Working Group on Arbitrary Detention Statement upon the conclusion of its visit to Azerbaijan (16-25 May 2016)
The United Nations Working Group on Arbitrary Detention was invited by the Government of Azerbaijan to conduct a country visit from 16 to 25 May 2016. Mr Guevara, Vice Chair, and I, Adjovi, were accompanied by Ms. Rinaldi and Ms. Nechaeva, two staff of the Working Group’s Secretariat from the Office of the United Nations High Commissioner for Human Rights in Geneva, and two interpreters.
I would like to extend our gratitude and appreciation to the Government of Azerbaijan for inviting us to undertake this country visit. This invitation demonstrates the willingness of Azerbaijan to submit itself to the scrutiny of the international community through the independent experts. This is a laudable position bearing in mind that many States have not done so yet.
The decision to accept the invitation of the Government and conduct a visit to Azerbaijan was taken pursuant to deliberations of the Working Group in its full composition, in addition to the preparation of this visit. The observations we are presenting today constitute the preliminary findings which will serve as the basis of the forthcoming deliberations followed by the report that the Working Group will officially adopt and submit to the Human Rights Council at its September 2017 session.
During its 10-day visit, the delegation of the Working Group benefited from various meetings with State authorities in Baku, Ganja and Nakhchivan Autonomous Republic and appreciated the information provided. The delegation met with senior authorities from the executive, legislative and judicial branches of the State, including members of the Parliament and from the National Supreme Council of Nakhchivan Autonomous Republic, representatives of the Ministry of Defence, the Penitentiary Service and the Human Rights and Public Relations Departments of the Ministry of Justice, the Ministry of State Security Service, the Ministry of Labour and Social Protection of Population, the Ministry of Internal Affairs and the Ministry of Health, whether in Baku, Ganja or Nakhchivan city. The delegation also met with the Office of the Prosecutor of Azerbaijan, its representative in Ganja, as well as the Prosecutor of the Nakhchivan Autonomous Republic. The Working Group also had the opportunity to meet with members of the judiciary, including a Judge of the Constitutional Court of the Republic of Azerbaijan, the Chairman of the Supreme Court of Nakhchivan Autonomous Republic and the President of the Nizami Court of 1st instance in Ganja.
The Working Group visited 22 places of deprivation of liberty in the three locations, namely seventeen detention facilities, including some for women, juvenile offenders, organized crimes, migrants; two psychiatric hospitals as well as institutions for persons with psycho-social and intellectual disabilities, some for women and for children. It was able to confidentially interviewed 80 persons deprived of their liberty.
The Working Group acknowledges the efforts of the Government of Azerbaijan to internally ensure the compliance with international legal obligations, by adopting the Order N1938 of the President of the Republic of Azerbaijan on the approval of the National program for action to raise effectiveness of the protection of human rights and freedoms in the Republic of Azerbaijan, on 27 December 2011. It also recognizes the relevance for preventing torture or other cruel, inhuman or degrading treatment of the Law on the Rights and Freedoms of Individuals Kept in Detention Facilities, amended in 2012 and the recent renovations on some of the detention facilities.
The Working Group was also able to meet with representatives of the Ombudsperson’s office including the National Preventive Mechanism, the Ombudsperson of Nakhchivan Autonomous Republic, the President of the Bar Association, lawyers, civil society representatives and journalists.
The delegation, in most of the places of detention visited, received full cooperation from the authorities including unimpeded access to all the corners of the facilities in which persons might be deprived of liberty. Nevertheless, in the facilities of the Temporary Detention Centre for Combating Organized Crime, of the Investigative Isolator and of the Central Police Station, the delegation could not enter into several rooms closed with keys and even complete floors of the buildings that were connected to the detention facilities. Such a lack of cooperation by some authorities could contribute to the perception that illegal activities such as ill treatment of persons deprived of liberty are committed.
