9 June 2013
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What would it take for the vision of a Europe without political prisoners to become a reality in the 21st century?
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The Congress of Europe, held in The Hague and presided over by Winston Churchill, proclaimed in 1948 the need for “a Charter of Human Rights guaranteeing liberty of thought, assembly, and expression as well as the right to form a political opposition”:

The Movement for European Unity must be a positive force, deriving its strength from our sense of common spiritual values. It is a dynamic expression of democratic faith based upon moral conceptions and inspired by a sense of mission. In the centre of our movement stands the idea of a Charter of Human Rights, guarded by freedom and sustained by law … To rebuild Europe from its ruins and make its light shine forth again upon the world, we must first of all conquer ourselves.”

The Statutes of the Council of Europe, signed at St. James Palace in London in May 1949, committed all members of this new organization to respect “the spiritual and moral values which are the common heritage of their people and the true source of individual freedom, political liberty and the rule of law.”
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The European Convention for the Protection of Human Rights and Fundamental Freedoms, ready for signature in Rome in 1950, then spelled out these fundamental civic and political rights, which “the governments of European countries which are like-minded” committed to respect.
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Repression of liberty of thought and of political opposition in Europe did not end with the creation of the Council of Europe and the adoption of the Convention, however. Hearing about two Portuguese students in Lisbon, sentenced to seven years imprisonment for raising their glasses in a toast to freedom motivated the British human rights lawyer Peter Benenson to write an article in the Observer about “forgotten prisoners” in 1961. He started:
“Open your newspaper any day of the week and you will find areport from somewhere in the world of someone being imprisoned, tortured or executed because his opinions or religion are unacceptable to his government. There are several million such people in prison—by no means all of them behind the Iron and Bamboo Curtains—and their numbers are growing. The newspaper reader feels a sickening sense of impotence. Yet if these feelings of disgust all oer the world could be united into common action, something effective could be done.”
At the time five of Benenson’s eight “forgotten prisoners” were Europeans: a Romanian philosopher, a Spanish lawyer, a Greek trade unionist, a Hungarian Cardinal and the archbishop of Prague. Benenson of course went on to set up an innovative and new organisation in the wake of his successful camapaign: Amnesty International.
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However, neither Portugal nor Spain, neither Romania nor Hungary nor Czechoslovakia were then members of the Council of Europe (Greece would withdraw from it in 1969 following its military coup). None of them had accepted and ratified the European Convention for the Protection of Human Rights. More than half a century has since passed. The Council of Europe has expanded dramatically so that today 47 countries with a total population of 800 million people have pledged to respect the fundamental rights of the European Convention. But today there is again a challenge to its core values, and this time it is one that has emerged within the very institutions that were meant to protect them.
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In October 2012 the Parliamentary Assembly of the Council of Europe adopted a definition of “political prisoner”.  This definition was first developed by eminent European human rights lawyers working for the secretary general of the Council of Europe as independent experts. The adoption of this definition, following a heated and controversial debate, came at a moment of growing concern that in a number of Council of Europe member states we see a new wave of trials for political motives.  In some countries, one sees the re-emergence of the phenomenon familiar from an earlier period of European history: dissidents, sent to jail for speaking out loud.
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The immediate question that emerged now was obvious: how would such a definition become operational? The first attempt to apply it – in the case of Azerbaijan in January 2013 – ended in defeat in the Parliamentary Assembly (see more here: http://www.esiweb.org/index.phplang=en&id=156&document_ID=136)
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There are many wider policy questions raised by all this –which ESI together with the Jarl Hjalmarson Foundation explores this week at a seminar in Stockholm: What should and could be done by the institutions of the Council of Europe to operationalize the definition of political prisoner that has just been adopted? Is the current system of monitors capable of confronting systemic violations? Are other member states, who are committed to defend the European Convention of Human Rights, able to define red lines that must not be crossed by Council of Europe members with impunity? How can European civil society do even more to use existing institutions and commitments to resist a rising authoritarian temptation?
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The October 2012 PACE resolution sets concrete criteria for what defines a “political prisoner.”. According to Resolution 1900, adopted in a 100-64 vote, a person shall be regarded as a political prisoner if he or she has been deprived of personal liberty in violation of guarantees set forth by the European Convention on Human Rights and its Protocols, including freedom of thought, conscience, and religion; freedom of expression and information; and freedom of assembly and association. Additional criteria include detention imposed for purely political reasons without connection to any offense; the length or conditions of detention being clearly out of proportion to the offense; a clearly discriminatory manner of the detention; and unfair, politically motivated proceedings leading to the imprisonment.
