Detention of prisoners within a penitentiary in disrepair is a violation of Article 3 of the Convention

Analysis

Reports state that, theologist Taleh Bagirzadeh, who was sentenced to 20 years in prison by the Baku Grave Crimes Court on January 25, 2017, is placed in a punishment cell (kartz) in prison No. 12, where he is currently being detained.

On June 1, the roof of prison No. 12 collapsed, resulting in the death of one of the inmates on June 2 due to his injuries.

Even though some prisoners were transferred following the incident, Taleh Bagirzadeh and several other prisoners continued to be held in poor conditions. According to Bagirzadeh, the administration indicated that he could only leave the institution by being transferred to a strictly closed regime. In protest, he was sentenced to 3 days of “solitary confinement” on June 19 and 5 days on June 22 for being absent at the morning and evening count of inmates.

According to T. Baghirzadeh, despite his protests to the administration, he was clearly told that
“either you go to a strict regime and/or completely closed prison, or you choose to die here. There is no other alternative”.

“Tribunat” investigated the legality of the detention of theologist Taleh Bagirzadeh within prison No. 12 in disrepair, his transfer to a punishment cell, and the threat of transfer to a institution with a strict regime.

In accordance with the Code of Execution of Sentences (“CES”), the administration of a penitentiary institution enjoys the authority to take disciplinary measures against male inmates violating the rules of execution of sentences, including transferring them to a punishment cell for up to 15 days (Articles 107.1, 107.1.3, 111). The period of detention in a punishment cell cannot exceed 60 days in a calendar year (Article 110.6).

According to the Commentary on CES, since the internal rules of penitentiaries cover all areas of life of inmates, the selection of disciplinary measures against prisoners can occur for their violation of established rules both in everyday life and in production. The application of punitive measures can be based both on a specific violation of the law and on an assessment of the prisoner's whole behavior.

The European Prison Rules, which reflects recommendations on penitentiary policies, put forward that disciplinary measures may be used as a last resort (56.1) and that only conduct that is likely to endanger order, safety or security may be defined as a disciplinary offence (57.1).

It should be noted that, according to Articles 10.2. and 10.2.1 of CES, the convicted must serve his sentence in conditions that ensure respect for the human dignity. By conditions that respect the human dignity, the Commentary implies conditions that provide adequate living, necessary material and household conditions in accordance with sanitary and hygienic rules, and where other necessary requirements are met.

The Internal Disciplinary Rules of Penitentiary Institutions state that only prisoners who are on lying regime due to illness, those resting after work, and those working in jobs that cannot be stopped or left at work are exempt from inspection.

Bagirzadeh's failure to appear for the inmate count was a protest against his detention in the prison No. 12 with poor conditions, that is, against not serving his sentence in conditions that ensure respect for human dignity and against the threat of being transferred to a strict regime institution, and did not create grounds for using disciplinary measures as a last resort.

The Constitution of the Republic of Azerbaijan (Article 46) and the European Convention on Human Rights (Article 3) prohibit inhuman, degrading treatment and torture.

The Guide on Article 3 of the European Convention on Human Rights indicates that inhumane treatment by law enforcement officers against a person deprived of his liberty are considered a violation of Article 3 of the Convention.

In accordance with case law, ill-treatment must reach a minimum threshold of severity to fall within the scope of Article 3. The assessment of this threshold is relative and depends on all the characteristics of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age or state of health of the victim.

The ECtHR, in Kudla v. Poland put forward that the state must ensure that a person is detained in conditions that respect human dignity and that the prisoner's health and well-being are properly protected (§94).

Simultaneously, in Kalashnikov v. Russia the Court held that the conditions which endangered the health and well-being of the applicant during his detention constituted a breach of Article 3 (§102).

According to European Prison Rules, accommodation for inmates must respect human dignity and meet hygiene and health requirements (§18.1). Lack of resources cannot justify human rights violations (§4).

Via Articles 70.4 and 70.4.1 of CES, convicts may be transferred from a detention center to a prison of a different regime by court decision if they intentionally violate the rules for the execution of sentences.

Taleh Bagirzadeh mentions that the request to be transferred to a more severe regime prison is due to the state of emergency in the previous institution. Transferring a prisoner to a more severe regime prison without a court decision and in cases where the prisoner has not violated the rules for the execution of sentences in a biased manner is illegal.

“Tribunat” concludes that, the detention of Taleh Bagirzadeh and other prisoners within prison No. 12 in a state of disrepair is a violation of Article 3 of the Convention. The request to transfer the theologist to a more severe regime prison without justification and without a court decision for violating the rules of execution of sentences does not coincide with the norms established by the Code of Execution of Sentences. Even though it was stated that Bagirzadeh was placed in a punishment cell due to a disciplinary violation, the punishment imposed on him due to his protest was inadequate, the fact that his act was of a protest nature was not taken into account, and it is not in accordance with the recommendations of the European Prison Rules, which were also mentioned in the preparation of the Internal Disciplinary Rules of Penitentiary Institutions.

P.S. Taleh Bagirzadeh's detention regime has now been tightened and he has been transferred to the Umbaki penitentiary complex.