In accordance with international law, deprivation of liberty includes police custody, remand detention, imprisonment after conviction, house arrest, administrative detention, involuntary hospitalization, institutional custody of children, confinement to a restricted area of an airport, as well as being involuntarily transported. For determining that a detention is arbitrary the Working Group makes an analysis on the basis of the five categories outlined in its Methods of Work, namely, 1) when it is clearly impossible to invoke any legal basis justifying the deprivation of liberty; 2) when the deprivation of liberty results from the exercise of certain rights guaranteed by the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights; 3) when the right to a fair trial has been seriously violated; 4) when asylum-seekers, immigrants or refugees are subjected to prolonged administrative detention without the possibility of an administrative or judicial review or remedy; and 5) when the deprivation of liberty constitutes a violation of international law on the grounds of discrimination of any kind.
In the present case, the delegation will provide its preliminary findings on detention in the context of migration, of health and disability, and of the criminal justice.
I. Deprivation of liberty in the context of migration:
According to the Migration Code of the Republic of Azerbaijan, foreigners or stateless persons who avoid leaving the territory of the Republic of Azerbaijan are detained in compliance with the court decision issued on the basis of appeal from the relevant executive authority and placed in the Detention Centre for Illegal Migrants until being expelled. Foreigners and stateless persons can be voluntarily placed in this centre.
During its visit at the Detention Centre for Irregular Migrants in Kurdakhani, the Working Group could observe that asylum-seekers were also placed in this facility at the same time as some convicts who have served their sentence and were awaiting their voluntary return to their country of origin. The conditions of the facility seemed adequate. Despite the information received from the authorities that migrants were free to leave the Centre once they had made the relevant application, the Working Group could observe that only one of the seven detainees present had effectively exited and returned to the facility, while others were not aware of such a possibility.
II. Deprivation of liberty in the context of health or disability:
The term “deprivation of liberty” extends to psychiatric or other medical facilities or any other facility where individuals remain under constant surveillance and/or do not enjoy their freedom of movement. It is important to recall that the existence of a health condition or a disability shall never in itself justify a deprivation of liberty. Contrary to that principle, during its visit, the Working Group observed a common practice of placement of persons with mental impairments or a variety of disabilities in secluded institutions.
More specifically, the Working Group visited psycho-neurological centres under the Ministry of Labour and Social Protection, and received information from authorities that men and women are deprived of their liberty for lengthy periods of time, sometimes for their entire life, on the basis of an actual or perceived disability. For instance, the delegation came across an instance where the only statement by the qualified personnel about the condition of the teenage patient was “being nervous and having difficulties to establish communication with others” which was translated into a diagnosis of “mental retardation”. That teenager was brought to the Centre by her parent and had already spent 8 years in the institution at the time of the visit.
According to information received from the respective managements, the average duration of stay ranges from 10 to 15 years in the child institution; and from 20 to 25 in the women’s one. Indeed, it appeared from the consultation of registers of the institution for women that a high proportion of them had been institutionalised since their early childhood and the probability for them to remain there until their death was very high. In other words, being a person with disability would often be interpreted as a life sentence. This is obviously contrary to international human rights standards.
The delegation was informed that the institutionalisation of persons with disabilities is often the result of the decision of parents, of alternative care institutions or of the administration of social services. In some instances, families are not even aware of the location where their relatives have been placed. The management of one of the institutions for persons with disabilities reported to the Working Group that in 2015, 8 families discovered through a TV programme that their family members had been placed in one those centres.
From the information received by the authorities, the delegation observed that adults and children with mental disabilities had been confined without any clear procedure to exercise their right to challenge their placement in an institution and that their living conditions were not regularly assessed. Hence, it appeared to the delegation that those persons had almost no possibility to be released at any time. The Working Group could not obtain information as to their access to any effective remedy for the vindication of their rights, including initial and periodic judicial review of the lawfulness of such a detention and their conditions of detention.
The Working Group observed dire conditions of living and high levels of negligence in the institution for women: some of the residents were living behind bars in a building in a state of disrepair with walls covered with mold, some of them with physical disabilities were on a fourth floor with no elevator. In addition, the centre was in extremely unhygienic conditions with only two toilets and two showers for 50 women per floor. During the visit, the Working Group witnessed that there was no light in the toilets, no protection of privacy in the bathroom, waste water in the bath. Most of the women were lying on their respective bed due to the absence of any organised activity in the institution. The Working Group could also observe that restrictions were imposed in both institutions on the freedom of movement of these persons. During the sunny afternoon of the visit to the institution for children, the delegation did not see a single child playing outside the facility and was told that sun exposure might worsen the psycho-neurological state of these children.
