Council of Europe’s old pandemic: ‘endemic’ ill-treatment and torture in custody in Azerbaijan
By Ramute Remezaite, EHRAC Legal Consultant and Ulkar Aliyeva, former EHRAC Oak Fellow. This blog is re-published here with the kind permission of the European Implementation Network (EIN).
As the safety of detainees and prisoners is among the growing concerns amidst the Covid-19 pandemic and as the world watches the growing resistance to police brutality in the United States, in Azerbaijan one should also be concerned about another pandemic: ill-treatment and torture in police stations, detention facilities and prisons that has long existed.
It is nearly two decades since Azerbaijan joined the ‘European family’ in 2001, yet ill-treatment and torture of detainees and prisoners in Azerbaijan remain endemic. In 2018, Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), the CoE guardian institution against ill-treatment and torture in Europe, for the first time in over a decade of monitoring the situation in the country, was given permission by the Government of Azerbaijan, for the first time since its membership, to publish its seven visit reports. Covering the period of 2004-2017, the reports conclude: “torture and other forms of physical ill-treatment by the police, other law enforcement agencies and the army, corruption in the whole law enforcement system and impunity remain systemic, widespread and endemic” (2017 report, para 27).
The CPT found that ‘punches, kicks and blows struck with truncheons, electroshocks, falaka, burning cigarettes, threats with family members and sexual violence’ are commonly used to obtain confessions from detainees (2017 report, para 20) and that forensic examinations of torture traces by doctors are mostly superficial and perceived primarily as a means to protect police officers (2017 report, para 37). Safeguards against ill-treatment such as access to a lawyer or a doctor, remain ‘largely a dead letter and are mostly inoperative in practice’ (2017 report, para 31). The CPT concluded that the prevailing impunity and the failure to effectively investigate and prosecute law enforcement agents renders ‘the situation in the country exceptional in the entire Council of Europe’ (2017 report, para 28).
The issue of ill-treatment and torture in Azerbaijan has been and continues to be extensively addressed by the CoE’s European Court of Human Rights (ECtHR). In 2007 the ECtHR first found Azerbaijan in violation of its obligation to protect and respect the right to be free from torture and other kinds of ill-treatment in respect of a case from 2003. It established that traces of falaka on the feet of the applicant, political opposition member, in the detention facility amounted to torture and that it had the purposive nature to obtain admissions of guilt by the applicant. The authorities interrogated only police officers as witnesses, following which no criminal proceedings were initiated to investigate such serious allegations and bring those responsible to justice, as a result the torture remains unpunished 17 years later.
Since then, the ECtHR established violations of prohibition of ill-treatment and torture under Article 3 of the European Convention on Human Rights in over more than 20 cases against Azerbaijan concerning excessive use of force by the police, lack of effective investigation into ill-treatment imputable to law enforcement officers and the absence of an effective domestic remedy to challenge it.
In one of its latest judgments finding that two young Azerbaijani activists Giyas Ibrahimov and Bayram Mammadov, both members of the N!DA Youth movement, were ill-treated into confessing to the crime of drug possession, the ECtHR relied, among other evidence, on the CPT reports referring to the systemic problem of ineffectiveness of official investigations into allegations of ill-treatment. For more than 10 years these cases have been (and remain) pending implementation by the Azerbaijani authorities before the CoE Committee of Ministers (CM) as the supervisory body: no adequate remedies have been offered to the victims of severe ill-treament and torture to date.
According to the CM’s HUDOC EXEC database, only once in all these years, has the Government of Azerbaijan submitted an action plan on the implementation of these cases, in March 2018, 11 years after the first judgment. The plan makes no reference to remedies to individual applicants, such as effective investigation of their allegations, as a fundamental requirement both under international and Azerbaijani law, or any constructive steps to address the systemic structural nature of the problem in the law enforcement system. In its plan, the Government reported on the adoption of two executive orders aimed to ‘strengthen control of detention conditions’ and ‘to secure the rights of those arrested and detained’ to prevent ill-treatment and torture, failing to indicate how this translates into effective change in practice.
The March 2018 action plan was submitted just a few months after more than 80 members of the LGBT+ community were subjected to coordinated, violent police raids and arrests in September 2017, with many of them reporting being subjected to psychological, physical and sexual violence explicitly related to their sexual orientation. Transgender women detainees complained of having their heads shaved as a commonly used technique to intimidate and punish them. None of the allegations of police violence have been effectively investigated to date, with cases currently pending examination before the ECtHR. In July 2018, dozens of protesters in Ganja city reported being brutally mistreated and tortured in detention, and forced to sign incriminatory statements on the basis of which they were convicted for crimes they claimed they did not commit, in retaliation for the murder of two police officers by a lone attacker at the scene of the demonstration.
A year later, in July 2019, Minister of Internal Affairs Vilayət Eyvazov assured the CoE Commissioner for Human Rights Dunja Mijatović, during her first visit to Azerbaijan, that no cases of ill-treatment and torture by law enforcement agents had been established in the country in recent years. Similarly, the authorities in Baku disagreed with the CPT findings published in 2018 that ill-treatment and torture is ‘widespread and systematic’ among law enforcement agencies in Azerbaijan and that the penitentiary services ‘try to solve problems’ when they occur. Back in 2013, commenting on the pressure from international organisations to condemn the unlawful actions of police officers, including in relation to violently dispersed peaceful protests, President Ilham Aliyev announced that ‘not a single police officer will be punished.’
