Torture and ill-treatment:
Comments on the forthcoming review by the United Nations Committee against Torture
In November 1999 the United Nations (UN) Committee against Torture in Geneva will examine Azerbaijan's Initial Report about the measures the country has taken to implement the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention against Torture). On the eve of this review Amnesty International remains concerned that Azerbaijan has failed to implement fully its treaty obligations, as allegations that people are being subjected to torture and ill-treatment by law enforcement officials are persistent and widespread. These allegations issue from a range of Azerbaijan's places of detention, in both political and criminal cases, but have not only related to detainees - law enforcement officials are also reported to have abused lawyers, journalists, opposition politicians and demonstrators. And in the army, conscripts are said to have been subjected to brutal hazing while officers turn a blind eye.
A lack of safeguards and procedures from the beginning of detention, and a failure to abide by regulations that do exist, leave people at risk of violations of their fundamental right not to be subjected to torture or ill-treatment. There is no requirement at present for a detained person to be brought promptly before a judge, nor are there any procedures whereby a person can challenge in court the lawfulness of their detention or their continued detention - violations of Azerbaijan's fair trial obligations under the International Covenant on Civil and Political Rights.
State agents have also obstructed access by lawyers, family members, and independent doctors to those held pending trial. There have been persistent allegations that physical and mental abuse has not only flourished in those conditions, but also become a routine tool for obtaining confessions and coercing testimony, or for intimidation and extortion. In many cases the victims of torture and ill-treatment - isolated and feeling vulnerable - do not lodge official complaints at the time, afraid that they will make their situation worse, fearing reprisals, or simply having no faith that officials will launch prompt and impartial investigations. Often they fear even to request a doctor to record or treat injuries, and investigators can refuse requests by detainees and their lawyers to arrange a forensic medical examination. Deprived of this avenue of proving allegations of torture or ill-treatment many victims wait to speak out at a public trial, but then find judges reluctant to order comprehensive inquiries into their allegations, or to exclude as evidence testimony said to have been obtained under duress.
Other obstacles arise even if complaints are made at the time of the alleged torture or ill-treatment. The criminal code does not contain a separate offence punishing torture as defined in the Convention against Torture. In some instances prosecutors are said to have been reluctant to open criminal cases against law enforcement officials for torture or ill-treatment, even when they have received a complaint that a person has been tortured or ill-treated by an agent of the state. In other instances it has been alleged that when cases have been opened, the authorities have failed to initiate thorough, prompt and impartial investigations. Cases have often been closed for lack of evidence after what is allegedly a perfunctory investigation, with the result that the allegations are never tested in court.
Amnesty International is deeply concerned that the authorities' failure to meet their obligations to initiate impartial and thorough allegations of ill-treatment and torture, and the failure to bring alleged perpetrators to justice in the course of full and fair proceedings, creates both an impression that torture and ill-treatment by law enforcement officials is acceptable conduct, and also allows law enforcement officials to engage in such conduct and violate people's human rights with impunity.
This report examines such issues, and concludes with Amnesty International's recommendations to the Azerbaijani authorities.
2. WHAT IS THE CONVENTION AGAINST TORTURE?
The Convention against Torture was adopted by the General Assembly of the United Nations on 10 December 1984. It is an international human rights treaty aimed at protecting all persons against torture and ill-treatment. Governments which ratify the convention, referred to as ''States Parties'', agree to be legally bound by its provisions and to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under their jurisdiction. No exceptional circumstances whatsoever may be invoked as a justification for torture.
States Parties to the Convention against Torture also undertake to ensure that all acts of torture as defined within the convention are offences under their criminal law, punishable by appropriate penalties which take into account the grave nature of the offence. In connection with this States Parties have a duty to instigate prompt and impartial investigations whenever there is reasonable ground to believe an act of torture has taken place, and they are obliged to ensure that any individual who alleges torture has a right to complain, and to have the case heard promptly and impartially.
