Political prisoners in Azerbaijan
Doc. 9310
11 January 2002
Report
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Georges Clerfayt, Belgium, Liberal, Democratic and Reformers' Group

Summary
Despite several successive waves of liberation of prisoners, Azerbaijan has not respected the general principle that there can be no political prisoners in any member state of the Council of Europe.
Basing itself on the criteria established to identify �political prisoners� by the independent experts appointed by the Secretary General of the Council of Europe, the Rapporteur proposes that the Assembly ask the authorities of Azerbaijan that all prisoners to which those criteria apply are either released or granted a new trial respecting the principles of the Council of Europe.
I. Draft resolution
1. On becoming a member of the Council of Europe, Azerbaijan freely accepted the firm commitment, essential under international law, set out in paragraph 14.iv.b of Opinion No. 222 (2000), namely "to release or to grant a new trial to those prisoners who are regarded as "political prisoners" by human rights protection organisations, especially Mr Iskander Gamidov, Mr Alikram Gumbatov and Mr Raqim Gaziyev". In January 2001 the Committee on Legal Affairs and Human Rights was seized with a motion for a recommendation (Doc 8919) renewing the concern of many members of the Assembly about the fate of political prisoners in Azerbaijan.
2. The Azerbaijani authorities had been aware of these requirements at least since the meeting of the Committee on Legal Affairs and Human Rights held in Cyprus on 22 May 2000, on which date that Committee adopted its opinion on Azerbaijan's application for membership of the Council of Europe.
3. The Assembly appreciates the initiative taken by the Secretary General of the Council of Europe to ask three experts to prepare a confidential opinion on the cases of presumed political prisoners in Armenia and Azerbaijan[1]. In this connection, it considers that the objective criteria adopted to identify "political prisoners" in these two countries are valid.
4. The Assembly acknowledges that, to date, some 220 presumed political prisoners have been released, including six of the 17 recognised as such in the report of the experts appointed by the Secretary General.
5. The Assembly takes note of the pardons granted by the President of the Republic of Azerbaijan in a decree of 29 December 2001, whereby 57 prisoners were released, including 29 regarded as political prisoners by non-governmental organisations, but none of those from the more limited list of the experts appointed by the Secretary General.
6. The Assembly takes note of the commitment undertaken, on 3 January 2002, by the Azerbaijani authorities to set up a joint working group to draw up clearly a list of prisoners considered as political prisoners and not yet released, by examining individually each case presented by the representatives of the Assembly. This new cooperation will be a big step towards finding a solution to the problem.
7. Despite these encouraging results, the Assembly asks Azerbaijan to show a stronger political will to solve the problem of its political prisoners in its entirety.
8. With regard to the three prisoners named in Opinion No. 222 (2000), the Assembly takes note of the decision taken by the General Prosecutor, on 26 December 2001, to organise a new trial. The Assembly nevertheless asks Azerbaijan to give renewed consideration to the political expediency of releasing them, in order to avoid reviving facts and tensions of the past
9. The Assembly also asks for the release of the remaining political prisoners on the list of 17 recognised as such by the experts appointed by the Secretary General, that is to say case No 5 (Amiraslanov Elchin Samed oglu), case No 7 (Efendiyev Natig Islam oglu), case No 14 (Imranov Nariman Shamo oglu), case No 15 (Kazymov Arif Nazir oglu), case No 16 (Abdullayev Qalib Jamal oglu), case No 17 (Guseynov Suret Davud oglu), case No 18 (Safikhanov Ilgar) and case No 25 (Guseynov Guseynbala).
10. In addition, and as a gesture of good will, the Assembly asks for the review of the cases of those alleged political prisoners in favour of whom the Rapporteur of the Committee on Legal Affairs and Human Rights argued before the authorities during his visit to Baku on 27-28 December 2001.
11. The Assembly reiterates that there can be no political prisoners in any member state of the Council of Europe.
12. The Assembly reserves the right to take any appropriate measures at its disposal in order to persuade the Azerbaijani authorities of the need to release or retry any prisoner regarded as a political prisoner, in accordance with the commitment entered into at the time of the country's accession.
13. The Assembly resolves, as an initial measure, to hold a fact-finding debate on political prisoners in Azerbaijan, which will be broadcast on radio and television throughout the country.
II. Explanatory memorandum by Mr Clerfayt, Rapporteur
A. Retrospect and procedures
1. Opinion No 222 (2000), adopted in June 2000 by the Parliamentary Assembly and proposing Azerbaijan�s admission as a member, contained in paragraph 14.iv.b a commitment for Azerbaijan to release or to grant a new trial to those prisoners who are regarded as �political prisoners� by human rights protection organisations, especially Mr Iskander Gamidov, Mr Alikram Gumbatov and Mr Raqim Gaziyev. The Azerbaijani authorities explicitly accepted this provision like all the others contained in the text of the Opinion. It therefore constitutes an undertaking which must be honoured.
2. The aforementioned text is the outcome of a last-minute compromise. Having been warned by various NGOs that there were numerous political prisoners and succeeded in visiting some of them in prison, I discussed this issue in paragraphs 28 to 32 of my opinion on the accession of Azerbaijan to the Council of Europe dated 6 June 2000, mentioning five names by way of an example. Two of the five were released early in June, and the release of 87 others also classed by NGOs as political prisoners followed just before the debate at the end of June 2000.
3. Nevertheless, a majority of the members of the Committee on Legal Affairs and Human Rights had initially taken the view that the release of all political prisoners was to be stipulated as a precondition for accession.
4. It should be noted � as I did in paragraph 28 of my report � that the Azerbaijani authorities have always refused to accept the use of the term "political prisoner", regarding this as a misnomer for prisoners sentenced by their courts, whom they regard as plain ordinary prisoners.
5. Having learned that an initial series of releases had just occurred, conceding the difficulty of expeditious agreement on an exhaustive list of political prisoners, and taking note of the undertaking made by the national authorities to free or retry the political prisoners, the majority of the Committee on Legal Affairs and Human Rights finally accepted that the precondition should be transformed into an undertaking.
