Versions: Azerbaijani | English

You Are Here: Home » Reports » ALTERNATIVE REPORT

 

PROJECT AUTHORS

 

1) Mr. Elchin Abdullayev, a chairman of Democratic  Institutions and Human  Rights  Social Union

2) Mr. Azer Resulov, member of Bar and DIHRSU lawyer

 

                                                                                      

Protection of physical and moral integrity, respect to human dignity becomes normative of law enforcement mechanism of democratic countries, being a core of human freedom and rights. Azerbaijan amended legislations arose from international law to a part of domestic law, in its legislation, and currently are charged to fulfill the said liabilities. Azerbaijan legislation system makes liabilities arising from international law as a part of domestic law. Azerbaijan government joining main international acts and contracts on human rights should make reports before international organizations on the devilment of fulfillment of principles provided for in the said documents.  

 

International organizations and local society were of opinion that Azerbaijan Republic by joining UNO Commission against tortures and other cruel, inhuman or degrading treatment and punishment methods, would take necessary actions for respect to rights and freedoms of imprisoned persons, detainees by law enforcement bodies, arising from international acts, as well as would will make opportunities for main changes in this field, would sincerely fulfill the liabilities it undertook. Unfortunately, observation of process shows that, the government provides the domestic and foreign society with uncertain information, and wants to act out of real reforms. From the date Azerbaijan joined the Convention, till today, torture facts against detainees and arrested persons by law-enforcement bodies not getting decreased, actions degrading arrested persons that are often faced in practice are witness of above mentioned. Violent action methods belonging to soviet authoritarian regime are dominant in attitude with detainees. No democratic or humanist treatment arising from requirements of Convention and international acts and liabilities that the government undertook, are almost not available. Government structures mentioned that it needed certain period to decrease treatment and skills remained from the old system, against detainees, but number of complaints from torture victims of torture facts and other inhuman treatments, to non-governmental organizations, Ombudsman, media is getting increased, year after year. They has not consider number of recommendations made by UNO Committee against tortures, as well as Council of Europe commission acting with the similar mission. Death as a result of torture, domestic public reaction is not considered at all.                 

 

International society regularly has applied firm pressure on Azerbaijan government. Though it supports reforms in law enforcement system against torture or inhuman and degrading treatments, the government, vice-verse, follows recommendations only when it faces application of serious sanctions, and does not feel its liability before society and international unity, as its activity has not been subjected to any serous monitoring or criticism in the country and in international arena. In such a case, unintentional and professional appreciation by international organizations to processes in Azerbaijan, development of domestic civil society organizations and having ability to impact the government assume importance.  

 

Undoubtedly, Azerbaijan took certain actions in fulfillment of some liabilities arising from UNO Convention against tortures and other cruel inhuman and degrading treatments and punishments, as well as recommendations by Committee against Tortures. Namely, the said Convention and necessary international acts concerning to that Convention theoretically become integral parts of domestic legal system in Azerbaijan. Criminal, Criminal-procedural activity legislative acts, standard-legal and standard act regulating imprisonment regime for detainees, as well as legal regime of arrested or accused persons were significantly conformed to international standards.

European penitentiary rules and other similar substantial international standard acts were ratified by the Parliament. Besides, in order to strengthen protection of detainees arrested or imprisoned persons from being subjected to tortures or inhuman cruel and degrading treatments, there is still need to take some urgent actions for democratizing legislation system, making substantial changes to some acts, if necessary. According to UNO Convention against tortures and other cruel inhuman or degrading treatment or punishment methods, Azerbaijan government should submit interim report-lecture about weather clauses of Conventions have been followed or not, before CAT. In the report-lecture, there should be considered that whether recommendations and comments by CAT have been followed or not. Azerbaijan government, upon joining to the Convention, submitted to CAT 3 interim lectures. The last lecture covers 200-2007 years. When reviewing the context of the said lecture, one can see that has not differed from pervious one. Some recommendations and comments of CAT in the last lecture were not considered, number of unreliable information, including few of information of facts and events were provided there. When reviewing the lecture carefully, it is clear that works done by Ministry of Justice in Penal Jurisdiction were emphasized, but a few information was provided there on torture or inhuman degrading treatment against detainees and arrested persons having inflicted regularly, events organized by power structures as well as Ministry of Internal Affairs and Ministry of National Security of which actions are complained, under the recommendations of CAT. It is probably because of Ministry of Justice in Azerbaijan; being targeting reforms differs from other power structures for its works it done in Penal Jurisdiction, substantial events it realized, open attitude to society partly. Naturally, reforms made by Ministry of Justice in Penal Jurisdiction are within authoritarian regime available in the country, namely can not act out of the limits the regime set. There are number of sections to be done in Penal Jurisdiction, defects in its activity, including shortages to be resolved. 

In the 1 Section of the Lecture, work done by the government on requirements intended in 1-16 Clause of the UNO Convention against Tortures and other inhuman cruel or degrading treatments and punishment methods were provided for.

In 2-4 paragraphs of the Lecture submitted, necessity of Order by the President of AR dated on September 27, 2003, about creating Working Group in order to realize recommendations made by CAT and to resolve comments, after the II interim lecture are emphasized. In the said Order, creation of working group consisting of representatives of several ministries (specially power structures), the Parliament, the Court of Constitution, for realization of recommendations made by CAT was provided for. The III interim lecture, mentioned that the order dated on September 27 available as an etalon in preventing defects CAT underlined in previous lecture. It should be noted that, creation of working group consisting of representatives of several state and governmental bodies for prevention of defects underlined by CAT was considered a effective event, in its turn, where public representatives, including NGO officials engaging in protection of rights of detainees and arrested by power structures are not admitted in that Working Group, so it is a witness that the government did not intended to cooperate civil society institutions against tortures and inhuman and cruel degrading treatments or punishment methods. 

