How We Identify and Assess the Political Nature of Persecution

ACPR Methodology

What Is Political Persecution?

Most human rights are not absolute; under certain circumstances they may be lawfully limited. A lawful reason can be, for example, the necessity to protect the rights of others.

Political persecution is any restriction of rights, any pressure on a person, or the creation of additional obligations that is carried out for political motives.

Who Carries Out Political Persecutions?

Since political persecution is a type of non‑lawful limitation of human rights, it can be carried out by the state or must be attributable to the state. In other words, political persecutions can be carried out by:

1. Authority – officials and state bodies,
2. Any other entity whose actions are encouraged, incited, organized, or directed by the authority.

What Drives Political Persecution?

The drivers of political persecution can vary. Their purpose, as a rule, is to create a more “favourable” situation for those in power – to reduce criticism, weaken political opponents, consolidate power, etc.

From the standpoint of the impact on a person or a group, political persecutions may aim to:

1. Limit, reduce or hinder his/her or other persons’ participation in political processes.
2. Limit, reduce or hinder his/her or other persons’ political speech, as well as to force them to change (censor) their political speech and behavior, including criticism.
3. Punish for political speech, behavior or beliefs.

Who Is the Victim of Political Persecution?

The victims of political persecution are often critics of the authorities or political opponents. However, the crucial factor is not the status of the person, but the real political motive behind the restriction of their rights. Accordingly, the victim of political persecution can be:

1. Any individual or group whose rights are violated or limited for political reasons.
2. Any individual whose rights are violated or limited to exert political pressure on another person.

Whether a person considers a persecution “political” is not itself a basis for classifying it as such. Nevertheless, following the principle of non‑harm, the opinion of the prosecuted person or their defence counsel should be taken into account if publicising the persecution could lead to immediate adverse consequences.

How Do We Analyse the Political Motive Behind a Persecution?

To assess the existence or absence of a political motive behind a persecution, one must compare the restriction of rights with the relevant legal standards, the facts of the case, and the context of the persecution.

According to contemporary international standards, a person’s right may be restricted only when all three of the following conditions are simultaneously met:

1. The restriction is prescribed by law,
2. It pursues a legitimate aim,
3. The restriction is necessary in a democratic society.

In other words, even if a restriction is prescribed by law, if its aim is not legitimate, we are dealing with a violation of rights.

Evaluating the aim (purpose) of a restriction is precisely the analysis of whether a political motive is present. If the purpose is primarily political rather than based on a legitimate ground, political persecution is present.

Legal Sources for Analysing Political Persecution

The described approach stems from Article 18 of the European Convention on Human Rights (ECHR) and the Court’s case law. This article guarantees protection against the abusive exercise of power by the authorities.

Article 18 – Limitation on use of restrictions on rights

The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.

According to the three‑part test, any restriction of a right, apart from those prescribed by law and necessary in a democratic society, must pursue a legitimate aim. For each right, the Convention lists permissible legitimate aims in the second paragraph of the relevant article.

Example:

Article 9 – Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

The second paragraph’s “interests of public safety, for the protection of public order…” clause defines the legitimate aims that justify a restriction. If the authorities limit religious freedom citing national security – a purpose not listed in Article 9(2) – the legitimate aim is absent. Consequently, the Convention’s Article 18 requirement – “The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed” – would be violated.

Until 2017, the European Court of Human Rights (ECtHR) interpreted Article 18 of the Convention narrowly. In other words, a violation of Article 18 was established where it followed directly from the facts of the case that the purpose of restricting a right was other than that prescribed by the Convention. For example, in the 2004 case of Gusinski v. Russia, a major shareholder of a media company indebted to Gazprom was detained on charges of fraud. Subsequently, Gusinskiy was offered the opportunity to have the criminal proceedings discontinued in exchange for transferring his shares to Gazprom, which he agreed to do. The ECtHR concluded that the purpose of the prosecution was not to uncover the alleged fraud, but rather to secure the completion of the commercial transaction.

The “rebirth” of Article 18 of the Convention came in 2017 with the case of Merabishvili v. Georgia. In its judgment, the European Court articulated a new test for determining the existence of an “ulterior purpose” behind a restriction on a right. The other, illegitimate purpose must be the predominant one behind the restriction, but it need not be the only one.

To determine whether a political motive is present, the following factors are essential:

1. The circumstances of the case – timing, duration, nature of the persecution, the status of the person, statements by officials, the specificity of the allegation, etc.
2. The broader environment – the political and legal context, the judiciary’s independence from the executive, etc.

The ECtHR’s case‑law regarding these criteria is available in the Guide to Article 18.

Manifestations of Political Persecution: “Politically Persecuted” and “Political Prisoner”

As described above, a restriction of a right whose predominant purpose is driven by political motives constitutes political persecution. In the context of criminal proceedings, it may or may not involve deprivation of liberty, depending on the preventive measure imposed.

According to the definition of a political prisoner developed by the Parliamentary Assembly of the Council of Europe in 2012 (Resolution 1900 (2012)), a person is considered a political prisoner if they have been deprived of their personal liberty as a result of any of the following conditions:

• The person was deprived of liberty in violation of a fundamental right,
• The deprivation of liberty has no relation to any offence,
• The length or conditions of detention are disproportionate,
• The detention is arbitrary,
• The trial is unfair.

The Resolution is available on the PACE website.

Is House Arrest a Form of “Deprivation of Liberty”?

According to ECtHR case‑law, house arrest, given its severity and intensity, is considered deprivation of liberty under Article 5 of the Convention (see, among many others, Mancini v. Italy, no. 44955/98, §17, ECHR 2001‑IX; Lavents v. Latvia, no. 58442/00, §§ 64-66, 28 November 2002; Nikolova v. Bulgaria (no. 2), no. 40896/98, § 60, 30 September 2004; Ninescu v. the Republic of Moldova, no. 47306/07, § 53, 15 July 2014; and Delijorgji v. Albania, no. 6858/11, § 75, 28 April 2015).

Since the 1900 resolution defines a political prisoner as someone deprived of his or her personal liberty, a person subjected to house arrest for political reasons is a political prisoner.