6. Admittedly no date was set for the fulfilment of the undertaking, but it is self-evident that as long as this question remains unresolved it nurtures suspicion and distrust of the political power, jeopardises Azerbaijan�s positive image, and sours good relations between Azerbaijan and the Council of Europe. Many members of the Assembly are continually expressing their anxieties on behalf of the political prisoners and concern that they should be promptly released.
7. During the summer of 2000 and the autumn of this year, various reports of a deterioration in the material circumstances of the three principal political prisoners mentioned in the Assembly opinion, and in their treatment, reached certain members of the Committee on Legal Affairs and Human Rights. They accordingly tabled a motion for a recommendation in December (Doc. 8919, dated 2 January 2001) issuing an urgent appeal for compliance with the commitments made and recommending that the Committee of Ministers take fully into account the situation of the political prisoners before officially reaching its decision on the accession of Azerbaijan (postponed to January 2001 owing to the parliamentary elections on 5 November 2000 which were to be re-run in a dozen or so constituencies in January 2001). Following the reference of that motion to the Committee on Legal Affairs and Human Rights for a recommendation, I was appointed Rapporteur on this matter.
8. Since January 2001, I have been asked by the Committee on Legal Affairs and Human Rights at each of its meetings to report on the status of this question. The committee�s keen interest in the matter prompted it, during the April 2001 part-session, to receive Mr Mourat Sadaddinov, one of the prisoners released in June 2000 who subsequently founded an NGO entitled �Azerbaijan Foundation for Development of Democracy and Protection of Human Rights�. He provided his own testimony and a list of over 250 names of presumed political prisoners.
9. In approving Azerbaijan�s accession late in January 2001, the Committee of Ministers took steps to keep a close watch on the fate of political prisoners and generally on compliance with the undertakings made by Azerbaijan, by forming a monitoring group within its membership chaired by Ambassador Ago. The group made several visits to Azerbaijan before and after accession, especially at the beginning of July 2001. It is understood that the �Ago group� placed special emphasis on the case of the political prisoners, having reportedly submitted a list of 204 names to the authorities. We were later told that the �Ago list� was confined to 50 names. Recently the Secretariat of the Committee of Ministers informed us that strictly speaking there had never been an �Ago list�.
10. Meanwhile, early in February 2001, the Secretary General of the Council of Europe, Mr Walter Schwimmer, with the approval of the Committee of Ministers, instructed a group of independent experts to carry out an investigation concerning the political prisoners in Armenia and Azerbaijan. The experts were Professor Stefan Trechsel of Zurich University, former President of the European Commission of Human Rights, Professor Evert Alkema of Leiden University, extraordinary member of the Dutch Council of State and former member of the European Commission of Human Rights, and Mr Alexander Arabadjiev, former Judge at the Constitutional Court of Bulgaria and former member of the European Commission of Human Rights. However, upon Mr Arabadjiev�s election as a member of the Bulgarian Parliament on 17 June 2001, his participation in the group terminated on that date at his request.
11. The experts� assignment was to prepare an opinion on the various cases referred to them, including the three names in Opinion No 222 (2000), indicating �whether the persons in question may be defined as political prisoners on the basis of objective criteria in the light of the case-law of the European Court of Human Rights and Council of Europe standards�. Their opinion was to be delivered by 30 June 2001. The deadline was extended until 16 July.
12. The experts experienced many difficulties in carrying out their assignment, particularly in securing lists of persons presumed to be political prisoners with adequate information on each one (charges laid, circumstances of arrest, etc.) and in obtaining from the authorities English translations of the judgments and applicable laws. They complained of often having received, moreover tardily, only defective and sometimes unintelligible translations. As they are to be regarded as a quasi-judicial body, it was not appropriate that they should concurrently play the part of prosecutor.
13. After establishing the objective criteria on which the detainees could be considered political prisoners, the experts looked at 23 pilot cases for Azerbaijan, selected from the �Eldar Zeynalov� list named after the Director of the Rights Centre of Azerbaijan and bearing over 700 names as at 1 January 2001. They concluded that 17 of these 23 � among them the three names mentioned in Opinion No 222 (2000) - were definitely political prisoners. The experts� report, delivered in mid-July, was submitted to the Azerbaijani authorities who sent comments in mid�August.
14. Without contesting the validity of the criteria adopted, the authorities considered that, for want of full and accurate information on the cases examined, the experts had been mistaken in their assessment of the facts and the law. They therefore went on imperturbably claiming that there were no political prisoners in Azerbaijan, all prison inmates being ordinary prisoners in their view.
15. The Secretary General, wishing to give the Azerbaijani authorities the chance to draw the appropriate inferences from the report of the independent experts[2] even before it was published, decide to postpone its release.
16. The Committee of Ministers in a declaration of 21 September 2001 were gratified to learn that a pardon had been granted on 17 August to 89 political prisoners, of whom 66 had been released and 23 had their sentences reduced. However, it expressed the wish that the Azerbaijani authorities would go still further by marking the 10th anniversary of the independence of Azerbaijan on 18 October 2001 with a new gesture of reconciliation. This did not eventuate!
17. Finally, the experts� report was made public in October 2001.
18. A final meeting between the experts of the Council of Europe and of the Azerbaijan government held in Strasbourg at the beginning of November concluded that the experts had acted in a quasi-judicial capacity and that their opinion, by then published, could not be renegotiated.
19. Thereafter the problem of the alleged political prisoners was to be addressed not in a strictly legal but more in a political or humanitarian context, with a view to achieving definite results.
20. Early in November 2001, the Monitoring Committee�s rapporteurs, MM Gross and Martinez-Casan, went to Baku to carry out their fact-finding mission on Azerbaijan�s fulfilment of the undertakings accepted on its accession.
21. Obviously the political prisoners issue was raised. The rapporteurs suggested opening a new phase in the approach to this question, i.e. to examine it more from a political (or humanitarian) angle but to do so in conjunction with the rapporteur of the Committee on Legal Affairs and Human Rights.
22. Also, at our committee�s insistence the Bureau of the Assembly has placed the report on political prisoners in Azerbaijan on the agenda for the first part of the 2002 Session at the end of January.
23. However, at its meeting on 10 December the Bureau of the Assembly approved the proposal of the Committee on Legal Affairs and Human Rights to convene a meeting in Paris on 17 and 18 December between the Assembly's Rapporteurs (Monitoring Committee and Committee on Legal Affairs and Human Rights) and three members of Azerbaijan�s parliamentary delegation, in order to try a new approach to the matter.