Citizens of the country as well as law enforcement bodies are not aware of the context of Activity Plan made y Ministry of Justice on realization of recommendations made by CAT, at all. It is impossible to follow any development on the context and execution condition of the said Activity Plan. Generally, availability of such Activity Plan is doubtful.                          

 

It should be noted of 5 paragraphs of the lecture submitted by the government as there is not independent court system in Azerbaijan; courts are depending on power structures as well as on ministries. According to law, though formal independence of courts are declared, public prosecutor’s supervision are tightened on court, as it was in soviet period. It was known beforehand that, as there is not unit court practice in the country, the decision of Superior Court where recommendations of CAT are provided for, will be just formal. Availability of such documents are mentioned in the report-lecture is only for statistics, and aims to be unfaithful to international society. 

 

Evidences of accused persons being subjected to torture or inhuman or degrading treatment are not considered by the judge during the trial, or they made to admit the proof of torture. Whereas according to requirements of legislation and European human rights presidents, if accused person told that evidence was taken him by implicating torture, such case are revealed in the court, judge must require investigatory bodies to re-conduct investigation, with a special decision. The case must be submitted to investigation. As court is not independent, it can not express rigidity.  There are not such cases in court practice, where judges take decisions on implementing punishment for any investigatory body or operator, investigator, or public prosecutor. Exceptionally, if such cases meet for statistics, it can be only with consent of officials of department where such tortures were implicated, or of ministries.    

 

Courts rarely appointed forensic-medical expertise during the trial. During the forensic medical expertise rarely appointed to investigate the case, expert submits opinion of torture facts not being confirmed and a false written act are made on behalf of the expert showing it was difficult to make an opinion as signs of torture had disappeared. So, it is due to non-availability of independent expertise bodies in the country or its activity depending on the executive power.  Experts was not provided opportunity to make objective or independent opinion.                 

6th paragraphs on the report submitted by the government provided that lower instance courts were instructed by Superior Court about the necessity to accept evidences taken by implicating torture as a proof. In the decision made by courts on most cases, evidences taken by force during the primary investigation, but not to evidences investigated during the proceeding. Judgment made as a conclusion of primary investigation is, in most cases, transferred to Decision – final act of court. Courts use writings copied by investigatory body to a CD or Flash Card, as original.                    

 

Pursuant to 169-186 paragraphs of the lecture, I would like to notify that during the last 5 years, some positive changes have been made in court system, number of courts and judges have been increased. But such development in quantity do not cause in any changes in quality. According to the legislation, courts considering as a symbol of court of justice, are accepted by society as bribery and ineffective system.  Is selecting of judges as a part of reform process in court system are transparency in primary stage, the next stages are conducted nontransparent and out of publicity. When selecting judges, political view or adherence to the party in power assume importance. 

 

In spite in the constitution, it is declared that judges are independent, in the acts not having the same force, as well as in standard acts such as “about courts and judges”, “About forensic-legal Council” etc there are more many norms restricting independence of judges. Judges are not selected forever. Activity of judges newly appointed, should be appreciated (controlled\checked) by Forensic-legal Council for 5 years once each year. Appointments of judges to relevant courts are carried out by president who is a head of execution power or the Parliament, under the presentation of Forensic-legal council. Lack of professionalism of judges leads them to illegal ways; subsequently superiority of law is violated.

 

In spite of recommendation by the international organization to establish an independence body consisting of forensic-legal council’s judges, it acts as structural unit of the Ministry of Justice and is under the Ministry’s control. Disciplines about judges are not applied in the cases when they take injustice or illegal decision, but in rare cases when they act against the will of investigatory body.

 

With regard to Paragraphs 12-13, 24-30, 150-160 of the report, it can be stated that, medical assistance for detainees held in Penal Jurisdiction, meeting modern requirements still remains an actual issue. Indeed, some actions were taken for treatment of patients with assistance or support of international bodies, subsequently positive results were achieved. Especially, as a result of application of DOTS program, cases of death from tuberculoses were substantially decreased. But, a risk to be infected with tuberculoses is still high in jails in Azerbaijan. As tuberculoses that can be treated with medicines, are mostly jails in Azerbaijan in comparison with other countries, infection from tuberculosis sick detainees remain as a danger. Namely, in the report by WHO, some months ago, Azerbaijan are pointed as a country where tuberculoses are speedily spread. In the said report, it is also mentioned that the highest index of tuberculoses that can be threatened with medicines, is in Azerbaijan (Baku). 1\4 of tuberculosis sick detainees are suffering from that kind of tuber clauses. The report also stated that tuberculoses are mostly spread in jails. 

 

In spite of that, facts of death from tuberculoses are comparatively decreased some years ago, but number of patients and risk of being infected with tuberculoses are still high. The reason is again that factors causing the illness have not prevented yet. Conditions provided for detainees do not still meet modern standards, density in cells is high, detainees are not provided with food with high-calories, Hygienic requirements are not followed, low-quality medical assistance are rendered. All of them still remain as a problem. When considering that the tuberculoses is a infectious disease, health detainees as well as relatives of detainees suffering from tuberculoses due to the reasons above mentioned, can probably be infected when  visiting them in jails. When tuberculous sick detainees are set free, society can also be infected in tuberculoses.  The life of tuberculous sick detainees after setting free is out of attention of higher governmental bodies or society as well as legislation. Namely,  legislation did not clearly regulated which organization would ensure continuation of treatment for detainees who lived in closed condition for a long time, and involved in obligatory medical treatment  in jails with assistance and support of international humanitarian organizations, after setting free. However, feature of tuberculoses requires providing patient with regular necessary medical and social assistance.

