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dihrsuNote. This report analyzed the methods of torture and legislation opportunities, and the reasons for the tortures in Azerbaijan.While preparing the report, we took into account our past 10 years’ experience, analysis obtained under this project, findings of monitoring and opinions of expert. This report outlined the most important points.

TORTURES IN AZERBAIJANI LEGISLATION

 

Legal opportunities on tortures

In general, there is no special legislation on tortures in Azerbaijan. But the conventions of the UN and Council of Europe Against Tortures and Other Cruel, Inhuman and Degrading Treatment and Punishment have been ratified in Azerbaijan. Also, optional protocol of the UN Convention on National Preventive Mechanism has already been ratified. It has been outlined on the other statutory acts despite there is no special legislation on tortures in Azerbaijan.

 

Clause 46, Constitution of the Azerbaijan Republic says:

  • Every person has the right to protect his/her pride and sense of dignity.
  • The sense of dignity of a citizen should be protected by the state. Person’s dignity can by no means humiliated.
  • Nobody can be subject to tortures and suffers. No medical, scientific and other kind of experiments can be held on person without his/her voluntary agreement.

Criminal code of the Azerbaijan Republic considers the application of violence, threatening, blackmail, and also tortures as the means of committing crime. Criminal code of the Azerbaijan Republic considers the use of tortures terminology in the below articles of the criminal code: 113 – “Application of tortures”, 115.2 – “Infringement of laws and customs of war”, 133 – “Torture”, 293.2 – “Forcing to give testimony”, 309, Exceed one’s powers, 331- “Put torture on military servicemen”.
Legislation (Criminal Code of the Azerbaijan Republic, clause 133) values tortures as physical and psychological abuse through beating and putting violence systematically.

Article 113. Tortures

Putting physical tortures or sufferings on persons who are arrested or imprisoned in kind gets punished to seven to ten years imprisonment.

Article 115. Infringement of laws and customs of war

115.1. Mitigation of captured and other persons protected by the international humanitarian right to serve in

armed forces of the party which have taken them in a captivity, and also compulsion of enemy state citizens

to participate in a military operations directed against the country â_ “shall be punished by imprisonment for the term from two up to five years.

115.2. Application to a persons provided in article 115.1 of the present Code, tortures, severe or brutal

manipulation with them, implementation of medical, biological and other researches, including withdrawal

of bodies for transplantation, and also their use as a barrier for protection of armies or objects, or

maintenance as hostages, as well as attraction of civilians to forced hard labor or compulsory moving from

places of a lawful settlement for other purposes â_ “shall be punished by imprisonment for the term from five up to ten years.

115.3. The acts provided by articles 115.1 and 115.2 of the present Code, entailed to death of persons or

causing of heavy harm to their health â_ “shall be punished by imprisonment for the term from ten up to fifteen years.

115.4. Deliberate murder of persons provided in article 115.1 of the present Code â_ “shall be punished by imprisonment for the term from twelve up to fifteen years or life imprisonment.

Article 132. Battery

Deliberate causing battery or causing a physical pain by other violent actions, not entailed to consequences

provided in article 128 of the present Code â_ “shall be punished by the penalty at a rate of up to two hundred nominal financial unit, or public works for the term up to two hundred forty hours, or corrective works for the term up to one year, or imprisonment for the term about six months.

Article 133. Torture

133.1. Causing strong physical pains or mental sufferings by regular causing battery or other violent

actions, not entailed to consequences provided in articles 126 and 127 of the present Code â_ “ is punished by imprisonment for the term up to three years.

133.2. The same act committed:

133.2.1. concerning two or more persons or person recognized as hostage either stolen, or committed by

order;

133.2.2. concerning woman who is obviously taking place in a condition of pregnancy;

133.2.3.by croup of persons, on preliminary arrangement by group of the persons, by organized group or

criminal community (organization);

133.2.4. concerning minor or person in helpless condition which was obvious for guilty;

133.2.5. concerning a victim or his close relatives in connection with implementation of service activity by

him or performance of the public debt â_ “ is punished by imprisonment for the term from three up to seven years.