24. According to the Bureau, this new political approach was to take account of the following considerations: i. the independent experts� opinion, even if contested by the Azerbaijani authorities, cannot be renegotiated. As far as the Council of Europe is concerned, the experts� conclusions as to the presence of political prisoners constitute a further piece of evidence in the case file; ii. the priority of securing release or retrial for the persons regarded as political prisoners.
25. On 17 and 18 December in Paris, a meeting took place between MM Seyidov and Ali Huseynov and Ms Hadjiyeva, representing the parliamentary delegation of Azerbaijan, and MM Gross and Clerfayt representing the Council of Europe Parliamentary Assembly, to finalise this new approach.
26. In brief, the delegation at first expressed concurrence with the idea of finally dispensing with an inevitably complex legal treatment of the issue and embarking on a political discussion. It did not conceal its interest in the postponement of the debate scheduled for the January part-session in order to gain more time for settling the matter satisfactorily.
27. The delegation, initially concerned that Azerbaijan was in the dock over the alleged political prisoners, had to agree that no evidence of political prisoners in other countries had been adduced and that consequently Azerbaijan was not being subjected to special treatment by the Council of Europe.
28. In the course of the meeting, the delegation handed to the Rapporteurs a letter from the Minister for Foreign Affairs reasserting that Azerbaijan would honour the undertakings made in Opinion No 222 (2000), and further stated that a list of 50 prisoners� names reportedly put forward by the Ago group was for the time being under consideration by the Commission on Pardons.
29. In addition, the delegation intimated that it wished to know the true extent of the undertakings made by the State, in view of the sometimes different not to say divergent steps taken by the various Council of Europe bodies. In other words, how many prisoners does the organisation consider should be released or granted a retrial?
30. The Rapporteur�s opinion on this question of lists of alleged political prisoners is set out in the Chapter B, paragraphs 46-49.
31. Lastly, the delegation announced the imminent ratification by parliament of the European Convention on Human Rights. This is a significant act in that the alleged political prisoners will soon be able to claim the benefit of the protection afforded by the Convention, unless the current negotiations for their release are successfully concluded beforehand. In this respect I should point out that, if the ECHR is ratified and enters into force, it cannot have a retroactive effect on past judgments.
32. For my own part, during this meeting I developed the line of argument presented in Chapter C below, and concluded by mentioning some new cases of prisoners whose fate seemed to me to warrant special attention, in particular two former ministers also imprisoned, MM Suret Huseynov and Imranov.
33. Mr Gross stressed the obligation, accepted by Azerbaijan on acceding to the Council of Europe, to release or grant a retrial to the prisoners regarded by the human rights protection organisations as political prisoners, in particular the three names mentioned. He then spoke at length about the historical and commemorative work needed to achieve national reconciliation. He asked the national authorities to appreciate that democracy attained balance in the political, parliamentary and extra-parliamentary contest and that, by providing scope for free expression of dissenting opinions, it averts violent acts.
34. The delegation from Azerbaijan displayed keen interest in our viewpoints but could not endorse all our arguments, at least not at once.
35. In conclusion, the working group agreed to continue working to assist the parliamentary delegation in its complex task of reassessing this problem and seeking a solution.
36. It was accordingly decided that I would visit Azerbaijan with Mr Gross from 26 to 29 December 2001.
B. Status of the question regarding the alleged political prisoners
37. Since the beginning of my assignment as Rapporteur for Azerbaijan�s accession on behalf of the Committee on Legal Affairs and Human Rights, it has been difficult to establish with accuracy the list of the alleged political prisoners.
38. To begin with, the authorities of Azerbaijan have consistently asserted that there are no political prisoners in their country and that the names given by various human right protection organisations are those of prisoners to be classed as ordinary prisoners, convicted of various crimes provided for in the Penal Code. In these circumstances, we cannot count on the authorities� co-operation in drawing up a list of �political prisoners�.
39. Furthermore, the various NGOs with which we have had contacts or which sent us information of their own accord have never, it is true, been able to agree together on a common list.
40. Besides, the opposition political parties represented in parliament jointly sent us a letter during the summer of 2001 stating that in their view only 52 persons could be regarded as political prisoners. Unfortunately I was not given this list. I have written �only 52� because this is far lower than the figure advanced by various NGOs, but note that it is a confirmation by parliamentarians of the presence of political prisoners.
41. It should be further observed that many opposition political parties are not represented in parliament and were not involved in writing the aforementioned letter. They consider that there are still other political prisoners.
42. The lack of a single clear and accurate list is due not only to the difficulty which NGOs and opposition members have in obtaining access to the complete facts and relevant information, but also to the difficulty of achieving consensus among all these groups since they represent different tendencies and there is of course not just one opposition as is the case in all States ...
43. Failing a generally accepted official list, it is possible to have a working paper which will be amplified as information comes in concerning new cases of alleged political prisoners.
44. That is why I have considered it preferable all along to take as an initial basis the most extensive list, ie the one drawn up by the �Human Rights Centre of Azerbaijan� (headed by Mr Eldar Zeynalov) which, during the year 2000, contained over 800 names. It is of course necessary to delete from this list the names of those released by expiry of their sentences since it was drawn up, those who have died in prison unbeknown to the compiler of the list, those released by pardon, those entered twice owing to confusion in the forenames, and those actually listed by mistake because their offence indisputably came under ordinary law (subject to verification), etc. Without the co-operation of the authorities, this list cannot be tidied up properly.
45. At all events, this list was the initial working basis on which the independent experts appointed by the Secretary General of the Council of Europe selected 23 pilot cases, stating that their conclusions should be applied mutatis mutandis to the other cases tried in the same collective proceedings.
46. It cannot be discounted that during the last few years President Aliyev and the Commission on Pardons have pardoned and released a very large number of prisoners including many of those who were presumed to be political prisoners but also others who were indisputably prisoners under ordinary law. Moreover, as a result of these decisions a number of alleged political prisoners have also received partial remission of sentence.
