoners” by the Council of Europe, and came to an unequivocal conclusion that there was no legal ground to recognize those persons as the “political prisoners”. The group even found out that among the persons recognized as the “political prisoners”, there were persons who had committed crimes, such as kidnapping, terrorism, a coup and other violent offences. The heads of those NGOs informed the leadership of the Council of Europe about the unveiled facts and drew these facts to the attention of MPs of the Council of Europe at bilateral and multilateral meetings.

Moreover, those organizations were regularly addressing the leadership and MPs of the Council of Europe with statements. Those statements underlined that regardless of being a member of any political party or a movement, or a senior official, everybody should be held responsible for crimes he/she committed. And politicizing this issue contradicts the rule of law which is the main factor in the formation of a democratic, law-governed state and civil society. Probes into several criminal cases or mistakes made by investigators or judges in trials of crimes do not give any grounds to recognize those offenders as the “political prisoners”. These issues should be solved by legal rather than political means. If somebody is dissatisfied with decisions made by the national legal-judicial system, he/she may go to the European Court of Human Rights.

What else were underlined in these statements? In the absence of any universally accepted legal criteria or international legal documents, it is discrimination to allege the existence of a problem of the political prisoners only in Azerbaijan among 47 member states; and the appointment of a special rapporteur on the political prisoners in Azerbaijan contradicts the international legal norms. Furthermore, this complies with neither the common European values, nor the principles of the Council of Europe. It undermines the reputation of the Council of Europe.

Azerbaijan has also remained loyal to its tradition of resolving the problem of the political prisoners unbiasedly and impartially within the framework of the Council of Europe. Since the membership of the Council of Europe, the Azerbaijani delegation and the government of Azerbaijan have regularly raised the issue of absence of a legal document, envisaging the criteria for political prisoners.

Azerbaijan has been urging the Council of Europe that the clarification and investigation of this issue is impossible unless a legal document and criteria are defined. However, for its part, the Council of Europe has always applied double standards and showed biased position towards Azerbaijan in this regard, appointed a rapporteur only to Azerbaijan out of the 47 member states and held official Baku responsible for this problem and paid no heed to its demands.