The Political Prisoner: "Who" Are They?!

The term "political prisoner" is so widely used in the media space that, in some cases, its true substance remains unknown. I will try to legally point out what a political prisoner means. At the same time, despite the impossibility of a single definition for this term, I am deeply convinced that it is not a strictly legal term but rather an evaluative category accompanied by a political nuance. To this day, the Georgian court has not provided a comprehensive definition of the term (I am referring to terms such as political prisoner, political exile/persecuted person, etc.). Regarding the legislative aspect, on December 28, 2012, the Parliament of Georgia adopted the Law on Amnesty and, on the same day, adopted the resolution "On the Situation of Protection of Human Rights and Freedoms in Georgia in 2012." Interestingly, the Law on Amnesty itself relies on the Parliamentary Assembly of the Council of Europe (PACE) Resolution 1900 (2012). Based on this, it declares that, applying the criteria adopted by this resolution, it is possible to determine whether a person can be considered a political prisoner or not;

This resolution was discussed at the 33rd sitting of the Assembly in 2012, based on the report of the Committee on Legal Affairs and Human Rights (Document 13011). The work on it began back in 2001, prompted by the accession of Armenia and Azerbaijan to the Council of Europe (the 1989 civil war in Namibia also had an influence). This resolution establishes criteria for recognizing a person as a political prisoner; in other words, applying the term to a person (whether they are a political prisoner) must be done when these criteria are met.
These criteria state: "A person deprived of their personal liberty is to be regarded as a 'political prisoner' (first of all, attention must be paid to the deprivation of personal liberty) if:
a) 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, in particular freedom of thought, conscience and religion, freedom of expression and information, freedom of assembly and association (this term is subject to broad interpretation; moreover, it is noteworthy that recognizing someone as a political prisoner requires a certain trait for which they might be persecuted—be it thought, religion, or freedom of expression);
b) the detention has been imposed for purely political reasons without connection to any offence (i.e., in the case of committing a crime, the context of course matters: the deprivation of liberty was carried out purely because of politics disguised as a crime);
c) 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 (i.e., if a person committed a less serious crime but received a sentence designated for a particularly serious crime);
d) for political motives, he or she is detained in a discriminatory manner as compared to other persons (that is, compared to other persons means that a person detained for the same crime might have access to items or services that the individual in question is denied, and this prohibition has no reasonable justification); or 
e) the detention is the result of proceedings which were clearly unfair and this is connected with political motives of the authorities (for this clause, several factors must be present: first, liberty must be deprived; second, the deprivation of liberty must be the result of a judicial proceeding; third, the court proceedings must not just be unfair, i.e., violating the right to a fair trial, but the violation must be clear and obvious, and these violations must be caused by the political motives of the authorities. Although not explicitly stated in the clause, it must also be implied that the court made its decision based on these motives);

Exceptions:
Persons accused of terrorism are not considered political prisoners if they are prosecuted and convicted for such charges (it is interesting that during the discussions, experts even agreed that persons convicted of particularly serious crimes, such as carrying out a terrorist act, should not be considered "political prisoners" even if they acted out of "political motives"). Burden of proof for interpreting the term political prisoner:
The issue of the distribution of the burden of proof when assessing political imprisonment is also interesting (i.e., which party must prove what):
a) The person who claims and asserts that they are a political detainee/accused/convict must present relevant evidence to the case (meaning prima facie evidence that falls within the aforementioned definition);
b) After the presentation of such evidence, the State must then be given the opportunity to present its own evidence to prove the contrary.
In other words, if the state fails to present adequate evidence that proportionality was maintained between the sentence and the committed crime, that there was no discriminatory approach towards the person, and that the sentence/deprivation of liberty was the result of a fair trial, then the person must be considered a political prisoner.During the discussion, it was additionally clarified that in some cases, political statements often "cross the boundaries" set by the Convention—such as calls for violence, racism, or xenophobia—and receiving a "symbolic" punishment for this cannot serve as a basis for recognizing a person as a political prisoner;