Azerbaijan republic Law “About struggle against tuberculoses” provides that tuberculoses who discharged from jails or military service should be registered in medical center for tuberculoses for residence places, under the control of relevant executive powers, during 10 days. Detainees imprisoned for a long time, lost their rights in previous residence places, due to reasons not depending on them, during their imprisonment. So, they, after setting free, face to some difficulties in having registered for residence places or in medical centers for treatment. Relevant executive bodies’ attitude indifference to the situation they suffer as well as to their disease, and refuses to register them. In some cases, tuberculous sick detainees, themselves do not approach the condition seriously, and do not tried to be registered, due to lack of knowledge of their rights.

The other problem that former detainees face after setting free is that they can not be ensured relevant medicines or food of higher-calorie due to lower financial conditions or irrelevant place of residence. It is impossible to imagine their living standard, while taking into account the question such as adaptation to the society or unemployment. Truly, though Azerbaijan Republic legislation provides for norms with regard to provision of treatment, as well as medicines free-of-charge for tuberculosis sick on state’s account, we meet contrary situation, in real life. Treatment and medicines are covered on patients’ own account, in most cases. According to the official information by authorized officials of Penal Jurisdiction, while considering the amount directed to the treatment for each detainee in prisons is AZN 4000, it is questionable how tuberculosis sick detainees who set free could cover a course of treatment or how they could buy medicines for tuberculous. As a result, tuberculoses sick are deprived from necessary medical or social assistance, and lose their life earlier. On the other hand, tuberculoses sick who can not continue the treatment automatically become spreaders of the disease among people. so, such persons should be checked out as “social group” needing necessary medical and social assistance, legal norms providing for necessity of control by physicians or obligatory treatment for tuberculoses sick , should be added in the legislation. Separate residence, as well as therapy center should be maintained for such tuberculoses sick to settle them.

The building of Penal Jurisdiction Treatment Establishment where detainees getting treatment for other diseases are settled, is very old and in the condition not meeting to modern requirements. it is impossible to install modern medical equipments there and to ensure sick detainees to be examined and treated according to modern requirements. Lack of medicines and medical equipments in the said treatment Establishment are visible. Patients have to get medicines they need, on their relatives’ account. It should be noted that, medicines or injections or other necessary medical materials bought by patients’ relatives are given to physicians or Medical establishment. Whereas it is questionable whether the medicines or other medical materials have completely been used for treatment of the patient.

As regime rules in treatment establishment are not serious, imprisonment persons or detainees who do not suffer from any disease tries to be accommodated in treatment establishment, instead of staying in jails or isolating centers. So, they are required to give a bribe to mayors of Remand Centers or jails in amount US D 800-1200. US D 1000 is required for each next month. Detainees whose material condition is good, can stayed there for some months. But, sick detainees suffering from any diseases indeed, can not get to treatment establishment due to bad material condition. There not sufficient high qualified physicians and civil nurses involving to work directly with detainees. Patient is treated indifference, in case patient’s relatives have not paid physician or nurses. 

As nutrition regime in treatment establishment is low-quality, patient’s relatives are force to bring food with high calories to them.

Patients are subjected to discrimination depending on their material condition or reputation. Detainees are subjected to cruel or degrading treatment or indifference. Physicians look after patients whose material condition is good; they are accommodated in rooms called «bourgeois rooms” that were supplied with necessary equipments.

Information about patient used illegal ways in order to meet with their relatives and facts of bribes for it. Relatives of imprisoned persons trying to meet with them are required bribe twice more. They are also required bribe in order to get consent from investigator conducting investigation.

It should be noted that, negative cases faced in Penal Jurisdiction treatment establishment of Ministry of Justice are also available in medical -points acting attaching to Remand Centers of Ministry of Justice. Here, it is required to paid physicians for necessary primary medical aid. Otherwise, physicians or nurses do not look after them when they need medical aid.

Lack of qualified psychologists in therapy establishments or centers of Remand Centers are visible. As it is an urgent problem for years; no necessary actions have been taken for its settlement by responsible persons yet. 

In the report, it was stated that an working group had been created to ensure independence of medical experts, and recommendations by international organizations, and practices of foreign countries had been considered, but we were witness of that no positive progress was achieved, practically. Facts of torture and cruel treatment against detainees and accused persons were revealed, but documentation of such facts was not provided. Correct information on the person being subjected to torture has not been stated in documentations, in more cases.

When a imprisoned person complains of damage or becoming invalid due to physical pressure on or cruel treatment against him\her in police department or any investigatory bodies, his\her compliance was not registered or results of examination carried out in victim’s body, according to the complaints are seriously falsified in documents. Sometimes, documents made by physicians do not conform to requirements of Istanbul protocols, and can not be considered as any evidence on torture implicated in court. When physicians falsifies documents or do not draw up them correctly, they aim not to lost their employment or thinks about their security. Besides, torture victims, themselves do not want such cases having explained.

 

In Criminal Procedural Code, there are number of norms regulating accused person or detainee’s right to protection or to get professional legal assistance. However, there are substantial problems in application of such norms. Namely, According to Article 85.2 of CPC, a person should be ensured to use his/her rights to protection from the time he/she arrested or accused or detained.