The Working Group was dismayed when it heard from the administration of one of the centres about the application of chemical restraints accompanied in the case of children with “light” electroshocks. The delegation was also informed of the general practice of forced medication in case of any refusal to take the daily drugs prescribed.
With regards to the detention of people in psychiatric care institutions by judicial decision, the Working Group is aware that the Law on Psychiatric Assistance regulates the admission and treatment, including on involuntary basis, of patients in psychiatric care institutions under the Ministry of Health. The involuntary treatment of patients can be initiated following a judicial decision. The Working Group was informed that, at the initial court hearing, patients are not able to challenge the hospital’s expertise by producing their own independent medical practitioner for a counter-expertise. Even at later review stages, independent expertise is rarely employed which creates the condition for an indefinite detention.
The Working Group observed that many patients in psychiatric institutions were held against their will. Even those who may have voluntarily entered the facilities could not leave them freely and easily. The Working Group did not receive any information on the establishment of an independent monitoring and inspection system for such facilities, one that would ensure that all places where mental health patients are held for involuntary treatment are regularly visited to guarantee the proper implementation of the safeguards, as recommended by the Committee against Torture. In addition, the Working Group was able to attest poor living conditions in psychiatric institutions visited in Baku and Ganja.
III. Deprivation of liberty in the context of the Criminal Justice system
Let us turn to the deprivation of liberty in the context of the criminal justice. At the onset of this section, it is important to recall a very basic principle of international law: “liberty should be the rule and detention the exception”. Deprivation of a person’s liberty must at all times be objectively justified and the grounds of detention assessed, based on facts and not on mere subjective suspicion. In every single place the delegation visited, it could observe that many persons had been detained without a proper assessment of the need for them to be detained and for a very long period of time, especially in pre-trial detention and in places under the Ministries of Health and Labour. In addition, it seemed to us that the wide use of detention in Azerbaijan stems, among others, from the existence of a high number of authorities with power to deprive persons of their liberty. Moreover, the Working Group observed that for the same offence, a person might be placed in detention under the responsibility of the Ministry of Justice, the Ministry of Internal Affairs and the State Security Services. That was the case for different individuals with the same offence who we found in different locations under different authorities. Those general concerns expressed, we will now consider various relevant rights.
1) Legal definition of offences:
According to international law, any substantive grounds for arrest or detention must be prescribed by law and should be defined with sufficient precision to avoid overly broad or arbitrary interpretation or application. This specifically applies to the most serious crimes including terrorism. The Working Group will fully elaborate on this matter in its final report. It is sufficient here to recall the Joint Study on Global Practices in relation to secret detention in the context of countering terrorism and the recommendations therein.
2) Administrative offences:
The delegation observed that, in Azerbaijan, people could be deprived of liberty for administrative and criminal offences. Notwithstanding the difference between those two types of offence, they will be addressed jointly in the context of our analysis of the criminal justice system as they are part of the criminal justice and, as such, the core principles of every criminal justice must been established for a better protection of the citizens and the residents.
Among the administrative offences defined in broad and imprecise terms which lead to deprivation of liberty on unreasonable grounds are the so-called offences of hooliganism and refusal to obey public authorities. In addition, the sentences for these administrative offenses are often disproportionate. A very illustrative example in this respect relates to two young men who were serving their sentences for disobedience to the police: each of them was having a verbal quarrel over the phone while in a public park and, for not complying with the request by the police to stop, was arrested and convicted a few hours later to respectively 10 and 15 days of prison, without any legal representation. The Working Group considers that efforts should made in order (i) to provide clarity on the law as to what are the incriminating acts, (ii) to ensure proportionality between the offences and the related sentences, (iii) to ensure strict separation between the law enforcement agents and the prosecution authorities, and (iv) to ensure that the principle of contradiction in the criminal justice is fully respected.
3) Right to be informed of the charges
Everyone charged with a criminal offence shall be promptly informed and in details in a language that he or she understands of the nature and cause of the charges against him or her.
Infringement of this right has been observed especially with children, persons with disadvantaged backgrounds and low literacy skills and persons of foreign origins. In particular, the Working Group met with an adolescent who indicated that at the time of arrest, he was unable to understand anything in relation to his judicial process. Another detainee was requested to sign documents presented in Latin script that he could not read.