47. But on that score too, it is well-nigh impossible to obtain accurate figures. Indeed, in correspondence successively received either from the Bureau of the Presidency or from the parliamentary delegation (and without even mentioning letters from NGOs that contest the official figures), I have been supplied with a variety of dissimilar figures in this connection. For example, comparing the figures given in a letter received on 8 September 2001 from the Bureau of the Presidency with those in a very recent letter from the same source dated 28 December, I again discover dissimilar figures!
48. In some places there is mention of the Jurgens list (the same as the Zeynalov list); in others mine is quoted (but I myself have at no time made an exhaustive list; all I ever did was to transmit, as time went by, certain names brought to my notice which seemed to me cases worthy of interest); elsewhere, the Ago list concerning which I can finally say that the Secretariat of the Committee of Ministers could not give me confirmation of its existence! Sometimes reference is made to the list of the experts appointed by the Secretary General, etc. In each instance, we have differing lists in relation to which we are informed that X or Y names listed are the names of prisoners who have been released. So these statistics are alas extremely confused, like the frames of reference!
49. It is at any rate certain that four main series of releases which include the names of persons classed as political prisoners by the NGOs took place firstly at the beginning of June 2000 (87 released), then on 5 October 2000 (41 released), on 28 December 2000 (30 released) and again on 17 August 2001 (26 released). I reiterate that my June 2000 report already recorded a few earlier instances of release. In addition, for two of the five names quoted as examples in my report, release preceded the debate on accession at the end of June, and three journalists had just been freed in November 2001.
50. I therefore consider plausible and credible the claim that the exact number of alleged political prisoners released since the end of 1999 must be in excess of 190. A number of them have furthermore had their sentences reduced, often by half.
51. It should be noted for example that the final series in August 2001 included six of the 17 cases recognised by the independent experts as political prisoners, while for a seventh the sentence was reduced by half.
52. All this is by no means insignificant and should be duly appreciated. It is clear that the Azerbaijani authorities have made an effort to meet the demands of the Council of Europe. Nonetheless (late December 2001) there must still be a probable minimum of 500 cases of alleged political prisoners remaining in prison, or at all events cases of prisoners for whom the nature, cause and circumstances of imprisonment, indeed their no doubt unjust fate, are of concern to the Council of Europe. These cases will have to be reviewed sooner or later.
53. As the Secretary General of the Council of Europe has fittingly declared, one political prisoner is one prisoner too many!
54. Yet the three prisoners mentioned in Opinion No 222 (2000), who have become emblematic cases, are still in prison at the time of writing but according to the latest information the authorities have decided on a retrial for Mr Iskander Hamidov.
55. Since June 2000, whenever the issue of the alleged political prisoners has been raised, the Azerbaijani authorities have invariably given assurances that they would honour all their undertakings. It would be as well, in Azerbaijan�s own interest, for this to come about as speedily as possible in the matter under discussion.
My political viewpoint
56. This is not only a legal problem but a political one. My principle is that there must not be a single prisoner, in any Council of Europe member state, whom we consider to be unfairly or unduly held in prison when their detention is not justified ethically or in the light of all our European standards.
57. I have nothing to gain by blindly insisting that there are political prisoners in Azerbaijan just so that I can protest and express my indignation. If there are no political prisoners (or no longer any political prisoners) in Azerbaijan, so much the better!
58. I do not want to embark on a dogmatic legal debate as to the exact definition of the term political prisoner and whether there are any prisoners in Azerbaijan who fit that description. That is a more academic problem. Debating it until we are blue in the face will get us nowhere. As far as I am concerned the opinions, criteria and conclusions of the independent experts as to who should or should not be considered as political prisoners cannot be questioned.
59. My purpose is to secure the release of (or a new trial for) all those people I believe are being unjustly held in prison according to my conception of a law-abiding democratic state, as developed by the Council of Europe over the last fifty years and by the European Court of Human Rights in Strasbourg.
60. What I want is quite simple. I want a whole series of people who are currently held prisoner � no matter how we label them � to be set free. And I want this for the following reasons.
61. A democratic state is a state where governments come to power without violence, freely elected by the people, on the strength of information and opinions freely expressed in the media, in open, fraud-free elections from which no parties or candidates are arbitrarily excluded.
62. A democratic state is a state subject to the rule of law, where judges are truly independent. This means that persons accused of crimes should be presumed innocent, given a fair hearing and not subjected to torture; that they should be assisted by a lawyer who has full access to the case file and is free to plead their case; that convictions should be based on clear and proper grounds and on irrefutable evidence; that penalties should be in proportion with the offence, and that judges should be free to reach their own decisions in all good faith, without receiving orders from anybody � which is not the case of military judges � and without fear of reprisals from those in power.
63. At the time of the events and the arrests, from 1990 to 1996, and subsequently, when the cases were brought to trial and sentences pronounced which led to a number of prisoners in whose fate we are interested being kept in prison, Azerbaijan was going through a period of post-communist transition, on the way to becoming a democratic state. But Azerbaijan was not yet a democratic state by the Council of Europe�s standards.
64. None of what was happening at that time �in the political arena or in judicial proceedings � was compatible with those standards.
65. Nobody can say that what happened then was fair and proper, in keeping with the law and with European democratic principles and therefore not open to objective criticism. This applies both to the political situation and to the trials.
66. Pages 13 to 20 of the election observation handbook prepared by the OSCE/ODIHR for the November 2000 general elections contain an excellent summary of the history of Azerbaijan. I shall base myself here on pages 17 to 19, which retrace the recent history of the Republic of Azerbaijan (1991-2000), drawing additional information where necessary from other sources.
67. After 19 January 1990, when the Red Army and its tanks invaded Baku, leaving 131 dead and 700 wounded, most of them members of the Popular Front Party, Ayaz Mutalibov became First Secretary of the Communist Party and restored order, arresting several Popular Front Party leaders in the process. The September-October 1990 elections were won by the Communist Party by a comfortable margin, but the result was strongly disputed by the opposition parties.
68. The current President, Heydar Aliyev, who was leader of Azerbaijan for many years under the Communist regime and, after falling from grace for a few years at the end of the 1980s, became President of the Nakhichevan parliament in 1990, became increasingly critical of Mutalibov. Mutalibov won the presidential election in autumn 1991, however, and the Communist Party was dissolved.