No investigatory body acting attaching to power structures in Azerbaijan provides detainee with advocate from the time he/she was detained. Evidence from detainee was mostly taken by operators without participation of advocate, by applying physical or psychological pressure on them. In the nest stage, it is directly under investigatory body’s or investigator’s willing whether to provide detainee while interrogated by investigatory body with advocacy as defender. In this case, detainee being under strong psychological or physical pressure is not able to invite an advocacy independently. An advocacy is presented to the accused person as defender, a little time until interrogation of accused person in investigatory department of Ministry of National Security (power structures) completes. Advocacy who was admitted to participate in investigatory that is just about completes, find difficulties to protect the detainee, because investigator had already get necessary information form the accused person. Participation of the advocacy in trial serves as though rights of protection have been maintained, only. The advocacy finds difficulties to protect rights of the detainee. Such advocates were not able to present written testimony or just ask a question. They consider their duties to be over only by signing the documents presented to him. In other investigatory bodies, especially in Investigatory departments of Ministry of Internal Affairs or Public Prosecutor’s Office acts in the same mode. But, unlike Ministry of National Security, prosecutors of MIA and Public Prosecutor’s Office sometimes make detainees refuse advocacy’s service and record it. Sometimes, the advocacy is invited at the end of investigation. In this time, his/her duty is over by signing protocols drawn up during the investigation on the case.

Whereas national legislation provides duties over investigator, investigator, or judge to ensure accused person to get quality legal assistance, as well as set forth special procedurals for appointment of advocacy on state’s account.

It still remains problem for advocate to meet with detainee confidentially in the primary stage he/she was detained. Namely, advocate suffers from a long and hard procedure to get a cell or isolating center in order to meet a person of which rights he/she wanted to protect. The advocate should apply prosecutor or investigator written in order to meet with a persons of which rights he/she is going to protect, and can meet with him only by submitting responsible person of the remand center an admission by prosecutor or head of investigatory department conducting primary investigation. It takes more time to get relevant admission to meet with detainee. It negatively impacts quality or in time legal assistance.                

According to the legislation, though Bar is characterized as independent or a voluntary union of advocates, Department of Ministry of Justice and the President for Affairs with law enforcement bodies, have impact on this establishment, especially on presidium as its management body as well as on its chairman.  Such impact inflicts damage on Bar or quality or independent advocacy activity generally.

Bar established in 2004 has about 800 members, currently.

Such members are registered in legal consulting office acting in several administrative-territory establishments.

Attitude by law enforcement bodies, courts to advocacy institute witness of that the government considers it as unimportant one. % 70 of petitions or applications issued by advocates during the trial is almost not provided. Advocacy is paid 99 kopeck (US D 1, 20 cent) per hour for legal assistance he/she rendered. This amount covers real time advocate spends in trial or investigation only. The time advocate spend for meetings with the accused persons in remand centers or for waiting for investigation actions to be conducted with his participation is not considered. So, the advocate appointed in investigation or in trial shows indifference for his/her duty, and is not interested in rendering legal assistance.

As mentioned above, certain positive points ate visible in activity of Ministry of Justice. For instance, Baku Investigation Isolating center meeting to European standards was established and put into exploitation, in May 2009. 

 

It is impossible to compare detention conditions in the very isolating center and former isolating center number 1 and other effective isolating centers, as well as Remand Center of MNS. But, it should be noted that, as accommodation of all accused persons in that isolating center is not possible, Ganje isolating center number 3 and Shuvalan isolating center number 3 acts. It is planned to cancel Shuvalan Remand Center and to transfer it to the new Baku Remand Center, in future. It should be noted that, though a new Remand Center is established, but density in Ganja and Shuvalan Remand Center is high. Sometimes, number of detainees in cell is more than normal. As isolating cells are old, heating, conditioning or lightening system do not conform to modern requirements. Floor of some of cells of isolating centers (Shuvalan, Ganja) and most of hall of residence of jails are still covered with cold and wet concrete. Shuvalan isolating center was established in 1898m and began to act since 1932 as Remand Center. As it is situated near the sea, cells are damp. As ceiling of cells are covered with material as cast iron (roofing slate), cells are very hot in summer. Temperature in cells is sometimes more than 35 degree C. Before putting new Baku Remand Center into use, more people were held in Shuvalan Isolating center. According to the information of officials, 1050 people were considered to accommodated here. Currently, number of people accommodated there was decreased, but density is still high. Cells of 2, 8, 10, 14, 16 places are available in 4 corpuses. Area of a cell of 8 places is 4-4,5 x 4,0 m, height of ceiling is 3,5 m, area of the other cell of 14 people is 4×4,5 m and consisting of 2 windows 50 x 80 sm. There were conditioning devise, electric kettle and radio set there. Voice of radio programs was heard from some cells, in each cell, there were 2 Asian toilets. In some cells, toilet hole was stuffed with stopper made of plastic bottle. In some cells, there was not toilet at all.

Cells are heated centrally. Hot air entered from a small window on the top of the door of the cell.

On the floor of the cells, there is a wooden bed and a seat or a small table. There is a hole on the ceiling of 3 m.

Ganja Isolating center is not very big, but analogical problems are available there.

Prisoners whose material condition is good are provided with better conditions, so it leads violation of right to equality. Prisoners held in the cells have to pay employees of the isolating center to open the windows of the cell in hot summers, to have a shower, to sent written note to relatives out of the isolating center. Excepting meeting of detainees held in Remand Center of MNS with their relatives, detainees held in Investigatory isolating enter of the Ministry of Justice were permitted to meet with their family members. But with permission is issued unlawfully. In the isolating centers, detainees in isolating centers are not issued newspapers or magazines, excepting official ones.

There are still number of imperfections in treatment with detainees and arrested in Remand Centers or jails. Employees of Penal Jurisdiction should be familiar with requirements of Istanbul protocol, and fulfill their administrative duties according to the requirements set forth there.

Specially, serious problems are available in professional level of employees of remand centers of police departments. Such problems include:

1)    Lack of independent officer in remand centers;

2)    Higher educated policeman in remand centers of most regions, instead of officers

3)    Lack of woman guidance or policewoman in remand centers in order to check women.

There is a law “About imprisonment of suspect or accused persons” in daily of the Parliament, more than 3 years. That law was adopted in the Parliament from the first reading, presentation of the project to the third reading to take legal effect has been put off. In case the very law is adopted, detainees are expected to have substantial rights, including meeting with relatives.

