Azerbaijan in breach of International Covenant on Civil and Political Rights for detention and trial conditions

01.04.2015

The Human Rights Committee determined that Azerbaijan was in breach of the International Covenant on Civil and Political Rights for detention and trial conditions of a person accused of murder.

Quliyev v. Azerbaijan (1972/2010)

Summary

In October 2014, the Human Rights Committee was asked to consider whether Azerbaijan had violated its obligations under the International Covenant on Civil and Political Rights in its treatment of a person accused of murder.

The communication was submitted by a national of Azerbaijan under the Optional Protocol to the Covenant.

Background

The author, Mr Quliyev, used to work as an operator at the Institute of Oil and Chemistry at the National Academy of Sciences of Azerbaijan. In 1989, a police investigation revealed that some of his colleagues had been part of a gang involved in violent crimes since 1979. On 5 September 1989, the gang reportedly killed the Chief Director of the Bakipive manufacturing group. The author submitted that some of the gangsters had testified under torture that he had committed the murder. He was arrested on 11 September 1989. The author was detained in isolation in a prison of the State Security Committee and at the Police Department of the Absheron district, Baku city. He confessed under severe torture, with his ribs being broken and one of his kidneys damaged. On 26 December 1989, the author attempted to commit suicide in the State Security Committee prison.

During a trial hearing, the author and his four co-defendants retracted their confessions, alleging that they had been forced to confess under torture. They demanded the investigation of their torture allegations and the examination of additional evidence, but the court refused and used teargas against them while they were detained in a cage. The judge presiding over the trial removed the five defendants from the courtroom for “violation of order” and for the next four months  both the author and his lawyers were barred from attending the court hearings.

On 12 November 1991, the author was convicted in absentia and sentenced to death by the Baku City Court. That sentence was final and could not be appealed to a higher court. The author was detained in Bayil prison on death row for six and a half years.

On 10 February 1998, the National Assembly of Azerbaijan adopted legislation amending the Criminal Code in order to abolish the death penalty. Under that law, death sentences were commuted to life imprisonment. Following the adoption of this legislation, the author’s sentence was changed to life imprisonment and he was transferred to Qobustan prison. Although the conditions of detention were better than in the previous prison, the author claimed that the regime of detention was degrading and in violation of European standards.

Until the abolition of the old criminal codes on 1 September 2000, the author had not been able to appeal the judgment of the Baku City Court. On 5 June 2005, the author lodged a cassation appeal. On 8 August 2005, the author also filed an appeal before the Qaradag District Court claiming that the imposition of life imprisonment instead of the death sentence contradicted article 11 of the Universal Declaration of Human Rights, article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and provisions of the domestic Codes of Criminal Procedure.

On 20 September 2005, the Supreme Court rejected his cassation appeal and confirmed the 12 November 1991 verdict.

On 24 October 2005, the Plenum of the Supreme Court reviewed the 20 September 2005 decision and confirmed the 1991 verdict, replacing the death penalty with life imprisonment. The author was not present during those proceedings and his lawyer was only allowed to participate in the 20 September 2005 hearing before the Supreme Court.

On the same date, the Qaradag District Court reviewed the author’s appeal, comparing the penalties provided for under the 1960 Code and the 2000 Code. The Court reduced the penalties for some of the crimes, since under the new Code they were punishable with shorter prison terms. The Qaradag District Court imposed the life imprisonment sentence on the author for some of the charges, subsuming in that sentence the shorter prison sentences for the rest of the charges.

On 31 October 2005, the author filed an appeal with the Appeals Court requesting it to quash the decision of the Qaradag District Court, and to impose the maximum penalty of 15 years’ imprisonment. On 9 December 2005, the appeal was rejected, following a hearing at which neither the author nor his lawyer were present. The decision was not delivered to the author until 19 January 2006, 40 days after its adoption, while the statutory deadline for its appeal was 30 days. On 30 January 2006, the author filed a cassation appeal and filed a motion for the statutory deadline to be restored. On 28 March 2006, the Supreme Court rejected the appeal, ruling that the missed statutory deadline could not be restored.

On 17 January 2006, the author attempted to reopen the case based on newly established circumstances. On 3 March 2006, the Supreme Court’s President rejected the application. In June 2007, the author attempted to lodge another appeal based on newly discovered circumstances. That appeal was rejected by the Supreme Court by a letter of 16 July 2007. On 10 August 2007, the author filed another appeal with the Plenum of the Supreme Court that was rejected on 6 September 2007.