69. Azerbaijan declared independence on 18 October 1991.
70. Early in 1992 the country experienced serious political problems and President Mutalibov fled to Russia. Abufaz Elchibey, leader of the Popular Front Party, the main opposition party, won the ensuing presidential elections on 7 June 1992 by a very narrow margin. It should be noted that a law passed at the last minute prevented Heydar Aliyev from standing for election because he was over 65 years of age!
71. A struggle for power ensued between the supporters of Mutalibov, Elchibey and Aliyev, while war raged in Karabakh. In the wake of military defeats, Defence Minister and former Popular Front Party leader Raqum Gaziyev was arrested!
72. In January 1993 Colonel Surat Husseynov led a rebellion in Ganja and marched on Baku. To strengthen his position he invited Heydar Aliyev, who had remained in Nakhichevan, to Baku, and in mid-June Heydar Aliyev was elected President of the parliament (Milli Meclis). President Elchibey fled to Nakhichevan (from where Heydar Aliyev had come) and Aliyev took his place; this change of power was ratified by parliament a month later.
73. Colonel Husseynov, who had taken control of Baku, was appointed Prime Minister.
74. Heydar Aliyev won an easy victory in the new presidential elections in October 1993.
75. Meanwhile, in the summer of 1993 Popular Front Party leader Alikram Gumbatov had attempted to declare an independent Talysh Mughan Republic on Azerbaijan�s south-eastern border with Iran, but his attempt had failed and Mr Gumbatov had been arrested.
76. At this time, before and after Heydar Aliyev's election to the Presidency, there were several attempts on his life and attempted coups, by Popular Front Party members in particular, which led to over 100 arrests.
77. In September 1994 two important prisoners, Gaziyev and Gumbatov, escaped from the Ministry of Security prison in the �generals� coup� and more than 20 people were arrested.
78. In October 1994 Colonel Husseynov's followers attempted a coup d'�tat in Ganja and Mingechevir. Over 200 people were arrested. Husseynov fled to Russia. There were also disturbances in Sharur, where at least 26 people were arrested.
79. In March 1995 the OPON special police units staged an uprising to demand political changes. The army quelled the rising and over 600 people were arrested.
80. 1995 witnessed more attempts on President Aliyev's life. A bomb was discovered under a bridge in Baku. Members of the armed forces suspected of plotting to shoot down the President's plane were arrested.
81. On 12 November 1995 the first general elections were held, resulting in a comfortable win for the President's party. However, the opposition and international observers voiced serious criticisms about the fair and democratic nature of the elections.
82. The presidential election of 11 October 1998, which President Aliyev easily won, was also criticised, as were the first municipal elections, held on 12 December 1999, and, albeit to a lesser extent, the November 2000 general elections, when a second ballot was fortunately organised in a dozen constituencies in January 2001 following the annulment of the first ballot.
83. It should also be noted that Mr Rasul Guliyev, a former president of parliament who fled to the United States in 1997, was accused of embezzlement, judged in absentia and sentenced in March 2000, along with several accomplices who are still in prison today.
84. Furthermore, high-profile fugitives Gumbatov, Gaziyev and (former Prime Minister) Husseynov were all extradited from Russia with no regard for international regulations governing extradition and are now in prison.
85. This summary of contemporary history clearly shows that since Azerbaijan�s independence the struggle for power has made use of violence (coups d��tat, assassination attempts, etc) and election rigging. The years 1992 to 1995 were crucial civil war years.
86. Another way of summarising these events is to say that the present regime is the result of a coup d��tat in June 1993 which overthrew the Popular Front government, which had itself come to power in the wake of the coup in May 1992.
87. The coup attempt in October 1994 was the result of a split between the participants in the rebel coalition of June 1993.
88. The failed coup of May 1995 was the result of a conflict between the President and the forces which helped him put down the 1994 coup attempt. The Popular Front activists who were eliminated in Nakhichevan in 1993-1995 were those who had helped Heydar Aliyev become leader there in 1990.
89. In brief, therefore, violence bred ever more violence, as is often the case in a civil war.
90. In this period of democratic transition, winners and losers alike all resorted to means that were often violent and were certainly not in keeping with democratic principles.
91. At least ten key ministers from previous governments were imprisoned and four remain in prison to this day (Gaziyev, Gamidov, Imranov and Suret Husseynov), together with many supporters or members of the police or the armed forces and friends and relations of theirs who allegedly helped them.
92. It is true that President Aliyev had to deal with numerous violent destabilisation attempts. His opponents were by no means angels and their methods were unacceptable, but their motives were political.
93. They had no notion of normal, democratic rules of play, of what could or could not be done to win power � nobody did. They had picked up the bad habits of the former regime of which they were the heirs. During the period concerned (1990-1996) the struggle for power was a spiral of violence far removed from the democratic path.
94. Now that Azerbaijan has genuinely set out along the path to democracy in the last two years or so, should the losers of the earlier struggles for power be made to go on paying indefinitely for their failures and their mistakes?
95. Naturally, if the answer is to be no, we must be sure that they too are ready to forswear violence and anti-democratic methods.
96. If they are still in prison today, five or seven years later, have they not paid their due? Especially if one considers that the judicial process that put them there was not exactly in conformity with Council of Europe standards.
97. The Azerbaijani authorities argue that the alleged political prisoners are guilty of crimes and acts of violence, including acts of terrorism, assassinations, kidnappings, illegal detentions, secession attempts, illegal possession of weapons and so on, and that it is only natural that they should have been convicted and sent to prison.
98. Since the events of 11 September 2001 they even have the audacity to use the European Convention on the Suppression of Terrorism to back their argument that �political motives� are no justification for such acts.
99. Even if many of those now in prison whose fate is of interest to the Assembly did commit serious offences � although not all of them did; some are in detention simply because they are friends or relations of the offenders � what they did must be appreciated in the light of the political context at the time. And to appreciate the suitability of the sentences, which in some cases were death sentences - although these were fortunately commuted to life imprisonment following the abolition of capital punishment - and in other cases 10-, 12- or 15-year sentences, one must consider the quality of the judicial proceedings concerned.
100. Who would dare say that all the offenders were given a fair trial in keeping with the standards of the Council of Europe and the European Court of Human Rights? They were given no such thing at the time, not until the year 2000 at least.