133.3. Commitment of the acts which is provided by articles 133.1 and 133.2 of the present Code, by

official with use of service position or his instigation with a view to receipt information or compulsion of

his recognition, or with a purpose of punishment for committed act or to which commitment the given

person is suspected â_ “ is punished by imprisonment from five till ten years.

Article 293. Compulsion to evidence

293.1. Compulsion suspected, accused, suffering, witness to evidence at interrogation, and also expert to a

summer residence of conclusion by application of threats, blackmail, humiliation of advantage or other

illegal actions by prosecutors office, investigator or person making inquiry, or at their instigation â_ “ is punished by imprisonment for the term up to three years.

293.2. The same act committed with application of torture â_ “ is punished by imprisonment for the term from five up to ten years.

Article 331. Insult, causing injuries or torture of a military man

331.1. The insult by one military man of another during performance or in connection with performance of

duties on military service â_ “is punished by restriction on military service for the term for about six months or maintenance to disciplinary military unit on the same term.

331.2. The insult by chief of subordinate, as well as by subordinate of chief during performance or in

connection with performance of duties on military service â_ “ is punished by restriction on military service for the term up to one year or maintenance to disciplinary military unit for the term up to one year.

331.3. Causing injuries or tortures by chief of subordinate during performance or in connection with

performance of duties on military services â_ “ is punished by imprisonment for the term from three up to seven years.

Inhuman treatment is prohibited under Punishment Execution Code of the Azerbaijan Republic. Article 3.3 of the code notes the following: “In accordance with the Constitution of the Azerbaijan Republic, relevant legislations and principles and norms of the international law, this code is based on impermissibility of tortures, other inhuman deeds and personal degradation and humiliation in treatment with the prisoners”.

Law of the Azerbaijan Republic “On Police”, article 5, section 2 notes that the police treatment with any person in a humiliating manner is impermissible.

In general, there are definite rights under the Azerbaijan legislation for the imprisoned persons for the  purpose of providing the defense from the degrading treatment.

Here, the important role belongs to the main legal provisions which contain the following:

  • Inform relatives of the arrested person of the fact of arrest or the third person selected by him/her;
  • Enable the opportunity of meeting with the lawyer (this right contains the existence of effective legal assistance system for those persons, who cannot afford to pay for the legal aid, the right to meet with the lawyer separately and the right to benefit from the engagement at his hearings);
  • Enable the opportunity of meeting with the doctor (this right should contain the right to be examined by the forensic-medical specialists adding to any king of medical examination implemented by the doctor called by the police; all medical examinations should be conducted in the way the police or other non-medical staff cannot hear or see (except for the cases in which doctor obviously claims its contrary); should properly record the results of the examinations, and should enable the acquaintance of the arrested person and the lawyer with them);
  • Properly register the fact of arrest (Notes should be comprehensive and accurate and the acquaintance of the arrested person and the lawyer should be enabled with them);
  • Clear awareness on the relevant rights (awareness should be conducted in language clear to the arrested person and the arrested person should be provided with a sheet (blank) on which his/her rights are clearly described; the arrested persons should be requested so that they could sign the application affirming his/her having been informed of his/her rights).

These rights should be applied from the beginning of the imprisonment. Even a short delay with the meeting with a lawyer or doctor, or a long delay with the delivery of information on the arrest could lead to the violation of these requirements.

Appeal mechanism on exposing to degrading treatment

  • Benefit from the main legal provisions and inform the relatives, lawyer or doctor on degrading treatment;
  • When being delivered to the prosecutors or doctors, who bear the position of adopting one sided decision with regard to the informaton on the degrading treatment or its signs;
  • Inform the personnel of the prisoner or medical service, who are committed to insist on the movement to the penitentiary institutions immediately and record information on the degrading treatment and injures (if there exist) on the necessity of bringing these information to the attention of authorities;
  • Take registry of appeals or any written applications and send them to the authorities and relevant authorities, as well as claim the delivery of such communications in a closed envelope or any other kind excluding censorship on the basis of the right to respect on the privacy of communications under the article 8 of the European Convention on Human Rights.