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But what can institutions like the Council of Europe do, going forward, to better defend the ideal of a Europe in which the values of the ECHR are fully respected and in which there would not be any political prisoners in the sense of the definition adopted by PACE in October 2012 (see below). Of course there is always the European Court of Human Rights for individual cases, but what if problems of political prisoners become systemic? It is important to put this debate in the current European context of challenges to the convention, including politically motivated arrests.
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Situations are obviously different even among countries in which problems exist. Azerbaijan and Russia, along with several other post-Soviet states, are today members of the Council of Europe. Yet in recent years governments in these countries have become increasingly aggressive in challenging core values of the Convention – through legislation and through systematic arrests and intimidation of critics and possible political opposition. They have thus tested the instruments and institutions of today’s human rights regime in Europe and have found them to be weaker and easier to manipulate than anybody would have expected in the 1990s. Four decades after the rest of Europe learned about “dissidents” in former communist countries a new generation of dissidents is emerging in the European East … yet this time in countries which insist to be considered “like-minded members” of the club of European democracies.
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Furthermore two other members of the Council of Europe, Turkey and Georgia, have also come into focus in this context, though
evidently the situation in both of these two countries are very different from that in Moscow and Baku, as well as very different from each other. In Turkey we have conceptually at least three different kinds of issues. There is a pattern – for decades – of a judiciary using repressive laws to attack free speech in the name of public morality; there are a range of cases on the basis of anti-terror legislation; and there are the recent high-profile cases against senior military officers and the “deep state”. There is noticeably a lot more freedom of speech than one decade ago, with competitive elections; yet there are also de facto more journalists in jail in Turkey than in any other countries in the world. The trials against many senior military members have been a key tool in a struggle by a civilian government to break the hold of power of the military; and yet there are many signs that they are also political trials, not too concerned about evidence and fairness. How promising then are current efforts to promote reforms of the legislation and the judiciary in Turkey to address such problems? Is the definition of political prisoners, is the Council of Europe a useful reference point in a Turkish context?
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In contrast to its Caucasian neighbours, Georgia has seen a democratic election lead to a real change in power in October 2012; and there are strong and protective laws on freedom of speech. The Council of Europe definition on political prisoners has recently also been applied to set
people free from jail.  At the same time there are growing concerns about prosecutions of former UNM members. A lingering question is whether these cases will turn into witch-hunts, whether the judiciary will be able to preserve credibility and fairness, and how to ensure that the behaviour of the executive and prosecutors remains within limits of rule of law.
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The aim of the Conference is to have an open discussion on the issues of political prisoners and political persecution, rule of law and the role of the judiciary overall in the context of the cooperation within the Council of Europe, in particular in the member states mentioned. The discussions will also focus on how the Council and its member states should act in a consistent fashion in addressing these issues.  And what options there are for different instruments available to in the Council of Europe framework to have more impact on the human rights situation in member states: the parliamentary assembly (PACE) and its monitors, the Commissioner for Human Rights, the Committee of Ministers and the office of the secretary general.
Some recommended reading:
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Parliamentary Assembly of the Council of Europe, The Definition of Political Prisoner, 2012
Rapporteur of the committee of Legal Affairs of PACE, The follow up to the issue of political prisoners in Azerbaijan
http://www.assembly.coe.int/ASP/Doc/XrefViewPDF.asp?FileID=19217&Language=EN
European Stability Initiative, Showdown in Strasbourg: The political prisoner debate in October 2012
European Stabiliy Initiative, Azerbaijan debacle: The PACE debate on 23 January 2013
Human Rights Watch, Laws of AttritionCrackdown on Russia’s Civil Society after Putin’s Return to the Presidency, 2013                                http://www.hrw.org/reports/2013/04/24/laws-attrition
Andrew Drzemczewksi, The Prevention of Human Rights Violations: Monitoring Mechanisms of the Council of Europe, 1999
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PS: The Council of Europe definition of political prisoner states:
The Assembly declares that a person deprived of his or her personal liberty is to be regarded as a “political prisoner” :
a. if the detention has been imposed in violation of one of the fundamental guarantees  set out in the European Convention on Human Rights and its Protocols (ECHR), in particular freedom of thought, conscience and religion, freedom of expression and  information, freedom of assembly and association;
b. if the detention has been imposed for purely political reasons without connection to  any offence;Those deprived of their personal liberty for terrorist crimes shall not be considered political prisoners for having been prosecuted and sentenced for such crimes according to national legislation and the European Convention on Human Rights.
c. if, for political motives, the length of the detention or its conditions are clearly out of  proportion to the offence the person has been found guilty of or is suspected of;
d. if, for political motives, he or she is detained in a discriminatory manner as compared  to other persons; or,
e. if the detention is the result of proceedings which were clearly unfair and this appears  to be connected with political motives of the authorities.
Filed under: Azerbaijan,Human rights,Russia,Think Tanks,Turkey — Gerald @ 11:46 pm
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