In addition, the Convention against Torture provides for a system of universal jurisdiction. This means that a state party is obliged to prosecute or extradite (to a state which will fairly prosecute) anyone on its territory alleged to have committed torture, no matter where the act is said to have taken place. States Parties are not to expel, return or extradite a person to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. The Convention against Torture also obliges states parties to keep rules and methods of interrogation under systematic review and to prohibit the use of testimony elicited by torture, as well as to provide training and education regarding the prohibition of torture for law enforcement officials and others involved in the custody, interrogation or treatment of any person who is arrested, detained or imprisoned. States parties to the convention are also to ensure that a victim of an act of torture obtains redress and has an enforceable right to reparation, including fair and adequate compensation.
Implementation of the Convention against Torture is monitored by a 10-member body of experts known as the Committee against Torture, which is elected by the states parties to the convention. The committee examines periodic reports from states parties about the measures they have taken to implement the convention and - if the state has agreed to this procedure - examines complaints, including from individuals who claim they have been tortured or ill-treated by or with the consent or acquiescence of state agents.
Azerbaijan became a party to the Convention on 16 August 1996, but has yet to agree to the procedure which would allow the Committee against Torture to examine complaints by individuals or other state parties.(1) The Committee against Torture is set to review Azerbaijan's initial report on its implementation of the Convention against Torture during its forthcoming 23rd session. This meeting will be held in Geneva, Switzerland, from 8 to 19 November 1999.
2.1 Azerbaijan's other commitments to prohibit torture
In tandem with the binding commitments under the Convention against Torture, torture is forbidden under Article 7 of the International Covenant on Civil and Political Rights(2), to which Azerbaijan acceded on 13 August 1992. The Constitution of the Azerbaijani Republic(3) prohibits torture and humiliating treatment,(4) and evidence obtained through violation of legal proceedings has no legal force.(5) In addition it is a criminal offence for investigators and others to force a person to give testimony by use of threats or other illegal actions,(6) or to force an accused person or a witness to give false testimony.(7) The criminal code contains other articles punishing torture and forms of ill-treatment (although none contains the definition of torture as given under the Convention against Torture, see section 7.1 below).
In spite of all these provisions, however, local(8) and international non-governmental organizations, including Amnesty International, continue to receive persistent allegations, from a wide variety of different and unconnected sources, that law enforcement officials have engaged in torture and ill-treatment. These have been compounded by allegations that in many cases the response by officials has been at best reluctant, and at worst obstructive or dismissive, leading to a perceived climate of impunity. Concerns about the lack of safeguards to protect people from torture and ill-treatment, and the lack of legal redress for those who allege such abuse, are detailed below.
3. PRE-TRIAL DETENTION
In most of the reports received by Amnesty International relating to people held in custody, the alleged torture or ill-treatment by law enforcement officials is said to have taken place during periods of short-term detention or arrest, or while people are being detained prior to trial. The aims are said to have included forcing a confession or testimony; extracting other information; putting pressure on detainees through ill-treating relatives or friends; or simply extortion - beatings to back up demands for money in exchange for release or the dropping of charges.
Most such reports received by Amnesty International have come from the capital, Baku, concerning a range of places of detention there, including temporary detention cells in police stations, the Baku City Main Police Directorate, and the Ministry of the Interior's Department to Combat Organized Crime. (Reports of torture and ill-treatment have also been received from places outside the capital, however, and the fact that they are fewer in volume may be a reflection of such difficulties as poor communications and infrequent access to non-governmental organizations or journalists willing to report such instances.) Allegations of torture and ill-treatment have been made in both criminal and political cases.(9)
3.1 Scope for torture - no requirement to be brought promptly before a judge
Given that pre-trial detention is the norm in Azerbaijan, rather than the exception (see section 3.2 below), one factor facilitating scope for torture is that there is no requirement at present for a temporarily detained person to be brought promptly before a judge, nor are there any procedures whereby a person can challenge the lawfulness of their detention in court - violations of Azerbaijan's fair trial obligations under Article 9 of the International Covenant on Civil and Political Rights.