Meantime, it is important to claim the forensic-medical examination, or provide the evidences by the prison doctor or other doctors involved in this job through insisting on the comprehensive description of injures or medical consequences of the degrading treatment.

In case in-country legal defense opportunities ended, Strasbourg Court could be appealed.

Juridical valuation of tortures

 

Despite there are special articles on the legislation of Azerbaijan against tortures and other cruel, inhuman or degrading treatment and punishment types, nobody has been punished on those articles so far. In spite of the legal opportunity for those citizens to appeal from tortures and degrading treatment of the victim of torture in prisons, these opportunities remained deprived. After the victim of torture have been subject to tortures, they are illegally kept at prisons for more than 48 hours, and some problems are made for their meeting with the lawyers. Interrogators, investigators, criminal investigators and prosecutors who put tortures keep them out of contacts until signs of tortures expire. In general, there are various reasons for tortures in Azerbaijan.

-        Tortures mainly happen in preliminary investigations so that investigating interrogator, criminal investigation officer and prosecutor use violence and tortures in order to prove the crimes instead of demonstrating professionalism, get admissive evidences by putting violence;

-        Claim the imprisoned person who had not committed the crime to confess it in order to hide the sign of the crime;

-        For the purpose of early finalization of the investigation just for accomplishing the management’s task in a short period of time without any order;

In general, the victim of torture restricts himself/herself from speaking out just for the fear of repeat tortures and inhuman treatment. The victim of torture speaks out his/her confessing the crime under tortures in investigation process only at the court process. The vanishing of the injure signs on the body from the tortures and the court’s not sending the case back to the investigation make difficult proving the tortures. The important opportunities for immediate reveal of the tortures in Azerbaijan and their legal judgment are available only through public unions and Ombudsman by holding monitoring at prisons. In spite of the appeals made to the ministry of internal affairs and prosecutor’s office for holding investigation on the facts of torture revealed during monitoring, all appeals are answered in the same manner: “Fact of torture has not found its confirmation”.

Other reasons for the facts of torture have not found their confirmation are gaps and contradictions with the legislation. Death cases as a result of tortures and media coverage of those incidents lead to opening criminal case against torturers and they are subject to legal judgment. Unfortunately, for the fact of death as a result of tortures is not punished with the relevant article of the criminal code, but with the article 309 of the same code (exceed one’s power).

For instance, for the death of Rasim Alishov, Garabagh war veteran, disabled person of the 2nd group on the date 25 July 2006 in the building of Mingachevir City police department, police chief of Police Department connected the fact with his heart attack, while the relatives of the victim noted they had seen clearly the signs of the tortures on his body. As for the increased social impacts of the incident, law enforcement agencies made judgment of the incident with the article 309 of the criminal code and started investigation, and consequently a number of police have been punished.

Medical services

 

Police lock-up wards

 

In accordance with the limitation to the degrading treatment and the right to live, police bodies should undertake the relevant measures in cases requiring the treatment of chronic or other diseases, permanent care in any emergency situations requiring medical intervention (risks for life and health, pain and other consequences). There are no medical units or medical personnel at lock-up wards of police departments. The government explains this with the reason that the duration of detainment at those isolation wards is not so long.

 

Nowadays, there must be medical personnel at lock up wards under police. But their limited opportunities are not sufficient for providing necessary medical aid to the medical needs of prisoners. If needed, the bodies implementing arrests are committed to ensure public health services, timely appointment of the relevant qualified doctors or prisoner’s meeting with his/her doctor at his/her own will. Regardless accompany, safety and other logistical support or security measures, the same bodies should ensure the full compliance with the limits of the appointed medical treatment and its types (ambulatory treatment, stationary treatment and medication). Unfortunately these rules are in most cases forgotten.

Medical services in prisons

Nowadays, the heaviest state of medical services is observed at prisons. Prisoners claim doctors demand money for medical examination. Despite international organizations raised the matter of abbrogating the Gobustan Prison before the government several times, the government does not take practical measures for the resolution of the problem yet.

