Since 2001, the issue of polit­i­cal pris­on­ers has become one of the high­ly con­test­ed issues attract­ing atten­tion for inten­si­ty of its being dis­cussed in the Coun­cil of Europe. When this issue was brought to the agen­da of the Coun­cil of Europe, the con­cept of "polit­i­cal pris­on­er" and its legal nature had not been defined in any inter­na­tion­al­ly legal doc­u­ment and the doc­u­ments of the Coun­cil of Europe either.

It should be not­ed that this issue has not been solved on the inter­na­tion­al­ly legal basis so far. More­over, none of inter­na­tion­al courts use this def­i­ni­tion. It is obvi­ous that the Euro­pe­an Court of Human Rights is a spe­cial­ized and the most effect­ive insti­tu­tion in the field of human rights and fun­da­men­tal freed­oms. The deci­sions of this court are prec­e­dent and their imple­men­ta­tion is bind­ing for the mem­ber states. One of the main points is that the Euro­pe­an Court of Human Rights does not use the def­i­ni­tion of "polit­i­cal pris­on­er" in its deci­sions either.

The issue of polit­i­cal pris­on­ers came to the agen­da in con­nec­tion with the mem­ber­ship of Azer­bai­jan and Arme­nia into this insti­tu­tion. Thus, sev­er­al human rights defend­er organ­i­za­tions of the two South Cau­ca­sian coun­tries claimed the pres­ence of polit­i­cal pris­on­ers in their coun­try and sub­mit­ted a list of alleged polit­i­cal pris­on­ers to the Coun­cil of Europe.

In ear­ly 2001, an inde­pend­ent experts group was cre­at­ed by the CE Sec­re­tary Gen­er­al for the def­i­ni­tion of the pres­ence of polit­i­cal pris­on­ers in Arme­nia and Azer­bai­jan in order to put an end to legal short­com­ing in the def­i­ni­tion of polit­i­cal pris­on­ers. The inde­pend­ent experts group worked out a report on the def­i­ni­tion of cri­te­ria for the pres­ence of polit­i­cal pris­on­ers and issued this report to the CE Sec­re­tary-Gen­er­al.

The cri­te­ria pro­posed by the inde­pend­ent experts, envis­aged recon­sid­er­a­tion of cas­es or the release of par­tic­u­lar peo­ple alleged to be a polit­i­cal pris­on­er under the list of some NGOs dur­ing the full admis­sion of Azer­bai­jan and Arme­nia to the Coun­cil of Europe, and these cri­te­ria cov­ered recon­sid­er­a­tion of the cas­es of par­tic­u­lar pris­on­ers in a short peri­od of time as a con­sen­sus and was of a tem­po­rary nature. Thus, the report worked out by the inde­pend­ent experts was not a com­mon­ly recog­nized legal doc­u­ment appli­ca­ble to mem­ber states of the Coun­cil of Europe.

Nev­er­the­less, some for­ces in the Coun­cil of Europe con­tin­ued to use the con­cept of "polit­i­cal pris­on­er" for polit­i­cal pris­on­ers so far. They ignored the lack of com­mon­ly recog­nized doc­u­ment cov­er­ing legal nature of the con­cept of "polit­i­cal pris­on­er" and suc­ceed­ed in the appoint­ment of a spe­cial rap­port­eur with­in the man­date of fol­low­ing up the issue of polit­i­cal pris­on­ers only on Azer­bai­jan out of 47 CE mem­ber states. Aft­er­wards, the Legal Affairs Com­mit­tee de-fac­to admit­ted the lack of the cri­te­ria for the def­i­ni­tion of "polit­i­cal pris­on­ers" and made a deci­sion on pre­par­ing the sec­ond report on "Revis­it­ing the issue of polit­i­cal pris­on­ers". At the same time, the Com­mit­tee decid­ed to merge both reports in ques­tion and charge the same rap­port­eur - Chri­stoph Straess­er with their prep­a­ra­tion. There­fore, the issue of polit­i­cal pris­on­ers became depend­ent on the posi­tion of one MP with­in the Coun­cil of Europe.

Accord­ing to this log­ic, the same rap­port­eur pre­pares cri­te­ria and works out a report on polit­i­cal pris­on­ers in the coun­try with­in these cri­te­ria. This approach can­not be con­sid­ered objec­tive by any means. Thus, it strong­ly con­tra­dicts with the prin­ci­ples of "rule of law" and "equal­i­ty of mem­ber states" envis­aged in Arti­cle 3 of the Reg­u­la­tions of the Coun­cil of Europe.