3.1.1 The right to be brought promptly before a judge or other judicial officer
In order to safeguard the right to liberty and freedom from arbitrary arrest or detention, and in order to prevent violations of fundamental human rights, international standards stipulate that all forms of detention or imprisonment must be ordered by or subject to the effective control of a judicial or other authority. Anyone arrested or detained must be brought promptly before a judge or other officer authorized by law to exercise judicial power.(10) The purposes of the review before a judge or other judicial authority include to assess whether sufficient legal reason exists for the arrest; to assess whether detention before trial is necessary; to safeguard the well-being of the detainee; and to prevent violations of the detainees' fundamental rights. This procedure often provides the detained person with their first opportunity to challenge the lawfulness of their detention and to secure their release if the arrest or detention violated their rights.
Regarding officers authorized to exercise judicial power, if the detained person is brought before an officer other than a judge, the officer must be authorized to exercise judicial power and must be independent of the parties concerned, for example the detaining authority. All those exercising judicial authority must be independent - they must fulfil the criteria set out in the UN's Basic Principles on the Independence of the Judiciary.
In Azerbaijan, however, decisions to arrest and detain a person, including questions on the legality of detention and on prolonging detention, fall not with the courts but with the prosecutor's office, which is still based on the Soviet model and has wide powers and responsibilities. On the one hand the prosecutor's office has a supervisory function in ensuring that legality is observed in the administration of criminal justice, for example by investigating alleged police abuses and complaints about conditions of detention and ill-treatment. On the other hand this body is also the public prosecution service, working with the police in sanctioning arrest, presiding over the investigation, and representing the case in court.
Interestingly, given Azerbaijan's application to join the Council of Europe, the European Court has held that there was a violation of Article 5 (3) of the European Convention on the Protection of Human Rights and Fundamental Freedoms - which guarantees the right ''to be brought promptly before a judge or other officer authorized by law to exercise judicial power'' - when the ''other officer'' was a public prosecutor who could intervene in subsequent proceedings as a representative of the prosecuting authority.(11) Noting the exclusive control of the prosecutor's office in Azerbaijan over decisions to arrest and detain a person, two delegates appointed by the Council of Europe to report on the conformity of the country's legal system with Council of Europe standards noted in their September 1997 report:
''In this context we wish to recall the strict requirements of Articles 5 paras. 3 and 4 of the European Convention on Human Rights, which impose on the authorities the duty to bring a person deprived of his liberty ''promptly'' before a judge and to provide for effective habeas corpus proceedings in case of continued detention. Presently the legislation and practise in Azerbaijan do not appear to meet these requirements.''(12)
3.1.2 The right to challenge the lawfulness of detention
There is also no procedure at present in Azerbaijan whereby a detainee can exercise their internationally-guaranteed right to challenge the lawfulness of his or her detention in court, or to challenge their continued detention.
Under Article 9 (4) of the International Covenant on Civil and Political Rights, everyone deprived of their liberty has the right to take proceedings before a court to challenge the lawfulness of their detention.(13) This right safeguards the right to liberty and provides protection against arbitrary detention and other human rights violations. This right differs from the right to be brought before a judge, as described in section 3.1.1 above, because it is initiated by the detainee or on the detainee's behalf, rather than by the authorities.
Governments are required to create procedures for challenging the lawfulness of detention and obtaining release if the detention is unlawful. Such procedures must be simple and expeditious, and free of charge if the detainee cannot afford to pay.(14)
Commenting on the lack of this safeguard last year, the General Prosecutor of Azerbaijan, Eldar Hasanov, himself expressed support for moves to introduce the procedures providing a detained person the means to exercise their internationally guaranteed right to have a court review and supervise their detention.(15)
This lack of safeguards and procedures means that a detainee awaiting trial first appears before a judge only at the beginning of the court hearing of the case (which can be months after detention), and that detainees' only recourse for complaints - about detention or torture and ill-treatment - is the procuracy, the same body responsible for deciding to detain and prosecute them.
3.2 Lack of access to the outside world
The Azerbaijani criminal justice system, which still uses many codes and procedures inherited from the Soviet system, follows the latter's emphasis of isolating a suspect prior to trial,(16) and pre-trial detention is still the norm in Azerbaijan, rather than the exception.(17) In practice this means that although non-custodial options are available in law, suspects are usually held in custody (commonly in overcrowded conditions) rather than released on surety or their own recognizance, even if charged with minor offences.