The building of the treatment center for the penitentiary service which serve around 17 thousand prisoners and several thousand accused persons is extremely old; the building has very poor modern equipment and logistical support. It is reported the sick prisoners who want to get to the treatment center are claimed to pay some amount and there are observed difficulties with movement to the treatment center. Medication and other medical necessities are procured by the relatives of patients. Death cases are often observed among sick prisoners at the center. Volume and quality of the medical services rendered in prisons is much poorer than those medical services rendered outside. In spite of poor availability of medical personnel and technical capacity for intervention of some heavy diseases in prisons, there are no opportunities for treatment abroad regardless the heaviness degree. Most prisoners are infected with varous diseases, especially tuberculosis. After having been released from prison, there is very little chance for prisoners to live long and healty life.

State of prisons and rights of the accused persons

 

  • Adequacy of the Prisons to the UN Standard Minimum Rules for the Treatment of Prisoners on Prevention of Crime and Law violations and minimum standards depicted in European Penitentiary Rules;
  • Provide lawyer for the accused persons;
  • Opportunities of prisoners to appeal;
  • Reveal the facts of torture;

The facts of torture in Azerbaijan mainly happen during preliminary investigation process. Tortures are usually put not in lock-up wards, but also in rooms of criminal investigation officers, interrogators and prosecutors. They are doing so not to make other prisoners in prisons hear the voices of tortures at prisoners and accused persons. Despite NGOs and Ombudsman have contact numbers for making appeals at lock-up wards and isolation wards, there are no practical opportunity for those persons to appeal on the illegalities.

Problems at PDCs of the police department and stations of Ministry of Internal Affairs:

  • There are no women controllers at PDCs;
  • Chiefs at PDCs of district police departments are private policemen;
  • Cases of keeping more than 48 hours at PDCs have been observed;
  • There are no doctors at PDCs;
  • Most of the PDCs  are not provided with clean linens;
  • Outdated medicines are used at some of PDCs;
  • Accusers are not ensured advocates while initial questionary at police stations;
  • Rights of those detained at PDCs are not explained their rights;
  • Families of those detained at police stations are not informed about it;

-      PDC of Gadabay DPD needs refurbishment, PDC of Kurdamir district is nor constructed despite of our series appeals. PDC of Goranboy DPD needs refurbishment. PDC of Neftchala DPD have no toilets. PDC of Gadabay DPD does not meet the standards, needs refurbishment. Aghdam DPD has no PDC.

-      PDC of Chief Police Department of Transport needs refurbishment, air cleaners are out of order, lightenin is poor. Air cleaner PDC of Khatai DPD is out of order. Sumgait city PD’s PDC is in need of refurbishment.

Torture facts are hidden on different pretexts, our appeal are, as a rule, responded with the answer of “a torture fact has not been proved”.

Status of the Pre-trial Detention Center of Ministry of National Security:

There is an isolation ward under ministry. Most law violations occur here, those persons who committed heavy crimes have not been moved to the isolation wards in spite of the court resolutions. For the time being, former police colonel lieutenant who committed serial killings in Azerbaijan is detained at the same prison for several years.

 

Problems at the PDC of Ministry of Justice:

 

  • Limitations on the issue of appeals’ entering our committee has not been removed the administration of MJ to individually visit PDCs; Ministry of Justice has put restrictions on out committee to visit its PDC, because of our criticism against them;
  • Prisoners are beaten in the cameras of PDCs;
  • Floor of beds are of stone instead of wood;
  • Toilets of beds are in poor condition;
  • Most dormitories are without heating systems;
  • Bribe is required for prisons to meet their families;
  • 30-50 in cameras considered for 10 persons at the I and II corpuses of Shuvalan Pre-trial Detention Centers number 3;
  • Problem of lack of psychologists exists at PDC;
  • Medical section of the PDC number 5 is in a worthless condition;
  • Beds of Medical Institution of Ministry of Justice is in a worthless-unclean condition;
  • Majority of prisoners suffer from receiving their pensions;
  • Prisoner are bribed for ensuring visits, sending to Medical Institution, freeing them before expiration;
  • Social Committee established under Ministry of Justice has been set up only for praise MJ. Existence of this Committee has limited the possibilities of entry without barriers into the PDC and social participation in penal-execution system is on a par with non-existence.

