Forces uninterested in constructive and sustainable cooperation between Azerbaijan and the Council of Europe were regularly trying to raise the so-called “problem of political prisoners in Azerbaijan” at the PACE Committee on Legal Affairs and Human Rights. Finally, after attempts by a group of MPs with prejudiced and biased positions towards Azerbaijan, trying to find faults, the issue was again brought back on the agenda in 2008. However, a group of parliamentarians mainly from the western European countries signed a document, stating about the impossibility of identifying political prisoners without the criteria, and submitted it to the Bureau. The document was sent to the Bureau, to the Committee on Legal Affairs and Human Rights and was again referred to the Bureau and to the Committee.

The Committee on Legal Affairs and Human Rights has always treated such documents biasedly. Referring to the Resolutions 1272 (2002) and 1359 (2004), the committee was claiming about the existence of the criteria for identifying the political prisoners. As I mentioned above, those resolutions did not contain any criteria and therefore, a reference to those documents was absolutely wrong, and the information was wide of the truth.

Finally, in 2008, the Committee on Legal Affairs and Human Rights took into account that the notion of a “political prisoner” was not determined in international law, it was not enshrined in the official documents of the Council of Europe, as well as this notion was not used in the practice of the European Court of Human Rights. And it concluded that there was no legal basis for the allegations, such as a “problem of the political prisoners in Azerbaijan” and that it was important to prepare and pass a relevant document and criteria of the Council of Europe that could be applied to all member states on the issue of the “political prisoners”. To this end, the PACE Bureau adopted a decision. The decision stipulated the preparation of the criteria in 2009 for defining the notion of the “political prisoners” within the framework of the Council of Europe, and postponing the activities of the rapporteurs, appointed to member states on the problem of political prisoners until the adoption of a relevant document.

Regrettably, the problem of the so-called “political prisoners” was again raised at the Committee on Legal Affairs and Human Rights in early 2009. At its meeting on 24 March 2009, the Committee reached a decision on the appointment of a special rapporteur on the issue of political prisoners in Azerbaijan despite the above-mentioned decision of the Bureau. In accordance with the decision of the Committee, German MP Christoph Strässer was appointed a special rapporteur on the issue of the political prisoners in Azerbaijan. At its meeting on 16 December 2009, the Committee on Legal Affairs and Human Rights vested Mr.Christoph Strässer with a mandate to prepare a set of criteria for the notion of the political prisoners. Along with this, the Committee decided to merge the abovementioned two reports. Accordingly, the issue of the political prisoners within the Council of Europe became dependent on the position of a single parliamentarian.

Thus, by the decisions of the Committee on Legal Affairs and Human Rights, Mr. Christoph Strässer was vested with two mandates: the first mandate – the special rapporteur was on the issue of political prisoners in Azerbaijan; the second mandate was on the preparation of the criteria for defining the political prisoners. In other words, Mr. Christoph Strässer was tasked with preparing a report on political prisoners in Azerbaijan based on his own criteria. This was the beginning of a qualitatively new stage in PACE on the issue of the political prisoners, full of harsh, groundless and biased accusations.

So, without paying a fact-finding mission to Azerbaijan and without familiarizing himself with the situation in the country, Mr. Strässer drew up a memorandum, titled “The follow-up to the issue of political prisoners in Azerbaijan and the definition of political prisoners”, and submitted it to the Committee on Legal Affairs and Human Rights on 17 June 2010 (AS/Jur (2010) 28).

The memorandum consisted of four sections, 22 paragraphs and an appendix. In the first section of the Memorandum (Introduction), the author explained his intention to start the implementation of the two mandates under which he was appointed a rapporteur on 24 March and 16 December 2009 respectively. He noted that he would give “an overview of a long and painful history of the problem of political prisoners in Azerbaijan”.

He further noted that he would recall the existence of an “applicable and well-recognized definition of the political prisoners” and on this basis, he would finish the report by building his activity in a planned manner “in favor of the so-called political prisoners in Azerbaijan”. In the memorandum, Mr. Strässer stated that he would ask the Committee to agree with the merger of the two mandates and inform the Bureau of this, as well as to “reaffirm the definition of the notion as put forward by the experts as the basis for the work to be carried out in Azerbaijan”. As we can see, Mr. Strässer laid bare his intention in the first item of the report and de-facto jumped to a hasty conclusion he was expected to reach at the end of the report.

To put it differently, Mr. Strässer confirmed that he would act on the basis of the wording provided by the independent experts of the Council of Europe in paragraph 3 of their respective report with regard to accepting the general definition for the notion of the “political prisoners”, namely, “everything depends on the function the definition should serve”.

What can be said about the essence of this wording? Mr. Strässer was saying that the report would be prepared based on aforethought algorithm that serves specific purposes. According to Mr. Strässer’s algorithm, it is important to achieve concrete results without considering any legal norms and objectivity. That is, regardless of how the input is changed, the output of the function should consist of the following:

a.  The criteria, proposed by the independent experts of the Council of Europe for the notion of the “political prisoners”, are understandable and acceptable;

b.  The existence of the political prisoners in Azerbaijan is outof question;

c.  Both mandates should be merged.

Thus, Mr. Strässer did not use any creative or original idea when drafting a memorandum; actually, he was biased and partial. Indeed, the Memorandum contains discussions and documents on political prisoners in Azerbaijan within the framework of the Council of Europe and points out a number of critical moments over the failure to tackle problems contained in the PACE documents.

In the fourth paragraph, Mr. Strässer recalls that since Azerbaijan’s membership of the Council of Europe, PACE has considered the issue of the political prisoners in Azerbaijan for four times (January 2002, June 2003, January 2004 and June 2005). He drew attention to the Resolution 1457 (2005) adopted on this issue, that is, the Assembly “resolutely reaffirms its principled position that inmates recognized as the political prisoners must be released”.

