The aggravating illness of the imprisoned human rights defender and failure to transfer him to a public hospital

Analysis

Anar Mammadli, the chairman of the Election Monitoring and Democracy Studies Center, a human rights defender who has been in prison since April of last year, has not been provided with a quality medical examination for 17 months.

Mammadli suffers from osteoarthritis of the knee joint - gonarthrosis, and the disease is currently aggravated. His parents report that he has difficulty walking, and there is swelling and redness in the knee area.

Per doctors' recommendations, such patients should be monitored regularly and undergo MRI, X-ray, and laboratory tests.

The requests made by the human rights defender's attorneys for a comprehensive examination at a public hospital were rejected.

“Tribunat” investigated the legality of depriving the arrested of a quality examination and refusal of transfer to a public hospital.

The Law “On Ensuring the Rights and Freedoms of Persons in Places of Detention” states that detainees should not be subjected to inhuman or degrading treatment and should be provided with medical and sanitary services (Articles 15.1, 15.1.4, 15.1.7).

In the case of detainee’s illness, his/her medical examination must be carried out immediately by medical personnel (Article 22.5). In addition, the detainee may, at his/her own request or that of his/her defense counsel, be examined by specialists from other medical institutions selected by the decision of the body conducting the criminal proceedings (Article 22.6).

According to the Rules on “Provision of Medical Assistance to Arrested or Detainee, as well as Their Detention in Medical Institutions”, the results of this examination are recorded and presented to the arrested or, if requested, to his or her counsel (§2.5). Additionally, in cases where the arrested’s chronic illness is aggravated or when he or she is ill, inpatient treatment is carried out in appropriate medical institutions based on the opinion of a medical worker (§3.4).

In accordance with the paragraph 7.4 of the Rules, if the treatment of the arrested is not feasible, upon the request of the arrested or his/her defense counsel, treatment and preventive measures shall be carried out at the person's own expense in another medical institution of his/her choice. Upon the improvement of the condition, he/she shall be transferred back to the relevant medical institution or place of detention.

According to the European Prison Rules, the penitentiary institution shall protect the health of all prisoners under its control (§39). Prisoners shall be provided with all necessary medical, surgical and psychiatric services and sick prisoners who require specialised treatment that cannot be provided in prison shall be transferred to medical institutions or public hospitals (§§40.5 and 46.1).

The Constitution of the Republic of Azerbaijan (Article 46) and the European Convention on Human Rights (Article 3) state that no one should be subjected to inhuman treatment.

European Court of Human Rights’ (ECHR) case-law stipulates that the State must ensure that a detained person is held in conditions compatible with respect for human dignity, including the provision of necessary medical care. He must not be subjected to any distress or suffering exceeding the level of suffering and distress resulting from the form and manner of the measure chosen for him (Kudła v. Poland, §94).

Anar Mammadli's suffering due to his illness causes concern that goes beyond the level of suffering and distress arising from the inevitable consequences of detention.

The ECtHR also holds that it is a violation of Article 3 of the Convention if a prisoner is in clear need of permanent specialized medical care, but such care is not provided at all or is provided in a very limited manner (Paladi v. Moldova, §68).

In Kondrulin v. Russia, the Court also stated that the failure to provide the prisoner with comprehensive and adequate medical care had subjected him to prolonged physical and psychological suffering and constituted a violation of human dignity (§61).

In Yunusova and Yunusov v. Azerbaijan, the ECtHR also considered the fact that both individuals did not receive adequate medical treatment for their illnesses during their detention to be subject to moral and physical suffering degrading human dignity and recognized a violation of Article 3 of the Convention (§150).

In Eldar Hasanov v. Azerbaijan, the Court found that the failure to provide the former Prosecutor General and Ambassador Eldar Hasanov with adequate medical care constituted degrading treatment and a violation of Article 3 (§107). Even though Hasanov had requested to be examined by doctors of his own choice at his own expense, the prosecution delayed responding to his request for six weeks and then refused (§103).

The Guide on Article 3 of ECHR indicates that the fact that a detainee is examined by a doctor and prescribed a particular form of treatment does not automatically mean that medical care is adequate. The authorities should provide the detainee with ample treatment, rather than merely symptomatically addressing his or her health problem. Nevertheless, it does not imply that all sick prisoners should be treated outside their place of detention.

Upon the inadmissibility of providing treatment in the place of detention, it must be possible to transfer the detained person to a hospital or a specialised unit (Rooman v. Belgium, §148).

“Tribunat” concludes that the failure to provide Anar Mammadli with an adequate examination constitutes his being subjected to inhuman or degrading treatment and is a violation of Article 3 of the European Convention on Human Rights.