While the authorities dismiss the CPT findings, human rights groups, lawyers and independent media continue reporting on cases of detainees being severely mistreated, with many of them being subjected to brutal physical and psychological violence with the aim of obtaining confessions for crimes they did not commit, or to punish them for their activism, protest against the authorities or for belonging to marginalised or otherwise unpopular groups, such as LGBT+ or religious communities critical of the authorities. Most of these cases entail the purposive element required for torture, to punish, intimidate or extract confessions or other information from the victims, who are often from the regime’s ‘unfavoured groups’. In 2016, the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has clarified that a discriminatory motive is sufficient for the intent element in torture, including on grounds of sexual orientation. With no independent domestic human rights groups having access to detention facilities and prisons to monitor the situation in custody, lawyers whose clients report being ill-treated, as the only ‘whistle-blowers’, are punished for conveying such information by having their licences suspended, being disbarred or subjected to defamation charges (see, for example, here, here and here).
What response from the Council of Europe and European states?
As the publicised CPT reports shed more light on the systemic and widespread nature of the issue of ill-treatment and torture in custody in Azerbaijan, and serve as a credible authoritative first hand source of information on the issue, it naturally begs the question as to what the follow up to these revelations should be. Can the Council of Europe and its member states tolerate a member state with a record of more than sixteen years of practices of ‘endemic’ ill-treatment and impunity, with no clear signs of progress or willingness to change the situation, and what should be their response? Below, we set out some reasons as to why the CoE as the leading Europe’s human rights institution, and individual European states should enhance their efforts in addressing this issue with Azerbaijan.
Firstly, as far as the European Convention on Human Rights is concerned, such deep-rooted deficiencies of the domestic law enforcement system do not only raise the questions of Azerbaijan’s failure in adhering to its obligation to comply with above-listed ECtHR judgments; this issue concerns a pattern of years of egregious violations of one of the most fundamental and absolute values that Europe stands for: the non-derogable prohibition of torture. The Convention system was created to ensure that no one in its jurisdiction is ill-treated or tortured, yet this is a long-term ‘widespread and endemic’ problem with no accountability of those responsible in Azerbaijan, a member state of the CoE.
Secondly, as the authorities demonstrate, with no sign of genuine political willingness to address this problem, requiring substantial structural and attitudinal reforms, CoE bodies should enhance their efforts to ensure that this issue is on their agenda on a regular continuing basis and raised with the Azerbaijani authorities at every occasion until it is adequately addressed. For example, in its public statement marking its 30th anniversary in 2019, the CPT takes stock of its existing challenges, amongst which it lists prison overcrowding, immigration detention, involuntary treatment of psychiatric patients or the detention of juveniles. While these are all very concerning issues in a number of European countries, this list should also include the long-standing problem of ill-treatment and torture in custody in a number of its member states, including Azerbaijan. In its 2019 annual report, the CPT congratulates Azerbaijan for agreeing to publicise the CPT reports, however, makes no mention of the egregious findings in its reports. It would have been timely to do so as Azerbaijan’s leadership has yet to live up to the CPT’s hope expressed in its 2018 annual report that the publication of the seven visit reports would mark the authorities’ ‘resolve to address effectively the serious problems’, starting with a ‘public, firm and unequivocal statement of “zero tolerance” towards torture and other forms of ill-treatment of persons deprived of their liberty in Azerbaijan.’ The continuing practice indicates the opposite.
Under its mandate of supervision of implementation of ECtHR judgments, the CM should uplift the review process of implementation of more than 20 judgments, addressed above, through its existing procedures, with the aim to enhance communication with the Azerbaijani authorities on these matters. As experience shows, Baku’s engagement is attuned to such enhancement: it was only after the CM’s decision in 2017 calling for an update on the respective cases that the Government provided its action plan in March 2018, eleven years after the first judgment on this issue. It is time these cases are adequately and routinely scrutinised, particularly following the revelations in the publicised CPT reports, until adequate progress is reported – or otherwise the issue of failure to implement ECtHR judgments is raised. We have already seen some positive developments in the cases of Azerbaijani human rights defenders and other critical voices criminally prosecuted for ‘ulterior purposes’ where the consistent engagement of the CM and other CoE bodies on ECtHR judgments in these cases bore results.
Thirdly and lastly, the various CoE bodies dealing with the issue of ill-treatment and torture in custody and the prevailing impunity in Azerbaijan, should increase their coordination and cooperation on these issues to amplify their efforts. For example, the CM should include the CPT reports and its findings as new relevant information in reviewing the implementation of ECtHR judgments and call upon the Government to account for its actions to address those findings as part of the implementation process. Similar initiatives of other CoE bodies such as the Parliamentary Assembly or the Office of the Commissioner for Human Rights would be welcome too – and we have seen such enhanced cooperation with regard to a number of human rights defenders, activists and other Government critics following their detention as part of civil society crackdown in 2014 (see here, here and here). Individual European states who stand for absolute prohibition of ill-treatment and torture should use their seats and votes to ensure that these cases are prioritised and to signal that torture is not tolerated in Europe.