After all domestic remedies had been exhausted, the author submitted a complaint to the European Court of Human Rights. On 28 November 2008, a committee of three judges rejected the complaint as inadmissible on the basis of articles 34 and 35 of the Convention without elaborating its decision further.

On 24 June 2010, the author filed this communication with the Committee under the Optional Protocol to the Covenant. The author claimed that he was the victim of violations by Azerbaijan of his rights to: (i) freedom from cruel and inhuman treatment, (ii) respect for the inherent dignity of the human person while in detention, (iii) treatment in custody aimed at reformation and social rehabilitation, (iv) a fair trial, (v) to defend himself in person, (vi) review of his sentence by a higher court, (vii) compensation for miscarriages of justice, and (ix) the benefit of a lighter penalty if such a penalty is imposed by law subsequent to the commission of an offence (under articles 7, 10(1 and 3), 14(1, 3, 5 and 6) and 15(1) of the Covenant respectively).

The Committee’s decision

Regarding the admissibility of the author’s claims, the Committee found that it lacked temporal jurisdiction over the author’s claims under article 14 concerning the investigation and trial that took place in 1989 and 1991 respectively and concerning the conditions in the Bayil prison (which the author left in 2001), as these events pre‑dated the entry into force of the Optional Protocol for Azerbaijan in 2002. The Committee also noted the author’s claims that his rights under article 14(5 and 6) of the Covenant had been violated during the proceedings before the Qaradag District Court. With regard to article 14(5), the Committee observed that the 2005 decision of the Qaradag District Court was itself an additional proceeding for review of the author’s sentence and did not result in the type of judgment that article 14(5) requires to be subject to appeal. With regard to article 14(6), the Committee observed that the author’s conviction had not been reversed nor had he been pardoned. The Committee therefore found that the author had failed to substantiate the above claims for the purposes of admissibility, and declared them inadmissible under article 2 of the Optional Protocol. The Committee found, however, that the author had sufficiently substantiated his other claims under articles 7, 10 (1 and 3), 14 (1) and 15 and declared them admissible.

On the merits, the Committee noted that the Azerbaijan had confirmed most of the author’s allegations regarding the conditions in which he had been serving his life imprisonment sentence. The Committee concluded that the author’s conditions of detention violated his right to be treated with humanity and with respect for the inherent dignity of the human person, and were therefore contrary to article 10(1).

The Committee noted the author’s uncontested claim that, after his cassation appeal was rejected by the Supreme Court, the Plenum of the Supreme Court reviewed that decision without notifying the author or his counsel. The Committee recalled that under the principle of equality of arms the same procedural rights must be afforded to both parties, unless distinctions are based on law and can be justified on objective and reasonable grounds not entailing actual disadvantage or other unfairness to the defendant. In the absence of any explanation by Azerbaijan for the unequal access of the prosecution and the defence to the hearing, the Committee concluded that Azerbaijan had infringed the principle of equality of arms, in violation of the author’s rights under article 14(1) of the Covenant.

The Committee noted the author’s claim that the commutation of his death sentence into life imprisonment for a crime committed at a time when life imprisonment was not provided by law violated article 15(1) of the Covenant. According to article 15(1), if provision is made by law for the imposition of the lighter penalty subsequent to the commission of the offence, the offender should benefit from the lighter penalty. In the present case, the Committee noted that the penalty of life imprisonment established by the legislation passed on 10 February 1998 superseded the death penalty, a penalty which is more severe than life imprisonment. In such circumstances, the Committee could not conclude that the Azerbaijan, by substituting life imprisonment for capital punishment, had violated the author’s rights under article 15(1) of the Covenant.

In the light of the above, the Committee concluded that Azerbaijan had violated the author’s rights under articles 10(1) and 14(1) of the Covenant. Having found a violation of article 10(1), the Committee did not find it necessary to examine the author’s claims arising under articles 7 or 10(3).

In accordance with article 2(3)(a) of the Covenant, the Committee observed that Azerbaijan was under an obligation to provide the author with an effective remedy, including adequate compensation. The Committee found that Azerbaijan was also under an obligation to prevent similar violations in the future.

Azerbaijan must now submit its written response within six months of the Committee’s decision, including information on the action taken in the light of the Committee’s recommendations, and ensure that the Committee’s decision is published widely.

 

Sam Hunter Jones is an international lawyer, based in London.