Problems at Compulsary Treatment Center of Ministry of Health:

  • Sentenced patients can recieve a good care only through bribes;

Problems at Narcological Dispenser of Ministry of Health:

 

  • Sentenced patients are not provided with clean linen;
  • Sentenced patients suffer from insufficient feeding and sometimes mistreatment of hospital attendants;
  • Services for sentenced patients are available only upon bribes;

Problems in military units of Ministry of defense:

  • Soldiers are offended by commanders and sergeants;
  • Commanders urge solders to ask their families for money;
  • Commanders urge solders to charge counturs to their mobile balance;
  • Officers insult and beat soldiers.

Problems at courts

 

  • Mojarity of judges are not able to make independent decisions, wait for orders from higher instances, so protract court procedures for months;
  • Detention facilities at district courts to keep the charged no longer meet the standards and in a poor condition;
  • Torture facts are not carefully investigated at court processes;
  • Judicial medical examination is not independent, it is a body of the government, they are engaged in making any undesirable judgment;
  • Independent judicial medical examination is not available in Azerbaijan.

Note.

 

1) Anti-sanitation dominates and disease infection is high in closed boarding-schools.

2) The number of appeals on beating drivers by the officers of Transport Department has increased.

3) Despite of our monitoring at illegally established 3 meters deep under the ground Military Counter-Intelligence Agency detained person was not observed and said that no one had been detained there.

Apparatus of the Human Rights Defender (Ombudsman)

 

1)     Ombudsman apparatus of Azerbaijan should function independently;

2)     Ombudsman apparatus should take part as a human rights defender, not defend violations of law and officer arbitrariness. While, how pity that, the aforesaid are not implemented.

3)     According to the recommendations of the supplementary facultative protocols to UN’s CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT Azerbaijani government has identified the Ombudsman as an Additional Preventive Mechanism (APM). However, Azerbaijani Human Rights Defender possesses the powers of APM. It means reinstating the same power of Ombudsman again. Ombudsman apparatus, which organizes the work of the Additional Preventive Mechanism was formed from its members and not ensured public attendance. Presently, APM includes no independent expert, lawyer and NGO chairman.

4)     Ombudsman apparatus no longer combats against power structure officers’ abuse of power, and takes measures to punish the responsible for occurring cases. Shortly, hides torture fact. All these occur because of dependence of Ombudsman apparatus on the government, as well as appointed and financed by the government.

Methods of torture in Azerbaijan

As regards physical and psychological abuse made on the arrested, detained and imprisoned persons, they can be classified as follows:

  • Heavy blows on on various parts of the body with hands bound by blunt tool, kick and fist-beating;
  • Truncheon (beating under the feet with cudgel);
  • Press thumbs and toes in gate;
  • Remove toenail with pincers;
  • Tear ones’ hair;
  • Put electricity on the body;
  • Raping (make sit on the bottle);
  • Urinating (urinating on a person)
  • Not to enable to meet one’s natural needs;
  • Keep hungry and thirsty, deprived from medical services;
  • Threatening, insulting with abusive words, humiliation;
  • Menace by bringing the relatives to the investigation body;
  • Make a fuss;
  • After putting on the gas-mask, light cotton and discharge smoke through the air-hole;
  • Make to committing suicide;
  • Keep in unclean conditions, on rocky floor etc.

Hiding tortures

Appeals made for investigating torture facts and death facts publicly known are hidden with the following reasons:

-        It is reported the bodily injures are because of the falling from bed or when trying to run away from the place of incident;

-        Death-led torture facts are reported because of self-murder and heart sickness.

Note. In general, Azerbaijani Government considers that in case any fact of torture is confirmed, then the country may be acknowledged in the world as totalitarian state. Therefore, all resources and opportunities are used so that the fact of torture finds its confirmation.