101. The sentences were handed down on the strength of the Soviet criminal code which was in force until recently, and the trials were held under the Soviet Code of Criminal Procedure, also in force until recently. The police, investigators, public prosecutors and judges had not yet changed their mentalities, their methods or their habits.
102. Many of the prisoners we are talking about claim that they were tortured � which is unacceptable � and that they were not properly defended by independent lawyers who had been duly informed of the charges against their clients and given access to their files in time to prepare their defence. Some were tried without a lawyer.
103. As a rule the accused were not presumed innocent until proven guilty. Some were illegally extradited in violation of international regulations governing extradition. Gaziyev was tried in absentia and when he was handed over by the Russian authorities in violation of extradition regulations, he was sent directly to prison without a new trial.
104. Who can certify that the judges were independent and not merely obeying orders from above when even today efforts to achieve a truly independent justice system have not been completely successful? In some cases the judges concerned were actually military judges!
105. Azerbaijan has just reformed its Criminal Code and its Code of Criminal Procedure. It has reformed the judicial system and introduced a new system for selecting and appointing judges. Based on the new Codes, firm instructions have now been issued to prohibit torture! If all this has been done it must have been necessary!
106. This means that the fairness of the trials held and the appropriateness of the sentences handed down previously, in the days when most of the alleged political prisoners were tried, are open to question.
107. All these prisoners are victims of a political problem dating back to a time when the country was in the process of transition to democracy but not yet the democratic state it is now well on the way to becoming with every passing day. Furthermore, the motives driving the political figures now in prison were political motives concerned with the struggle for power.
108. That is why the Assembly believes they should be released: after all these years in prison in harsh conditions (living conditions in prisons have only recently improved) they have paid enough for their mistakes, the seriousness of which is mitigated by their ignorance of democratic principles, which even governments were not particularly wont to observe at the time.
109. Should they be released or given a new trial? Opinion No 222 (2000) envisages the latter possibility.
110. If new trials are held, of course, the recently introduced reforms, which make more ample provision for the rights of the defence and the presumption of innocence, must be applied. And Council of Europe observers should be allowed to follow the new trials.
111. However, new trials mean new investigations in order to prepare a proper case, without resorting to torture, and setting aside any previous confessions obtained through torture.
112. Is this technically possible? Is it not unnecessarily costly and time-consuming?
113. Is it really a good idea in political terms to open up old wounds, stir up past events that are nothing to be proud of and rekindle old quarrels?
114. Is it not wiser, in the interest of national reconciliation, to bury the hatchet and let bygones be bygones, to put our best foot forward and start again from scratch in a democratic spirit? Surely the last thing we want is more violence.
115. Democracy thrives on free discussion to enhance and develop prevailing ideas. Governments need constructive criticism. If the opposition play by democratic rules and refrain from using violence they become not enemies but partners in the search for better solutions for the country. It is for the people to freely choose their government, in a well-informed manner, in free and fair elections.
116. I personally believe � and I am sure many other members agree with me � that it would be wiser not to hold new trials.
117. The wisest solution and the best for the future is to release those prisoners considered as political prisoners, thereby heralding the emergence of a new, genuinely democratic political regime.
118. Today�s leaders fear political unrest, new upheavals? On the contrary, a general amnesty will defuse some of the existing tension and strengthen the emerging democracy.
119. Who better than the team in power to put a stop to the spiral of violence and make it known, by this spectacular gesture, that the country has stepped squarely into the democratic era?
120. It is a lesson of history that, when the battle is won, the victors are ennobled and enjoy more prestige and enhanced legitimacy if they show mercy to their erstwhile enemies.
Baku, 26-29 December 2001: progress made?
121. I visited Baku from 26 to 29 December 2001 with my Swiss colleague Andreas Gross, Rapporteur for the Monitoring Committee, Egbert Ausems, Head of the Secretariat of the Monitoring Committee and David Ćupina, Deputy Secretary of the Committee on Legal Affairs and Human Rights.
122. Together we formed an excellent, close-knit team, and I thank them sincerely for their co-operation.
123. I wish to underline the relevance and efficacy of Andreas Gross's remarks concerning what the authorities should do to guarantee their legitimacy with a view to ensuring political stability based on national reconciliation.
124. In the course of our visit we first had meetings with a number of NGOs active in the field of human rights and defence of political prisoners. In some cases we had long been in contact with these organisations, whereas others were known to us only by name. These NGOs provided us with a new list of political prisoners and various useful additional items of information. General Gazimov, Deputy Minister for Justice and head of the prisons service, also kindly arranged for us to visit the women's prison, where we had meetings with two women, Ms Galina Lebedeva and Ms S�nmez Sikhmaz, regarded as political prisoners by a number of NGOs, whose imprisonment had recently come to our notice. We naturally raised their cases with our Azerbaijani correspondents.
125. Above all, we had a number of meetings with the Speaker of Parliament, Mr Aleskerov, whom we thank for having received us, and with the Azerbaijani delegation to the Parliamentary Assembly, led by Mr Ilham Aliyev.
126. We also had talks with Mr Ramiz Mehdiyev, Head of the President's Office, and his right-hand men, Mr Fuad Aleskerov and Mr Shahin Aliyev, with whom we have long been on excellent terms.
127. The discussions were lively and sometimes tense. We spoke quite frankly. Our correspondents were naturally aware that our aim was to help Azerbaijan make progress on the road to democracy and appreciated this.
128. As a result our talks ended in a climate of mutual understanding and friendship. I regret, however, that the parliamentary delegation did not sufficiently support the point of view of the Parliamentary Assembly of the Council of Europe in our contacts with the authorities of the country.
129. Lastly, President Aliyev granted us a long interview and reiterated his determination that Azerbaijan should honour all of its commitments towards the Council of Europe. By way of example, he expressed satisfaction that parliament had recently authorised the government to ratify the European Convention on Human Rights and a number of its protocols.
130. In particular, he confirmed that he was about to sign a new series of pardons, entailing the release of many prisoners, and he promised to consider with leniency the "little more" (see paragraph 149) we asked of him. We set out below the details of what was achieved by our visit.