The Working Group also met with a foreigner accused of a crime and held in a temporary detention centre. That detainee explained to the delegation that he did not understand Azerbaijani and had not yet understood the reasons of his arrest because the interpreter did not provide sufficient information during the hearing. Notwithstanding he had to sign documents which he indicated as being written in Azerbaijani, a language that the law enforcement agents know that he does not speak or read.
The Working Group was also particularly disturbed by the arrest of persons for administrative offences and their subsequent investigation under criminal charges. In particular, the Working Group met with 6 individuals of different nationalities who were detained for administrative offences, but held in detention in the Investigative Isolator and Temporary Detention Facility of the State Security Service in Baku. The Working Group was informed that such facilities could only receive persons suspected of especially grave crimes such as terrorism, human trafficking, treason and drug related crimes. Authorities informed the delegation that these six persons were actually investigated for other serious crimes, while none of them was informed that investigations were being conducted against them in connection to other crimes than the aforementioned administrative offences.
4) Effective access by legal counsel and access to legal aid
The right to legal assistance is an essential safeguard for individuals involved in any criminal justice process. Access to a legal counsel shall be provided without delay after the moment of deprivation of liberty and, at the latest, prior to any questioning by any authority, and throughout the period of detention. This includes providing detainees with the means to contact legal counsel of their choice. Such a rule also applies in cases where the person is deprived of liberty for administrative offences.
Although the Constitution, as well as the Code of Criminal Procedure, enshrine the right to legal assistance including the right of any person from the moment of detention to meet in private and in confidence with his/her lawyer, in practice, the delegation received overwhelming information on the inobservance of this right by different authorities, against the interests of both adult and juvenile offenders.
Throughout the interviews conducted with detainees, the Working Group observed that: 1) many persons arrested and detained had never had the chance to see a lawyer; 2) the vast majority of them were provided with a State lawyer selected without their involvement; 3) most of the detainees were not afforded the opportunity to meet with their lawyer in private at any stage of the process and/or only met with their lawyers during interrogations and court hearing even when accused of the most serious offences. Such a practice undoubtedly bypasses critical steps of the criminal process.
A high number of testimonies collected during the mission point out that the only advice given to detainees by State lawyers was to cooperate with investigators and to confess the offence they had been incriminated for. Some detainees interviewed were not even aware of their possibility to be legally assisted during judicial proceedings or of their right to appeal a court decision.
The Working Group believes that such a situation may be the results of either the low number of lawyers in the country that could represent accused persons before the courts, the lack of expertise of lawyers to properly advise the individuals facing the criminal justice at all stages or their possible lack of independence. The delegation received abundant information related to the denial, obstruction or restriction of the right of accused or convicted persons to be legally represented and to communicate freely with their lawyer, in particular by the administration of some detention centres especially those dealing with the most serious offences.
The Working Group recognizes however that such an assessment contrasts with the views expressed by the President of the Bar Association for whom there is currently no shortage of lawyers in the country and that anyone arrested gets proper legal assistance from the single thousand of lawyers operating in the country. Yet, in Ganja, the second largest city of the country, qualified public officials acknowledged shortcomings in this respect and provided the Working Group with the figure of only 40 lawyers practicing in the region. In the Nackhchivan Autonomous Region, similarly qualified authorities mentioned that the local Bar Association had only 20 lawyers registered who were thus able to represent defendants before criminal tribunals.
In relation to the independence of the legal profession, the Working Group is concerned by the information received regarding certain disciplinary measures and in particular the suspension and subsequent disbarment by the judiciary of two lawyers involved in cases of political activists. The Working Group has not received any information which could objectively justify those disciplinary sanctions and is convinced that such decisions negatively affect the independence of the lawyers.
5) Prohibition of torture and other forms of ill treatment:
Everyone charged with a criminal offence has the right not be compelled to give incriminating evidence or to confess guilt. Any statement which is established to have been made or any other evidence obtained as a result of torture or other cruel, inhuman or degrading treatment shall not be accepted as evidence in any proceedings.
The Working Group received a large number of testimonies during its mission from juveniles, women and men about the torture and ill treatment they had been reportedly subjected to, while in custody before different authorities.
