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Defining “Political prisoner”

Tasked in 2001 with enquiring into the existence of political prisoners, Stefan Trechsel and Evert Alkema, both law professors and former members of the European Commission of Human Rights, have produced the first international legal definition of “political prisoner”. Interview with Professor Trechsel.

Interview (13.07.2004)

Question: Stefan Trechsel, you teach criminal law at Zurich University and are a former President of the European Commission of Human Rights. You have just submitted your report, co-authored by Evert Alkema, who teaches at Leiden University in the Netherlands and is also a former European Commission of Human Rights member, on the issue of political prisoners in Azerbaijan. What precisely was your mandate?

S.Trechsel: In 2001 the Council of Europe Secretary General, Walter Schwimmer, appointed us as independent experts to see whether the people on a list of 716 prisoners in Azerbaijan, submitted by non-governmental organisations, were political prisoners. We were asked to provide the Secretary General with confidential case by case opinions. Following our finding in 2001 that there were indeed political prisoners in Azerbaijan, in 2002 we resumed work on the list under a second mandate and we have just completed it. We did not in fact have to deliver 716 opinions as many prisoners were gradually released throughout our mandate, some after serving their sentences and others after receiving presidential pardons following our informal contacts with the authorities. We actually worked on more than 200 cases and ended up delivering a hundred or so opinions.

Question: What conclusions did you come to? Were they political prisoners?

S.Trechsel: We did confirm that there were political prisoners in Azerbaijan. In 2001, out of 22 “pilot” cases we looked into, we concluded that 17 were political prisoners. Under our second mandate, out of 104 opinions delivered, we concluded that 45 people were political prisoners. Nearly all these people have been released or retried. The decision of the Azerbaijani authorities with respect to two persons only is not yet known.

Question: On what basis – applying what definition – did you decide who was a political prisoner and who was not?

S.Trechsel: As there was no definition of the term “political prisoner” in international law, in 2001 we began by deciding what objective criteria a detainee had to meet to be regarded as a political prisoner. This, somewhat, pioneering work bore fruit because our criteria were accepted both by the Azerbaijani authorities and all the Council of Europe’s bodies. For instance, the definition includes people whose sentences are manifestly disproportionate, for political reasons, to their offences. It also includes prisoners who, likewise for political reasons, are ill-treated or not given proper legal assistance. We often encountered cases of these types in the ones we looked into.

Question: What conclusions do you draw from this assignment? Have the Azeris played by the rules?

S.Trechsel: Despite the difficulties the assignment bore results. Notably by keeping the work confidential and through informal contacts with the authorities, we achieved the release or retrial of almost all the people considered to be political prisoners. A confidential approach can indeed pay off and get concrete results! Needless to say that would not have been possible without the Azerbaijani authorities’ co-operation and their agreement to releases and retrials in line with the commitment undertaken when they joined the Council of Europe in 2001. The Parliamentary Assembly and the Committee of Ministers also played a part by ensuring the political follow-up to our opinions. Lastly, the assignment would not have taken place at all without the Secretary General, who initiated this work.

Question: Has the issue of political prisoners in Azerbaijan and possibly in Europe been settled once and for all?

S.Trechsel: Our mandate was confined to a specific list of persons. There are other lists of alleged political prisoners. The Parliamentary Assembly is following closely this issue. In addition, a number of people who believe themselves to be political prisoners now have the possibility of applying to the European Court of Human Rights.