The difference between a political prisoner and a prisoner of conscience:
In some cases, alongside this term, the phrase "prisoner of conscience" is also used. This term (frequently used by Amnesty International) is narrower in content; however, it encompasses any convicted person who is imprisoned/deprived of liberty due to their political and/or religious views, ethnic origin, place of birth, sex, race, language, property status, sexual orientation, or other characteristics (provided they have not used or advocated violence). According to some, and I share this view, (if a person's deprivation of liberty was carried out in violation of fundamental guarantees of the European Convention, namely: freedom of thought, conscience, religion, expression, and assembly) this is more akin to a prisoner of conscience rather than a political prisoner. The main hallmark of a political prisoner is absent here—it is more a sign of a personal characteristic rather than a political ideology for which one might become a political prisoner;

ECHR Case Law:
The approach of the European Court of Human Rights (ECHR) regarding political prisoners is also interesting. For example, in the Khodorkovsky case (where he claimed his prosecution was politically motivated), the Court noted that an "incontrovertible and direct proof" is required to establish such a violation. However, in another case, Gusinskiy v. Russia, the Court could be said to have established political persecution (due to a violation of Article 18 in conjunction with Article 5). At the same time, it is interesting that the operative part of the judgment does not explicitly label the person a political prisoner or exile. (The essential article for recognizing a person as politically persecuted is Article 18, namely: "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"). It can be said that recognizing a person as a "political prisoner" requires a rather high standard of justification, which must absolutely be supported by appropriate evidence and subsequently confirmed by a court. It is one thing when a journalist or politician might declare someone a "political prisoner," and quite another—the legal reality that a lawyer participating in any proceeding must adhere to. Being accused and/or convicted a priori does not mean being a political prisoner, just as an acquittal does not necessarily mean that the person is no longer a political prisoner;

Personal Opinion:
It is noteworthy that a uniform standard for political imprisonment is not established, but at the same time, the objective reality has changed. This means that in today's reality, a political prisoner does not simply mean a person evaluated by:
a. Innocent or not?!
a.1: This should be interpreted as follows: a political prisoner can indeed be a person against whom a guilty verdict exists. A favorite justification for lovers of dictate is to say that the court has decided, and therefore the court's decision not only rules out but rather cements the political imprisonment. Accordingly, for a person to be called a political prisoner, the existence of a guilty verdict is often precisely the tool used.
b. Proportionality of the sentence?!
b.1: The sentence applied to the person for their action is substantively disproportionate to what was done. This means simply that the action carried out by the person is so insignificant that punishing them under criminal law creates a clear and undeniable disproportion. This can happen when there is no actual harm, when there is no victim, yet the state still punishes the person for its own purposes.
c. The sentence is applied for the first time?!
c.1: A sentence and/or imprisonment is applied to a person for an action for the very first time, whereas in other similar cases, the court does not apply it.
d. Political evaluation?!
d.1: The evaluation of the case and expression of opinion by a politician representing the government occurs before the conclusion of the court dispute. Moreover, if the politician's assessment substantively indicates a desire for the strictest punishment to be applied to the person, and this is stated personally and publicly.
e. Details of the case are known to the politician directly from the prosecution?!
e.1: It is noteworthy that a politician should not have access to any kind of criminal or administrative prosecution files. However, the phrases and opinions voiced by them indicate that they somehow have full and exhaustive information about the case, which they should not have known.
f. The person is tried for an action that was not previously punishable as a criminal and/or administrative offense?!
f.1: The trial of the person is preceded by the state declaring their usual actions—directed at exercising freedom of thought and expression—as a punishable offense. This can be expressed by criminalizing the action, or applying disproportionately high fines and/or imprisonment; furthermore, these changes must be rushed, and the purpose of the adopted law is to suppress the exercise of these rights.
g. Double jeopardy for the same action?!
g.1: A single action might be punishable administratively, but in the case of the same action and/or a repetition of the same action, it becomes punishable under criminal law.
h. Other subjective factors?!
h.1: Since the law is not static, there may also be other grounds that lead us to believe that political imprisonment is present;

Objectively: It is impossible for a uniform standard of political imprisonment to exist. However, it is also noteworthy that it is not established whether 2 conditions must be present or if one is sufficient for a person to be a political prisoner?! This is a realm of law that relies not only on the law but on its interpretation. Accordingly, in my firm belief, a single trait alone is not enough for political imprisonment; rather, 2 or more factors must be present simultaneously.;

Any term used by any person inherently implies both objective and subjective factors. That is why, without factual circumstances that meet the criteria, a wide spectrum of evidence is required to state whether someone is a political prisoner or to state that someone else is not.