Thus, the Com­mit­tee on Legal Affairs and Human Rights had repeat­ed­ly dis­cussed this issue and final­ly, at the meet­ing in Octo­ber of 2011, made a deci­sion to change the title "Revis­it­ing the issue of polit­i­cal pris­on­ers" in CE coun­tries. Though the adop­tion of this deci­sion brought to the agen­da the inves­ti­ga­tion of the issue of polit­i­cal pris­on­ers with­out any dis­crim­i­na­tion in all 47 CE mem­ber states, dis­crim­i­na­tion towards mem­ber states con­tin­ued.

Thus, dur­ing the Jan­u­ary 2012 part ses­sion of PACE, the rap­port­eur Straess­er dis­trib­ut­ed a doc­u­ment named "Infor­ma­tion Mem­o­ran­dum" to the atten­tion of the mem­bers of the Com­mit­tee. This one-sid­ed doc­u­ment showed that though the title of report was changed and expand­ed through all CoE mem­ber states, Mr. Straess­er intends to focus only on Azer­bai­jan. More­over, the Azer­bai­jani human rights defend­ers who were invit­ed to the hear­ings in the Com­mit­tee under­lined that there were no cri­te­ria of "polit­i­cal pris­on­er" appli­ca­ble to all mem­ber states. The abso­lute major­i­ty of the Com­mit­tee mem­bers, who deliv­ered speech, high­light­ed the fact that the cri­te­ria of the con­cept of "polit­i­cal pris­on­er" appli­ca­ble to all mem­ber states should be devel­oped and stressed the neces­si­ty of split­ting reports on fol­low­ing up polit­i­cal pris­on­ers and the def­i­ni­tion of the con­cept of a "polit­i­cal pris­on­er".

Final­ly, aft­er inten­sive dis­cus­sions at the meet­ing of the PACE Com­mit­tee on Legal Affairs on 21 May 2012, the deci­sion was adopt­ed to split the report on "Revis­it­ing the issue of polit­i­cal pris­on­ers" into two sep­a­rate reports - def­i­ni­tion of the con­cept of "polit­i­cal pris­on­er" and fol­low-up of polit­i­cal pris­on­ers in mem­ber states.

Over­all, this deci­sion is of utmost impor­tance to the Coun­cil of Europe. Thus, this deci­sion is a step towards respect­ing Euro­pe­an val­ues and rule of law in the Euro­pe­an area, where CE mem­ber states live togeth­er as a fam­i­ly. On the oth­er hand, accord­ing to the deci­sion of Com­mit­tee, first of all, the cri­te­ria for the con­cept of a "polit­i­cal pris­on­er" appli­ca­ble to all mem­ber states should be pre­pared and adopt­ed in the Coun­cil of Europe. Only aft­er­wards, the fol­low-up of the alleged polit­i­cal pris­on­ers in the mem­ber states may be car­ried out with­out any dis­crim­i­na­tion.

Thus, PACE Com­mit­tee on Legal Affairs and Human Rights made its deci­sion on 21 May. Accord­ing to this deci­sion, the issue of polit­i­cal pris­on­er should be solved on a legal basis. It is clear that some inter­na­tion­al NGOs use the con­cept like "polit­i­cal pris­on­er", "pris­on­ers of con­science" etc. in their activ­i­ties and they have own cri­te­ria on these con­cepts. In most cas­es, their cri­te­ria dif­fer strong­ly and con­tra­dict one anoth­er. In its turn, this caus­es some dis­con­tent and makes urgent to pre­pare uni­ver­sal cri­te­ria for the con­cept of "polit­i­cal pris­on­er". I hope that as an influ­en­tial inter­na­tion­al organ­i­za­tion in the field of human rights and fun­da­men­tal freed­oms, the Coun­cil of Europe will suc­ceed in the prep­a­ra­tion and adop­tion of uni­ver­sal cri­te­ria regard­ing this impor­tant issue appli­ca­ble to all mem­ber states. Undoubt­ed­ly, this is a very respon­si­ble and dif­fi­cult, but hon­or­a­ble work. Thus, the solu­tion of the issue of polit­i­cal pris­on­er on a legal basis means put­ting an end to polit­i­cal spec­u­la­tions regard­ing this issue and shows the respect to the rule of law.

Tatiana Bur­ud­ji­eva is a PhD in soci­ol­o­gy. She teach­es polit­i­cal sci­ence at the Uni­ver­si­ty of Sofia. Since 2006, mem­ber of the Euro­pe­an Asso­ci­a­tion of Polit­i­cal Con­sult­ants.