131. All of the Azerbaijani authorities with whom we had meetings pointed out that the situation was very difficult for their country, since the Nagorno-Karabakh problem had still not been settled and 20% of Azerbaijan was consequently occupied by Armenian troops. At the same time, the country had to take care of hundreds of thousands of refugees from Armenia or displaced persons from the occupied territories. The figure of one million people was sometimes advanced without hesitation. This constituted a heavy burden and a major political problem, which was not conducive to the taking of bold, reassuring decisions.
132. Furthermore, all of the officials with whom we had discussions voiced concern about fair treatment of their country by the Council of Europe, in other words their failure to comprehend what could be perceived as hounding of Azerbaijan on the subject of political prisoners, whereas, in their opinion, similar cases must exist in several other member states, in particular neighbouring countries or other now-independent, former members of the USSR, and the Council of Europe did not appear to be concerning itself with those cases!
133. There is naturally no question of any excess zeal on the part of the Council of Europe, which treats all information received concerning its member states in the same way. *
134. Progress made?
135. With regard to the three now symbolic figures mentioned in Opinion No (2000), namely Iskander Gamidov, Alikram Gumbatov and Raqim Gaziyev, we were told that it had recently been decided to grant each of them a new trial. At the beginning of January 2002, I received the text of the appeal for the organisation of a new trial, signed by the General Prosecutor on 26 December 2001. I am waiting for written confirmation of this. This decision is unquestionably a step towards compliance with Azerbaijan's commitments to the Council of Europe.
136. That said, on the question of any new trial, I stand by the opinion I expressed in paragraphs 109-120 above, viz. that it is not the best possible decision in the country's interests. On the contrary�
137. What is more, during the Assembly debate on accession in June 2000 Mr Goulet, a member of the French Senate, asked me about the meaning of the phrase "to release or to grant a new trial" and I explained at the time that the prospect of a "retrial" mainly concerned Raqim Gaziyev, who had been convicted in absentia and subsequently imprisoned after being extradited from the USSR.
138. It can therefore be asserted that the intention of your Rapporteur to secure the release of the first two prisoners named above and a retrial only in Mr Gaziyev's case.
139. In addition, it is an established fact that prisoners can be released on humanitarian grounds, such as health or family reasons, and there is no question that the health of these prisoners, above all the first two, is extremely poor.
140. There is of course nothing to prevent the Azerbaijani authorities from reviewing their decision, if they do so in the prisoners' favour.
141. A new series of amnesties and pardons was indeed signed by the President on 29 December 2001. 57 prisoners were released, including 29 regarded as political prisoners by the NGOs, eight unknown to the NGOs (perhaps ordinary prisoners) and 20 deserters. None of the prisoners on the experts' list was released. Moreover, 29 reductions of sentences (probably by half) were granted, including to 23 people regarded as political prisoners by the NGOs, four unknown to the NGOs (perhaps ordinary prisoners), no deserters and two prisoners on the experts' list (cases No. 16 Abdullayev and 21 Samedov).
142. I have to say that this outcome is disappointing and falls short of our expectations.
143. Following these measures, the total number of presumed political prisoners pardoned and released since the end of 1999, that is to say since the Council of Europe began to exert pressure, must be in the region of 220.
144. This must of course be taken into account when assessing the problem dealt with in this report, but the most recent series of measures in December 2001 was far from impressive � much less decisive. There must still be some 500 cases to be reviewed and therefore, doubtless, some 500 people whose release has yet to be obtained!
145. Before being informed of the names of those concerned by the latest releases announced to us, we made it clear to the authorities that a serious immediate problem would continue to arise vis-�-vis the Council of Europe, if the persons regarded as political prisoners by the independent experts were not included. Although the authorities refuse the use of the term "political prisoner", they cannot be unaware that, having read the experts' conclusions, the members of the Parliamentary Assembly and probably also of the Committee of Ministers consider these prisoners as additional cases worthy of interest and necessitating a prompt decision on release, failing which they will become as symbolic and important as the three prisoners named in Opinion No 222 (2000).
146. It is true that the releases ordered in August already concerned six of the seventeen people regarded as political prisoners by the experts. That therefore left eleven, including the three names mentioned in Opinion No 222 (2000). We asked that they be released, or at least six of them who, we believe, could be released without posing insuperable difficulties for reasons which it would take too long to set out here.
147. This concerns cases Nos. 12 (Ramazanov), 14 (Imranov), 16 (Abdullayev), 17 (Guseynov Suret), 18 (Safikhanov) and 25 (Guseynov Guseynbala) on the independent experts' list, including the former Prime Minister, Mr Suret Husseynov, the former Minister of State Security, Mr Nariman Imranov, and the former Head of the Interpol bureau, Mr Ilgar Safikhanov.
148. When, during our interview with the President, we thanked him for the decisions taken and requested a "little more", which he promised to consider with leniency, we in fact had these prisoners in mind.
149. However, the request also concerned a number of cases which had not been mentioned but which we raised ourselves, in particular those of: Mrs Galina Lebedeva, convicted and sentenced in 2000 as an accessory to the frauds allegedly committed by Mr Rasul Guliyev; Mr Janmirza Mirzoyev, recently convicted and sentenced for an alleged murder in 1993 whereas his real "crime" is doubtless denouncing corruption within the Ministry of Defence in his capacity as an officer in the armed forces; and of Mr Muzakir Abdullayev, a businessman and the brother of a former minister released in 1999 on humanitarian grounds, whereas he is still serving a ten-year prison sentence. We also brought up the case of those convicted, in 2001, in the �Sheki case� who were allegedly tortured and received a sentence (6-8 years) clearly disproportionate with the acts of which they were accused (a demonstration ending in a riot with material damage).
150. During a more detailed discussion with Mr Mehdiyev, Head of the President's Office, we did not hide the fact that, failing a favourable decision, i.e. release, in those cases, or at least a number of them, it would be difficult for us to present the progress made on the matter of the presumed political prisoners as really adequate.
151. I was waiting for further information on this subject, which I had hoped to receive before the meeting of the Committee on Legal Affairs and Human Rights in Paris on 7 January 2002. Alas at that date I had not received any information on this matter.
152. Lastly, since Opinion No 222 (2000) gave only three names as examples (thus mentioning particularly important cases) but called for the release of all prisoners regarded as political prisoners by human rights protection organisations, it goes without saying that the decision to release the 29 prisoners named cannot suffice.