International standards relating to the treatment of people deprived of their liberty stress that those in pre-trial detention should be granted access to people such as their defence lawyer, doctor or dentist, and their family. However, another of the factors facilitating torture and ill-treatment in Azerbaijan is the obstruction faced by some detainees - during the period of maximum vulnerability immediately after detention - in obtaining access to those outside the penal system: family members, independent medical practitioners, and even defence lawyers.
3.2.1 Lack of access by the family
Anyone who is arrested, detained or imprisoned has the right to inform, or have the authorities notify, their family or friends. This notification is to take place immediately, according to Rule 92 of the UN Standard Minimum Rules for the Treatment of Prisoners.(18) According to the Azerbaijani code of criminal procedure, however, authorities have up to three days to inform the family of someone detained that they have taken him or her into custody, leading to a potential period of unacknowledged incommunicado detention. An example is the case of Rasim Agayev, see below in section 3.2.2, whose family, despite frantic effort to locate him after he was first taken into custody, was unable to determine his whereabouts for three days after his detention.
International standards also stipulate that people held in pre-trial detention are to be given all reasonably facilities to communicate with family and friends and to receive visits from them.(19) In Azerbaijan the investigator in the case has discretion whether or not to grant access to family members. In practice, however, in many cases such access has reported been denied for long periods while the investigation is under way. To cite again the example of Rasim Agayev in section 3.2.2 below, his family report that it was two months before they were permitted to visit him for the first time following his detention.
3.2.2 State agents obstruct access by defence lawyers
Under international standards, everyone in detention or facing a possible criminal charge has the right to the assistance of a lawyer of their own choice to protect their rights and to assist in their defence. If the person cannot afford to hire a lawyer, effective, qualified counsel should be assigned. The person must be given adequate time and facilities to communicate with their lawyer. Access to counsel should be immediate.(20)
Although the right to prompt access to a defence lawyer is guaranteed under the Constitution of the Azerbaijani Republic(21), there have been many reports of lawyers being prevented from seeing their clients, particularly in the initial period after detention.
An example of state agents obstructing the rights to prompt access to family members and to a defence lawyer is the case of Rasim Agayev, a political scientist and journalist who was sentenced to a four-year term of imprisonment in June 1998 for ''concealing a crime against the state'' (Article 82-1 of the Criminal Code). Rasim Agayev's legal team claim that there were numerous procedural violations in the case, including that their client was denied access to a defence lawyer until the fourth day of his detention, and that Rasim Agayev initially made a statement confessing to one charge in the indictment only after officials threatened to prosecute a family member on an allegedly false charge. He later retracted his statement. Amnesty International expressed concern about these allegations, and also about claims that the charges against Rasim Agayev were fabricated in order to punish his known or imputed political views (linked, among other things, with his former role as press secretary of ex-President Ayaz Mutalibov; his membership of the opposition Labour Party; and his support for that party's idea of a ''Euroasian union''(22)).
Rasim Agayev was detained by officials from the Ministry of National Security (MNS) on 25 November 1996 at his place of work, the Academy of Sciences in Baku, and taken to the MNS investigation prison. His home was also searched that day by MNS officials. Reportedly, the grounds for his detention were that the year before in Moscow Rasim Agayev had met with fugitive former Prime Minister Suret Huseynov, wanted by the Azerbaijani authorities in connection with an unsuccessful coup attempt in October 1994.(23) Rasim Agayev was subsequently placed under arrest and charged with treason, under Article 57 of the criminal code. His legal team have claimed that his rights were violated throughout the course of proceedings against him. It is alleged that Rasim Agayev's family were initially told he would only be held for a few hours but, despite their frantic efforts, were subsequently unable to ascertain his exact whereabouts for three days as the MNS initially denied that he was then in their custody.(24) On 28 November a lawyer engaged by the family managed to determine that he was in fact in the investigation prison of the MNS, but was refused permission to see his client when he arrived at the prison with the necessary documentation later that day.