Social control mechanisms

There are social control mechanisms over the prisons of the law enforcement agencies in Azerbaijan (lock-up wards, isolation wards, disciplinary cells, disciplinary units and prisons). Nowadays, there is social control committee on the penitentiary service under the ministry of justice for implementing social control on the prisons. Selection of the committee members is conducted by the special commission established by the government and the committee members have no permission to hold unlimited immediate monitoring. Before going to any prison, the visit is agreed with the penitentiary service in advance. It is one of the main indicators for untransparency of the selecting committee for selection of social control committee members are not independent members. On the other hand, any committee member who want to make his/her work independently remains aside next selections.

NGO representatives, who are not members to the same committee have no chance to hold monitoring at prisons and meet with the prisoners. Despite it is not allowed by the legislation, penitentiary service brings as an evidence for holding all these processes with Social Committee and does not permit other NGOs get into the prisons.

The police have several NGOs to hold unlimited and immediate monitoring at lock-up wards. These NGOs are selected and permitted by the ministry of internal affairs. Except for the ministry of justice, none of the law enforcement agencies have social control mechanisms.

According to the option protocol of the UN and Council of Europe Conventions on Tortures and Other Cruel, Inhuman or Degrading Treatment and Punishment, Ombudsman has been appointed as National Preventive Mechanism. But all members of the NPM are employees of the Ombudsman’s Office. None of the NGO representatives and independent experts have been involved in this process. OSCE and NGO representatives put forward 3 recommendations for providing social representation in the work of NPM.

-        Direct representation in NPM;

-        Participation as an observer (implement monitoring and other actions);

-        Take part as an expert.

 

But for the time being, this recommendation is being discussed.

 

Special cases creating tortures:

  1. absence of the publicly connected state committee for investigation of tortures;
  2. absence of special legislation on tortures;
  3. lack for the social control mechanisms or healthy environment for independent and transparent activity of the relevant authorities;
  4. continued cases of lots of information on tortures and cruel treatment in police stations and lock-up wads, as well as investigation cells and prisons;
  5. lack for overseer-women for checking accused and detained women at lock-up wards;
  6. as the article 133 of the code does not reflect the reference to the purposes of tortures mentioned under article 1 of the convention, and does not envisage prohibition of torture facts with the systematic beatings and other abusive actions and calling to account those authorities who closed their eyes to law violations and tortures, the notion of tortures in the new criminal code does not correspond with the article 1 of the convention;
  7. lack of information on the implementation of the article 3 of the convention, extradition of persons to a country where they may face with real torture fact and available rights and provisions given to the persons;
  8. lack of coordination between the legislation framework and its practical implementation and here are the following concerns:
  9. unavilabiliy of independent courts and medical examinations;

10. longer detainment of some persons at police stations for more than 48 hours which is set under criminal and procedural code and in exclusive cases available information on temporary detainment of persons in local police stations for around 10 days;

11. unavailability of independent lawyer and medical person for those who exposed to tortures at police stations and investigation cells; available information on some persons’ refusing to meet with the lawyer and meeting only with the medical experts based on the instructions of the management but not the person’s own desire;

12. in spite of the recommendations of the special reporter on tortures, investigation cell of the ministry of national security continues its activity and it is governed under the same state body, which implements investigation;

13. available information on pressures on the human righs defenders and human rights defending NGOs and attacking them;

14. special severe regime against those who are subject to life imprisonment;

15. illegal limitations on the opportunities of appeal for the imprisoned persons with correspondence censorship and provide the defense of punishment measures from plaintiffs by the government bodies;

16. not to hold immediate, unbiased and complete investigation of the tortures and cruel treatment by the member states, as well as inefficient efforts made for accusing the defendants who are charged in doing those actions;

17. not to establish an independent body in charge for making visits and controlling prisons and limited opportunities of NGOs to visit penitentiary services;

18. fact of getting compensation from lowest number of victims;

19. in most cases, judges refrain themselves to consider the facts of tortures and cruel treatments made on the prisoners, and not to demand independent medical examination or inavailability of information on returning the court cases for repeat investigation.

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