He also notes that as “determined by the independent experts, by releasing the three remaining political prisoners or by ordering a retrial or through an appeal court as proposed by the Azerbaijani authorities, there is a need to open their court cases to be effectively considered by the European Court of Human Rights”. Later, at the end of the fourth paragraph, Mr. Strässer stated that in the Resolution 1457 (2005), the Assembly welcomed “the undertaking by the Azerbaijani authorities to make use of every legal tools (amnesty, re-trial of criminal cases by courts of higher instances, a conditional release or a release on health grounds, pardon) to settle this problem”. Also in the fifth paragraph of the report, he wrote that”… no pardon decree has been issued since March 2007 despite promises”.

This information of Mr. Strässer was wide of the mark since Azerbaijan honored its commitments and regularly issued pardon decrees and amnesty acts. In 2010 alone, Azerbaijan issued two pardon decrees (17 March and 29 December 2010). Under the pardon decree from March 2010, 62 convicts and 7 people with restriction on freedom were freed from the unserved part of their punishments; the life sentence of a prisoner was replaced with 20-year imprisonment; and one person was freed from fine.

At the same time, Qanimat Zahid, imprisoned editor-in-chief of Azadliq newspaper, was released under this pardon decree; and a woman facing a deferred sentence was also released. Along with the mentioned pardon decree, in 2007, an amnesty act was issued to commemorate the 84th birthday anniversary of Heydar Aliyev, and under this act, over 9,000 inmates were set free.

Thus, with his memorandum, Strässer had seriously damaged the international image of the Azerbaijani state by giving false and misleading information about Azerbaijan to PACE members and, in general, to the public of the Council of Europe member states. He grossly violated the right of the public of the member states of the Council of Europe to receive accurate information.

The point here is that whether Mr. Strässer has demonstrated purposeful, biased position in disseminating such information,or he has been unaware of the processes in the country as a special rapporteur. Thus, if the rapporteur insists on spreading false and misleading information by demonstrating purposeful and biased position, then he is responsible for such activities. On the other hand, if the rapporteur spreads false and misleading information without being aware of the processes taking place in the country, then he did not take seriously the mandate entrusted to him as the rapporteur and could not cope with this mandate.

In the memorandum, a serious moment that draws particular attention to was to what extent Strässer is “objective” and “impartial” in his considerations. Thus, in the second item, the rapporteur notes that the history of the political prisoners issue in Azerbaijan coincides with the time of the accession talks of the country together with Armenia to the Council of Europe, which entered into force on 25 January 2001. Mr. Strässer further emphasized that “in order to overcome member states’ resistance to Azerbaijan and Armenia’s memberships of the organization, a compromise solution was found”.

In the phrase, after the word “Armenia” and at the footnote, he wrote: “Armenia also belonged here; however, a pocket of court cases were rapidly resolved; for this reason, as appropriate, hereinafter, I will only refer to the political prisoners in Azerbaijan”. It’s very interesting, isn’t it?! It seems that Mr.Strässer was either completely asleep at the switch of the real situation in Armenia, or he deliberately fed the PACE members and the European public with false information.

Actually, the real situation in Armenia was not so at all. The situation in Armenia totally opposed Mr. Strässer’s opinion. Armenia’s well-known human rights defender Mikael Danielyan, in his interview in March 2001, said: Human rights, as set forth in all 30 Articles of the Universal Declaration of Human Rights, are violated in Armenia; the judiciary in the republic is corrupt from top to bottom; actually, judges are not independent; they are not dependent only on the laws; throughout the court processes, there are armed security guards in the courtrooms; the police arbitrariness knows no bounds; the fates of detainees in custodies are decided there; decisions are namely adopted there; almost all detainees are subjected to psychological and physical pressures. (Ekho newspaper, No. 24, 1 March 2001) Perhaps, Mr. Strässer was unaware of such deplorable situation in Armenia under Kocharyan’s rule. In my opinion, it is impossible for Mr. Strässer not to be aware of the use of weapons against peaceful demonstrators, alleging the falsification of the 2008 presidential election in Armenia; about the deaths of some 10 people under official information; the detention of hundreds of Armenian citizens due to participation in peaceful protests or being members of opposition parties and their imprisonment to various terms by the courts.

In Strässer’s memorandum, considerations of the Council of Europe’s independent experts regarding the notion of “political prisoners” were repeated as they were, and no new principal approach was sounded. He emphasized that unless the respondent State succeeds in establishing that the person concerned is detained in full conformity with the requirements of the European Convention on Human Rights, the person will have to be regarded as a political prisoner. Mr. Strässer claimed that the above rule was established by the European Court of Human Rights. He stated that the burden of a proof should be with the state where an alleged political prisoner is.

In this regard, it should be noted that the burden of a proof is on a plaintiff, not on a defendant, and this is one of the fundamental principles of the law. What can be said regarding Mr.Strässer’s views as “unless… succeeds in establishing that the person concerned is detained in full conformity with the requirements of the European Convention on Human Rights asinterpreted by the European Court of Human Rights, the person will have to be regarded as a political prisoner”? There is no provision in the judgments of the European Court of Human Rights that the person imprisoned in violation of the Convention’s provisions should be regarded as a political prisoner. This Court does not make use of this notion at all.

As a whole, Mr. Strässer did not propose any new ideas and principles when drafting the memorandum. He demonstrated prejudice and biased position and tried to lend legitimacy to discrimination of Azerbaijan among 47 member states of the Council of Europe. Moreover, he put forward a proposal contradicting the principle of the “rule of law”.