The lawyer was first permitted to see Rasim Agayev and advise him of his rights only on the fourth day after his detention. Serious in itself, this denial of prompt access to a defence lawyer is also of concern because at that time the charge of treason carried a potential death sentence. It is also alleged that Rasim Agayev initially confessed to the meetings in Moscow only after officials had threatened to prosecute his daughter for possession of substances suspected to be drugs and allegedly found in her coat during a search of the Agayevs' apartment after his detention. It is said that immediately after Rasim Agayev had confessed, he was told that the substances found were not in fact narcotics. His family also report that they were allowed to visit him for the first time only on 25 January 1997, two months after he was first detained, and that while in pre-trial detention Rasim Agayev was denied receipt of some medicines he had been prescribed for the treatment of kidney stones.
The trial of Rasim Agayev and 19 other people began on 21 January 1998, heard by the Supreme Court of Azerbaijan. Rasim Agayev pleaded not guilty on all counts of the indictment against him.(25) He also retracted his initial statement and all evidence given in the period between 25 November and 5 December, on the grounds that it had been given under duress - he mentioned the threat to prosecute his daughter for possession of drugs, and also testified that for two nights before confessing he had heard a woman in the next cell crying: ''Father, help me!''.
On 1 June 1998 Rasim Agayev was sentenced to four years' imprisonment, a sentence that reportedly could not be appealed as the trial was heard by the Supreme Court as court of first instance. He was released early just over a year later, following a pardon issued by Azerbaijani President Heidar Aliyev on 10 July 1999.
As this and other cases given below illustrate, there have been frequent reports of defence lawyers being denied prompt access to their clients in criminal cases, even though such access is guaranteed under Azerbaijani law. Until recently, however, those detained under the code dealing with administrative violations had no right to access to a defence lawyer in detention. The administrative violations code is used in, for example, cases involving minor public order offences. Officials such as police officers have the power to detain individuals believed to have violated the code: the suspects are then brought to a court where a single judge can impose a sanction of up to 15 days' ''administrative detention''.
On 13 July 1999 the Azerbaijani Constitutional Court ruled that the constitutional right to receive qualified legal aid from the moment of detention should be applied to those held under the administrative violations code, as well as to those held in connection with offences under the criminal code.(26) However, since the court's judgment there has been at least one report that a man held under the administrative violations code was denied access to a defence lawyer, and that he was beaten while held in detention.
It is reported that on 9 August 1999 Ibrahim Ikrameddin oglu Yuzbeyov, a Jehovah's Witness from the village of Alekseyevka, was summoned to the regional police administration in Khachmas to discuss a complaint regarding his proselytizing.(27) Four police officers then accompanied him to his home, and in violation of the law they are said to have conducted a search without a warrant and without the presence of witnesses. They are also said to have drawn up the record of the search, during which books, videotapes and audiotapes were confiscated, in a separate location after the items had been removed.
Following the search Ibrahim Yuzbeyov was returned to the regional police administration and detained in a cell there. He was not given access to a defence lawyer, and the following day was sentenced to 15 days' administrative detention by Khachmas district court for petty hooliganism. Ibrahim Yuzbeyov had previously refused to sign a statement relating to this charge at the police administration, claiming that he had not engaged in hooliganism and was instead being prosecuted for his actions as a Jehovah's Witness.
Ibrahim Yuzbeyov was taken to a preliminary detention cell (known as KPZ from its acronym in Russian(28)) at the police administration to serve his term. While there he alleges that he was subjected to verbal abuse; that several police officers beat him around the face and head, trying to force him to renounce his religion; and that he received food only once a day. Ibrahim Yuzbeyov reports that on one occasion his father had not been allowed to hand over a food parcel he had brought as police officers falsely told him his son had refused to accept food from home. Instead his father gave money to the head of the KPZ to buy food for Ibrahim Yuzbeyov, although this was not done and neither was the money returned.
Ibrahim Yuzbeyov was released at the end of his term on 25 August 1999. The confiscated items were not returned to him and neither, he alleges, was his watch. This had been removed from him before his detention in the KPZ, but could not be found by the police when he was released. Ibrahim Yuzbeyov further alleges that after his release he was summoned to the regional head of the Ministry of National Security in Khachmas, who warned that he would be forcibly expelled from Azerbaijan within three days if he did not renounce his faith.(29)