As a part of reforms in jurisdiction, repair works were began in some jails; Baku Psychiatric establishment number 2 has been built, as well as jails in district regions of Republic – Shaki, Lenkoran has been constructed, but the process is very slow. So, people had to be take punishment in jails far from the area they resided, and to meet with their relatives. It would be better to speed up the construction of new jails and investigatory isolating cells in Azerbaijan where income of oil flows.

 

With regard to 209-303 paragraphs of the report, in order to improve detention condition of persons imprisoned for life, providing of cells with TV sets or putting special corpus for therapy of tuborculoses sick detainees into exploitation are highly appreciated, but, those detainees still have to stay in very severe conditions. Detainees are dissatisfied with severity of imprisonment in Gobustan prison. Some detainees often protect, sew their mouths or go on hunger strike there, or commit suicide. Responsible authorities delay construction of jails meeting modern requirements. Besides, simplifying imprisonment regime for those detainees Authorities of Ministry of Justice notified about amendments or changes to Code of Imprisonment. But the Parliament is not about to consider this issue.

In 147-149 paragraphs of the report, according to requirements of the Article 157.3 of Criminal Procedural Code, persons imprisoned under the decision of court can not be held more than 48 hours, he/she must be discharged or transferred to Remand Center. Violation of requirement is based on that as though Remand Centers are 200-300 m far from police departments. It should be noted that, cases of detention in remand centers more than 24 hours are not only in such distant police departments, but also in police departments in Baku and Ganja or near them, where Remand Center is situated. Especially in remand center of Department for struggle against organized crime acting in Baku, persons are held for 10 or more days. Distance from Remand Center is an excuse, where the main purpose is good condition in police departments to implicit physical or psychological pressures on the accused or suspect, in order to get confessional evidences from them. Otherwise, as Remand Centers are depending on other establishment, torture by policeman would not be possible. In the complaints to non-governmental organizations, as well as to Ombudsman or in courts, it is stated that most of torture cases have been implicated in police departments. While considering that cases that accused and suspected die in police department, it is clear why accused or suspect are held in police department, against the law, more than 48 hours. It would be better to follow the rule stated by the government; to transfer persons held in remand cell more that 48 hours to Remand Centers or to discharge them. Then, employees of that service would be responsible for anatomic completeness of that people. So it may impact opportunity to implicit torture against detainees in cells or negative cases.

Though Ombudsman Institution has been established in the country more than 7 years, serious problems in activity of this group in its purpose, are available. Most of those problems relate to current political environment in the country. The other part of such problems is that ombudsman/ himself/herself is not an independent, not having law qualification, and ability to operatively and adequately react human rights violations as well as torture facts implicated by law enforcement bodies. During presidential election in 2003 and parliamentary election in 2005, using force by law enforcement bodies against people taking part in political meetings, implicating tortures in police departments or Departments of MNS against participants of such meetings are not considered by Ombudsman, where Mass Media denounced participants’ actions, and supported actions of law power structures. It contradicts with activity principle of Ombudsman Institute. Violations as well as cruel and degrading treatment by law enforcement bodies against accused or detainees, and silent of Ombudsman or supporters of power structures still continue. Ombudsman does not express his/her opinion of events happened during the protest of detainees in Jail number 6, so it is a witness of above mentioned. In the repot made by ombudsman of her 7 years activity, using of force by employees of police departments and other power structures against detainees is regularly replaced with humanitarian or democratic treatment. Whereas are we witness of other practice in reality.  In the first chapter of the said report, Ombudsman stated that she had conducted investigation of the death of 3 persons in police department as a result of torture that media notified about, and confirmed that such death cases are happened not due to torture, but due to suicide committed two of them, and heart attack before entering police department. As it is clear, attitude of ombudsman to death facts of citizens as a result of torture does not differ from power structures’. Whereas, ACAT possesses enough facts, evidences of that all persons had dead as a result of torture in police department, as well as photos and videos reflecting signs of torture on victims’ bodies and set them in its web-site, last year (see: ACAT official web-site www.acat-az.org).

It should be noted that, ombudsman in the country is not known enough as a protector of human rights. Victims of torture prefer to apply no NGOs, especially to ACAT. Nevertheless, changes that enabling selection of ombudsman twice made the effective legislation that regulates activity of Ombudsman institution, in June (her 7 years activity was severely denounced by society). Ombudsman stated that, during her activity period, she had accepted 42.260 applications, where about 6 thousand complaints. Though she emphasized in the report about her visit to remand centers or jails, but statistic of such visits was not mentioned there. She did not indicate in the report how many complaints she accepted, how many victims she interrogated, or how many victims were rendered physical and legal assistance. So, her activity appears questionable. Ombudsman’s activity of can not be compared with independent law enforcement bodies’; it is meaningless to speak about its conformity with “Parisian principles”.

Facultative Protocol of UNO Convention “against tortures and other cruel, inhuman, or degrading treatment or punishment method” was signed by Azerbaijan authorities, under the Order of Azerbaijan Republic President dated on January 13, 2009, an ombudsman as an institution acting functions of national preventive mechanism was appointed. It should be noted, considering poor activity of ombudsman, it is doubtful that that facultative protocol would be executed by the said institution. When considering activity of ombudsman in previous years, it is not difficult to imagine its activity as an organization carrying out national preventive function, beforehand. It would be better to establish a new body where ombudsman and NGOs acting in protection of human rights, as well as representatives of law enforcement bodies specially struggling against torture can act together. Establishment of such body by power structures will show that Azerbaijan government really tries to do anything in execution of facultative protocol. Ombudsman repeatedly invited the chairman of ACAT, and asked him not to reveal facts of torture.           