153. It is true that, as a result of the different series of pardons and releases carried out over the past two years, we have been able to note that some 220 prisoners of this type have been freed.
154. Nevertheless, we believe that there are still very many prisoners whose cases must be reviewed. As stated in paragraphs 46-49 of this report (Chapter B), it is extremely difficult to get a clear idea of the situation regarding the lists of presumed political prisoners and we cannot hope to succeed without the authorities' co-operation.
155. While in Baku, we therefore requested the establishment of a joint working group consisting of representatives of the Parliamentary Assembly of the Council of Europe (such as the Rapporteurs who began the work), representatives of the Azerbaijani parliament and representatives of the President's Office, including its head, Mr Ramiz Mehdiyev who is also Chairman of the Commission on Pardons, with the aim of clarifying and cleaning up the various lists and determining, on an inter partes basis, the number of cases still to be reviewed (and the exact names of the people concerned), so as to settle the matter of the political prisoners. We shall provide the names of prisoners known to us, along with the information in our possession concerning each case, hear the Azerbaijani representatives' replies and decide which cases should, in our opinion, be reviewed by the Commission on Pardons.
156. As provided in the European Convention on Human Rights, which Azerbaijan has now ratified, where an individual appeals to the Court alleging a violation of human rights, it is for the respondent state to prove that it did not commit any breach of the Convention.
157. Similarly, in the event of a complaint through political channels, for instance concerning the existence of presumed political prisoners, the respondent state must show, on a case-by-case basis, that the persons concerned are not political prisoners. If it fails to do so, the names will be included on the list to be submitted to the Commission on Pardons.
158. At the request of the Azerbaijani authorities, it has been stipulated that this working group will not draw any prior conclusions that prisoners can be equated with one another, even where a number of prisoners were sentenced and convicted in the same collective trial, but will examine each case individually.
159. The principle of establishing this joint working group has been accepted orally, first by Mr Mehdiyev and then by the President. I am waiting for written confirmation.
160. This is an important decision, which will make it possible to settle the question of the presumed political prisoners once and for all, even if that is likely to require a number of meetings and to take some time.
Provisional conclusions
161. The Council of Europe and, in particular, the Parliamentary Assembly cannot accept that people should be imprisoned primarily for political reasons, that political opponents, members of their families and supporters should be deprived of their liberty and that this should be the outcome of trials and judgments disregarding the standards of the Council of Europe and the European Court of Human Rights.
162. In the interests of reconciliation and, hence, of stabilisation of democracy in Azerbaijan and to normalise relations between this member state and the Council of Europe, the best solution would be a general amnesty for all those who, in the Council's opinion, are unjustly being kept in prison.
163. To begin with, Azerbaijan must release two of the three prisoners named in Opinion No 222 (2000), Mr Gumbatov and Mr Gamidov, and, at least, grant a retrial to the third, Mr Gaziyev. It should then free the eight people identified as political prisoners by the independent experts who are still in prison and, lastly free Ms Lebedeva, Ms Sikhmaz, Mr Muzakir Abdullayev, Mr Janmirza Mirzoyev and Mr Aydin Shirinov (the "little more" requested in Baku).
164. If these conditions are fulfilled before the meeting of the Bureau on 21 January 2002 it will still be possible to postpone the debate to a part-session later this year.
165. The intervening period could then be used to hold a number of meetings of the tripartite working group in Baku, so as to draw up a list of presumed political prisoners for review by the Commission on Pardons.
166. Should the conditions not be met by 21 January 2002, postponement of the debate would not be a viable alternative, and appropriate means of political pressure will have to be brought to bear in the face of the insufficient political will shown by the Azerbaijani authorities, including the parliamentary delegation of Azerbaijan to the Parliamentary Assembly of the Council of Europe.

Reporting committee: Committee on Legal Affairs and Human Rights
Reference to committee: Doc 8919 and Reference No 2565 of 26 January 2001
Draft resolution adopted by the committee on 7 January 2002 with 24 votes in favour, 2 votes against and 1 abstention
Members of the committee: Mr Jansson (Chairperson), Mr Magnusson, Mr Frunda, Mrs G�lek (Vice-Chairpersons), Mr Ak�ali, Mr G. Aliyev (alternate: Mr A. Huseynov), Mr Arabadjiev, Mrs van Ardenne-van der Hoeven, Mr Attard Montalto, Mr Bindig, Mr Brejc, Mr Bruce, Mr Bulavinov, Mr Chaklein, Mr Clerfayt, Mr Contestabile, Mr Demetriou, Mr Dimas, Mr Enright, Mrs Err, Mr Floros, Mrs Frimansd�ttir, Mr Fyodorov, Mr Guardans, Mr Gustafsson, Mrs Hajiyeva, Mr Holovaty, Mr Irtem�elik, Mr Jaskiernia, Mr Jurgens, Mr Kelemen, Lord Kirkhill, Mr Kostytsky, Mr S. Kovalev, Mr Kres�k, Mr Kroupa, Mrs Krzyzanowska, Mr Lac�o (alternate: Mrs Aguiar), Mrs Libane, Mr Lintner, Mr Lippelt, Mr Manzella, Mrs Markovic-Dimova, Mr Marty, Mr Mas Torres, Mr Masseret, Mr McNamara, Mr Michel (alternate: Mr Hunault) Mr Moeller (alternate: Mrs Auken), Mrs Nabholz-Haidegger (alternate: Mr Reimann), Mr Nachbar, Mr Olteanu, Mr Pellicini, Mr Penchev, Mr Piscitello, Mrs Postoico, Mrs Roudy, Mr Rustamyan, Mr Simonsen, Mr Skrabalo, Mr Sol� Tura, Mr Spindelegger, Mr Stankevic, Mr Stoica, Mrs S�ssmuth, Mr Svoboda, Mr Symonenko, Mr Tabajdi, Mr Tallo, Mrs Tevdoradze, Mr Uriarte, Mr Vanoost, Mr Vera Jardim, Mr Volpinari, Mr Wilkinson, Mrs Wohlwend, Mr Wojcik, Mrs Wurm (alternate: Mrs Stoisits)
N.B. The names of those members who were present at the meeting are printed in italics.
Secretaries to the committee: Ms Coin, Ms Kleinsorge, Mr Ćupina