This practice aims in most of the cases at obtaining confession from the detainees or at coercing them to sign the police “protocols” in administrative offences. Such violence was reported to the Working Group by persons currently detained or previously detained in all detention places visited which were related to the criminal justice. The interviewees described having a gun pointed at their head, severe beatings, sometimes lasting several hours, verbal abuse and psychological pressure, practices such as standing on one’s knees for long hours, threats of physical and sexual abuse as well as threats to arrest family members. The delegation received various testimonies of adults and juveniles who reported having been the victims of torture and ill treatment on the 2nd and 6th floors of the building of the Temporary Detention Centre and pre-trial prison under the auspices of the State Security Service.
In one of the detention facilities, the Working Group sought access to the basement of the facility where torture was reported by highly reliable sources. When asked, public officials recognized misconducts by the previous administration of the facility which led to the ongoing legal proceedings against the previous head of the facility without further details. The Working Group is of the strong view that the conditions in which detainees, including children are held in this facility amount to inhuman and degrading treatment (state of despair of the buildings, squalid sanitation installations, presence of rats in cells and corridors, extreme lack of ventilation in overcrowded cells where inmates are forced to take turns to sleep on a bed, etc.).
The Working Group received information from officials that numerous investigations on torture were taking place, but nevertheless did not receive exact data on the investigations conducted and their outcome, including sentencing of the perpetrators. The delegation also received frequent allegations that the hotline provided by the Ombudsman to denounce instances of torture and located in some of the facilities does not work at all. The delegation could also observe that posters on the hotline were inexistent or inaccessible to detainees in most of detention centres visited.
6) Right to be tried without undue delay and to be able to be promptly brought before a judge:
Everyone charged with a criminal offence shall have the right to be promptly brought before a judge and to be tried without undue delay. Any delay longer than 48 hours before being presented to a judge after arrest and detention must remain absolutely exceptional and be justified under the circumstances. The national judicial authorities are to ensure that the pre-trial detention of an accused person does not exceed a reasonable time. These international norms are reflected in the Code of Criminal Procedure of the Republic of Azerbaijan stating that if no decision is taken within 24 hours of the person being detained, the person must be released immediately and even if such decision is taken, the detention of the person may not exceed 48 hours. Furthermore, the same legal instrument establishes time limits of pre-trial detention depending on the gravity of the crime. However, this period of pre-trial detention can be prolonged to up to 18 months for the completion of criminal investigations.
The Working Group was able to attest multiple occurrences when these legal provisions were not upheld in practice. For instance, the Working Group has gathered evidence of persons detained for several days in police stations and temporary detention facilities without being presented to a judge. Furthermore, the Working Group came across instances of judges simply prolonging the duration of detention on remand without due assessment of the circumstances. In addition, not in a single instance considered by the Working Group, whether in the testimonies or interviews with authorities including the case law provided, has a detainee been questioned by the judge on his treatment in custody.
7) Children’s rights and juvenile justice system:
In accordance with international standards, arrest, detention or imprisonment of a child should be used only as a measure of last resort and for the shortest appropriate period of time.
In 2012, Azerbaijan adopted the Law on the Rights of the Child which contains guarantees in line with international standards. Nevertheless, the delegation could hardly see any difference between the treatment of children and adults by the criminal justice system. Children are equally detained without any consideration of alternatives to detention. In one instance, the Working Group was even informed by an official that for certain grave crimes the detention of the juvenile was compulsory and that no alternative could be considered.
During its visit to the Juvenile Detention Centre of Baku, the Working Group could get a precise idea of the exclusively punitive nature of the criminal justice system towards minors. Among the 35 adolescents held in this centre, one third had been convicted as primary offenders for offences such as robbery, intimidation, theft of a vehicle. or driving a vehicle without the right to do so and were condemned to sentences up to seven years of imprisonment. During its discussion with various authorities, the Working Group did not receive any information on the development of alternatives to detention, including education measures, referral to social services and probation, among others.
The Working Group also gathered evidence that the various shortcomings identified above in terms of information on charges, access to legal assistance, duration of stay in police stations and pre-trial detention similarly apply to children with obviously more devastating impact.