 

One of the recommendations made by CAT to Azerbaijan government is to guarantee activity of non-governmental law enforcement organizations acting in Azerbaijan by the government, as well as force against human rights advocate by power structures or other persons. The government expressed its opinion with regard to Articles 39, 189, 304-315, that there are 2300 NGOs acting in Azerbaijan, 180 of them is qualified in law-enforcement. Besides, there also stated that, Public Committee consists of 11 local law-enforcement organizations of which representatives are entitled to enter jails and remand centers without any obstacles and take part in protection of detained or imprisoned persons.

However, according to internal rules of Ministry of Justice of AR, Public Committee can not visit Remand Centers or prisons.

The Chairman of ACAT was entitled to conduct monitoring in isolating centers or jails suddenly and without any obstacles, before, but now it has been restricted this year (2009). It is only possible to notify Penal Jurisdiction of Ministry of Justice of it and obtain consent of it, beforehand. It should be noted that, it does not conform to activity principle of ACAT, during this period signs on the victim’s body disappeared, so transparency is not provided.

I would like to express my opinion on this part of periodical report of the government and to indicate that there are 2.5 times more NGOs acting in Azerbaijan other than 2300. 250 of them are qualified in law enforcement. The government tries to put obstacles in activities of law-enforcement organizations and their representatives by using blackmails, threat, normative-legal and administrative methods. Namely, standard acts regulating activity of NGO, as well as other standard acts do not meet requirements of today’s democratic requirements. In the Law “About state registration or state register of legal entities” dated on 2004, there was provided unnecessary rules or enough long time for registration in Ministry of Justice. Half part of effective NGOs are force to act without state registration, so it creates restrictions for their activities. Registration of NGOs is mostly possible under instructions or by bribing. Today, it is preferred to register NGS supporting activities of superior political instants or established with support of officials. Registration of NGOs established independently is delayed for months, even years. In the documents submitted for registration of newly established NGO in Ministry of Justice, especially in their Charters are found number of “defects” and issued to constitutors back. It should be noted that, as there are many imperfections or norms hard to understand, in legislation, institutional documents of NGOs are issued back by official by executing that as though any items in charter has not conforms to any norms of the Law while referring to uncertain norms. It should be noted that, as the same defects are available in Charters of some NGOs, it is clear under which principles they have not been registered.

NGO that were not registered applied to court for the protection of their rights, but supports position of power structures in this matter, as courts are directly depending on Ministry of Justice.

The government proceeds to apply pressure on depending human rights advocates, by using administrative resources under its instruction. Serious pressures are organized in TV channels depending on the government, on law enforcement organizations or active representatives of those organizations that informed international organizations and society about persons who were subjected to tortures, inhuman cruel treatment of punishment by power structures. such persons are treated as “enemy to the nation”, where physical, psychological pressures are applied to them and their relatives. As employees of ACAT protects rights of torture victims, provides society with information, as well as photos and videos of torture facts in Mass media or in internet, are subjected to pressure by state bodies. for instance, in the end of lat year, great number of money was stolen from the car of chairman of ACAT, in June 2009, sub-executor of ACAT was imprisoned with false claim (falsification official documents), under the Article 320 of Criminal Code. Besides, chairman of ACAT was invited to Ministry of Internal affairs of Azerbaijan Republic by officials of Azerbaijan Republic Procures’s office and was required and threatened not to spread torture facts to media. It is unbelievable that law enforcement bodies will conduct an objective investigation on the matters above mentioned. Whereas the government declares in its lecture that it would prevent any action violating rights of non-governmental law enforcement organizations.

according to “rules on participation of detainees in the society for their correction and carrying out public control over jails”, establishment and activity of Public Committee taking part in correction of detainees and carrying out public control have not succeed. Namely, though the government claims that it has formed Public Committee by choosing among NGOs, but when reviewing the control of the committee, among 11 law enforcement organizations, most NGOs excepting one or two NGOs, are those having close relation to the government and supports activities of power structures. Activity of Public Committee has been restricted. In standards acts there provided that Committee members must be admitted to enter establishments attaching to Penitentiary Center without any restriction, but they had to get special admission to enter there. So, it do not enable to investigate reasons of violations or to take necessary actions. Besides, NGO representatives who inform public about violations or defects in Penal Jurisdiction are not allowed to enter establishments attaching to Penal Jurisdiction. Namely, in July of 2009, the chairman of ACAT who informed mass media of mass protests by detainees in jail number 12 was prohibited to conduct monitoring in jails or Remand Centers personally, whereas the government tried concealed this event from society. This rule is still effective.  Public Committee members gave recommendations to employees of Penal Jurisdiction to prevent defects they revealed during the visits or monitoring to Penal Jurisdiction establishments, but such recommendations have not been considered. So, is it understood that the Public Committee is established as an “image”. NGOs not including in Public Committee, but wishing to conduct monitoring in Penal Jurisdiction establishment, are not allowed to those establishments. Such NGOs are forced to notify Ministry of Justice beforehand a day in order to conduct monitoring. So it is far from transparency.

The government, mentioned in the paragraph 316 of the report about establishment of Inspection Commission controlled imprisonment under the Ministry of Justice, and efficient activity thereof. But it should be noted that activity of that commission is not publicly open. So, as it is mentioned in the lecture, it is difficult to say something about works done by the said commission in the case of torture or inhuman cruel treatment against detainees or accused persons (if such works are really done). In the letter of UNO on investigation of torture facts by CAT, dated on April 21, 2006 the chairman of ACAT by basing on recommendations for establishment of an independent body demonstrate his initiative to head of power structures and the president to establish a Working group – a body being able to conduct an objective inspection of violations of rights of detainees in jails or remand centers, providing that human rights advocate would join them. But, such initiative was not officially reacted; campaign was conducted against that initiative. 