In police stations, there is no specific facility for children in conflict with the law and children could therefore be held together with adults. Torture and ill treatment of children have been reported especially in police stations and during the first hours of detention for interrogation. While the Criminal Code provides that criminal proceedings concerning minors shall be conducted without delay, there is no specific limitation of pre-trial detention for children in violation of international legal standards.
Moreover, the only detention facility for convicted juveniles is located in Baku, far from most of their families if they committed their crime in other parts of the country than Baku and its neighbourhood. Such a situation certainly prevents some of these children from maintaining family relations. Finally, the Working Group visited some juveniles held in the pre-trial prison in Ganja, in extremely precarious conditions including posing danger for their health.
The Government needs to make an urgent shift in its practice to limit detention of juveniles to the most exceptional instances. Building a comprehensive juvenile justice system entails the development of a wide range of measures to ensure the best interest of the child, as well as to guarantee that children are treated in a manner appropriate to their well-being, and proportionate to both their circumstances and the offence committed. These should include care, guidance and supervision, counselling, probation, foster care, educational programs, and other alternatives to institutional care.
8) Allegations of corruption of law enforcement authorities and the judiciary:
The Working Group is deeply concerned by the allegations too often heard that persons suspected or accused of an offence are frequently victims of corruption by law enforcement officials or judicial authorities.
The Working Group was informed by a juvenile of a mother being requested by the Prosecutor’s Office to pay a bribe in order to have the charges against her son soften. Furthermore, the Working Group was informed of a case in which the police harassed and demanded bribe for a minor administrative infringement: the failure of the person to bring the requested amount led to charges before a court of first instance.
Information was also shared with the Working Group about officials from detention facilities reportedly involved in extorting money in exchange of services within the facilities, including family visits and authorization to receive parcels from their families. In one of the detention places, inmates reported that money (70 Manats) was being requested for family visits, this resulting in some families not being able to afford seeing their children.
IV. Arbitrary detention in the context of the exercise of human rights or fundamental freedoms guaranteed by international norms
During its visit, the Working Group could observe the severe limitations placed on the work of human rights defenders, journalists, political opponents and religious leaders. This assessment coincides with the findings of the European Commissioner for Human Rights who expressed concerns about the Law on Freedom of Assembly, the Criminal Code and the Code of Administrative Offenses. Indeed on 14 May 2013, the Parliament adopted amendments to the Code of Administrative Offenses extending the maximum period of administrative detention from 15 days to two months, notably for those violating the rules for holding rallies. In 2015 the Committee against Torture expressed its serious concerns about these legislative amendments and the punishment of NGO members with heavy prison sentences.
In addition to the human rights defenders, journalists, political and religious leaders met in detention facilities, including prisons, the Working Group also met with persons who had served their sentence or were pardoned and received a list of some 70 human rights defenders, journalists, political and religious leaders currently detained on a broad range of charges (drugs and arms related offences, hooliganism, tax evasion, etc.).
The most recent example in this respect was the arrest on 10 May 2016 of two students who reportedly drew a graffiti “Happy Slave Day” on a statue of the former president of Azerbaijan, in Baku centre, as a political protest. Both reported having been subjected to violent interrogation techniques at a police station before being placed by the Khatai District Court under a four-month pre-trial detention for drug-related charges. The Working Group could visit the two students in Kurdahani pre-trial detention facility and observed what seemed to be physical sequels of such treatment.
While fully taking into account the pardon decree signed by the President of Azerbaijan on 17 March 2016 which resulted in the release of political prisoners and prisoners of conscious, the Working Group was unable to observe any significant change in the country with respect to this situation regarding other persons deprived of liberty for apparently the same reasons. The Working Group holds the view that human rights defenders, journalists, political and religious leaders continue to be detained under criminal or administrative charges as a way to impair the exercise of their basic human rights and fundamental freedoms and to silence them. These practices constitute an abuse of authority and violate of the rule of law that Azerbaijan has agreed to comply with.
Those are our preliminary findings. We will continue the constructive dialogue with the Government towards the deliberations of the Working Group in its full composition and the final report. But we can already recognize that the initiative of inviting the Working Group is the starting point of the reforms that the Government is envisaging and we are honoured and committed to accompany the Government and the peoples of Azerbaijan in such a laudable journey.