 

I would like to indicate with regard to paragraphs 189-193 of periodical lecture that, Azerbaijan joined several international or regional contracts for extradition, as well as “Eurepean convention on extradition”, Minsk Convention for legal assistance and legal relations on Civil, Family or criminal cases, and adopted a Law “About extradition of offenders”. In the said conventions or local legislation, it is provided in which cases extradition procedures are possible. But officials do not follow such norms. Specially, Chechen Mujahidins arrested in Azerbaijan about whom Azerbaijan Republic are sure that Russian federation would implicit torture on them are extradited to law enforcement bodies of Russian Federation by Azerbaijan Republic. Extradition of a person arrested by Russian law enforcement bodies is delayed due to necessary documents of crime case not being sent by law enforcement bodies of that country. Whereas, pursuant to Article 75 of Minsk Convention on legal assistance and legal relations for Family and crime cases, a persons within 40 days from the date of detention, must be set free if necessary documents confirming his/her crime has not been submitted to Azerbaijan law enforcement bodies. That clause of the convention is not followed by law enforcement bodies of the country. A persons are detained for months. For instance, Karimov Sharifat Hikmat was arrested in Azerbaijan in March 7, 2009 under the investigation of Russian law enforcement bodies, decision about him was prolonged twice. He is detained in Azerbaijan for 7 years. That person are not visited by local law enforcement bodies, while no information (document) was submitted to authority bodies of Azerbaijan by Russian law enforcement.

 

Though a law about compensation for torture victims due to illegal deed of law enforcement bodies was adopted, this point is provided for in international acts and Criminal Procedural Code, but it should be noted that torture facts against victim should be confirmed, in order to get compensation. As above mentioned, facts of torture of cruel treatment cannot be confirmed in court practice in Azerbaijan, it is meaningless to speak about any compensation for victims. In the decision taken by European Court about Mr.Sardar Jalaloghlu a leader of Azerbaijan Democratic Party, though torture fact against him was confirmed, local government are not about to pay the compensation assigned in the decision of European Court. There is lot of such victims in Azerbaijan about whom European Country has taken decision. There is a few number of decision taken by local courts about compensations to victims, but for the purpose of statistics. Besides, she was beaten by policemen in Azadlig square during presidential elections held in Azerbaijan in 2003, and lost her one eye due to damage. The torture victim applied to all court instances with regard to the case, but no positive result was achieved. Torture fact was confirmed in European Human Rights Court (both torture facts were emphasized in ACAT’s annual report).  

The government indicated in paragraphs 313-314 of the lecture that as if some actions had been taken in spreading of lectures submitted for review of the Committee, decision and recommendations of the Committee, including brief report of summary in the country. But it is far from true. As the government provides incorrect information in its lectures, and as activity of government was criticized in decisions and recommendations made by CAT, and urgent problems are arise before the government for settlement, the government has never been interested in disclosing of said mattes to public. Decisions or recommendations of CAT are probably discussed in some power structures or law enforcement bodies, but they have never presented to public debate or discussion. Or in what form they are presented to public discussion? The government is stated in its report that lectures presented to Committee for discussion, as well as decisions or recommendations of the Committee, brief report of summary is settle in web–site of different governmental bodies. Whereas, no documents can be found in web-site of Ministry of Justice, excepting recommendations of CAT, as well as in web-site of other governmental bodies. Author of alternative report had to apply official sire of UNO in order to drawn up the said documents.

Government states in paragraphs 143-146 that as in disposition of Article 133 of Criminal Code of AR, word of “torture” is interpreted correctly, so no changes is needed to made to the legislation. It should be noted that in that Article, phrases ”systematic beating” or other “violent acts” are indefinite, they should be interpreted correctly. No practice is available in courts with regard to application of Article 133, so interpretation of elements including in the concept of torture appears to be difficult. “Systematic beating” should be accurately interpreted, and other violence acts should be explained. President right of European Court should be referred, for it, and “definition of “torture” in decisions made by that Court under the Article 3 of Convention “About European human rights and fundamental freedoms” should be based on. 

The government also states that it had adopted a Law “About social adaptation of discharged persons” for the purpose of reintegration of discharged peoples to the society, and rights and freedoms and legitimate interests of newly discharged persons have been protected, such persons had been provided with necessary place of residences, as well as with social employment or medical maintenance, in short all necessary actions had been taken for reintegration of discharged people to the society as a normal ones. But, all of these are far from true. Namely, the said Law was adopted 2 years ago, but no adaptation centers have established as stated in that standard act, for settlement of discharged persons not possessing place of residences. Discharger persons who do not possess place of residence have to commit a new crime and returned to jails again. On other side, such persons face with difficulties or bureaucratic obstacles in registration to place of residences. In order to restore property right on the place of residence before imprisoned become difficult. Besides, law enforcement bodies pursue them regularly, called to  police department as required bribe, otherwise, are threaten in arrest  by accusing in any action. Such cases are often meet in practice. Specially, they are arrested by accusing in using (Criminal Code 243.1) or selling (Criminal Code 243.2) of drug more than intended norm or in offences they do not committed.  

Requirement of discharged person employment protection in accordance with the Law “About social adaptation of discharged persons in Penal Jurisdiction» is not also satisfied in practice. Most of these persons face difficulties as they haven’t necessary vocational technical training or specialty. In addition, employers avoid hiring such persons on the pretext of their previous convictions. It would be better to allot minimum quotas for employment of released persons and to provide certain tax credit or other motivating measures for employers who hire released persons and to reflect all these in legislative acts.

It is also problematic for released persons to have access to the free of charge state-paid medical aid. Delivery of health care to such persons is of no interest for medical institutions as they have no money to pay services of doctor carrying out examination and treatment, besides, they have problems in purchase of necessary medicines and other medical facilities due to financial difficulties. That’s why these persons are often ailing or die prematurely as they couldn’t have necessary and quality medical aid.

Another problem of convicted persons is connected with their early release. Criminal Code, Criminal Procedural, Criminal Administrative Code and other statutory acts of the Republic of Azerbaijan include possibilities of early release of convicted persons. According to requirements of the legislation any person can be released from prison early by personal amnesty and pardon as well for good behavior and due to a severe disease.  There are serious problems to be solved in realization of these legislative requirements. For example, according to the act of amnesty provided by MM in March of this year only those of detainees convicted for crimes not causing serious social security threat or minor offences who had 1 year or even less till the termination of their term of imprisonment were released. According to the Criminal Code maximum term of imprisonment for the crimes not causing serious social security threat is 2 years and for minor offences is 7 years. Besides, 4 month period established for realization of act of amnesty is also too long period.

Release of detainees for good behavior during service of sentence is possible only after serving 1/3 of the term for crimes not causing serious social security threat and minor offences, 2/3 of the term for grave crimes and ¾ of the term for especially grave crimes. However, requirements provided in law for release of detainees who have served sentence for this period and distinguished themselves with good behavior are not fulfilled either by supervisors of penitentiaries or by employees of the Republican public prosecutor’s offices and by courts.  Sometimes penitentiaries avoid giving presentation to court for release of either detainee, and courts, in their turn, very often refuses early release of prisons giving a negative reply to their applications. Detainees are required to give both penitentiary supervisor and court a bribe.

The same practice is applied also to those detainees who want to change their high security prison to a lighter security one. Bribes for medical documents certifying disease that could be a reason for early release is one of commonly encountered problems.

In accordance with paragraphs (a) and (b) of Part 8 of the Final Act the CAT proposed the Government presentation of detailed information concerning complaints about tortures and cruel treatment by employees of law enforcement agencies. And the government, in its turn, in its 3rd Report in paragraphs 60-137, disclosed information about some persons deceased in the result of unlawful acts of employees of law-enforcement agencies specifying that investigation of criminal cases on complaints about tortures and cruel treatment committed by employees of law-enforcement agencies is under regular control of law-enforcement agencies of the Republic of Azerbaijan and guaranteeing detailed and impartial investigation of such facts.

I have to mention that information about deceased persons submitted to the Committee by government along with being misrepresented in many cases does not fully reflect the list of the persons died during the years 2004-2006 as the result of the illegal  acts of law enforcement agencies. The persons died during the years 2007-2008 and in the 1st half of 2009 are not talked about generally. Moreover, there is given information only about deceased persons, no opinion about the disabled persons, who sustained serious physical injure and deep moral and psychological trauma as a result of torture,  is made known in the report.

Though the number of persons died in 2004-2006 is shown to be 10 in the Governmental Report Azerbaijan Committee against Torture put information at least about 25 persons dead during 2004-2005 on its web page (see: www.acat-az.org ) . Despite the government did not give information about  the persons died during the years 2007-2008, as well as in the 1st half of 2009 ACAT put information about more 10 persons during those years on its web page. Though the government gave information only about the death facts taking place in police offices ACAT revealed the death facts taking place not only in police offices, but also in military units, Penal Jurisdiction of the Ministry of Justice.

In its report the government connected some of death facts not with the result of torture, but with suicide committed by the dead persons. In the report at least 6 of the 10 death facts are shown as suicide and the reason of the death of the rest 4 persons are connected with worsening of their condition because of various deceases at police offices or on the way. There was mentioned that the facts of torture were not approved in the opinion of forensic medical examination conducted in order to determine the death reason of dead persons, the Opinions drawn up by Experts and the information in the protocols on death made up by law enforcement agencies coincided with each other. Though the government did not make known its opinion about death facts of 2008 and the 1st half of 2009 in the Report information regarding the suicide of at least 4 persons out of 6 died during those years was given to Mass Media and relatives of those people.

It was shown in the report that crime case connected with death facts was opened under Article 125, 308.1 (abuse of position), 314.2 (carelessness), and 309-2 (exceeding authorities) of Crime Case, and that the crime case was cancelled as the accusation declared to persons being accused on 3 episodes was not proved   and that only 1 person of the persons about which a crime case was opened was imprisoned for 3 years under the sentence of court. And the rest 6 persons, who were made answerable and the case of which was sent to court, were given one of the penalties being alternative to imprisonment considered in law. Though, the matter is human death.  It is interesting that though the government connected the reason of the death of the citizen Alishov Rasim Jafar ogu with physical violence used on the dead person by the chief of the Mingachevir City Police Department the crime case on the accused person was opened not under Articles 113 (Torture) and 120 (willful murder) of CC, but under Article 309.2 (exceeding authorities). Opening of crime cases not under Article 133, but under other Articles of CC serves the following purposes:

  1. Protects the accused persons against being made answerable under the more serious article – Article 133 of CC. The crime of torture refers to the category of national crimes and its period of punishment is imprisonment from 5 to 10 years.  Alternative punishment is not considered.
  2. The law enforcement agencies of Azerbaijan deny by all means that the arrested persons are tortured and try to cancel this from international community. Despite the government denies the fact of torture resolutely a number of testimonies, photos of the dead bodies taken by their relatives, video views prove that those persons were tortured. Some of the photos and video views, which prove the facts of torture, were registered and taken by the employees of Azerbaijan Committee against Torture and were duly put on the web page of the organization (see: www.acat-az.org ). And some materials are kept in the central office of ACAT. They may be handed over to interested persons, as well as the representatives of UNO Committee against Torture. 
© 2011 Democratic Institutions and Human Rights Sosial Union · Subscribe:PostsComments · Designed by Theme Junkie · Powered by WordPress