Marriage ban for detained female journalist

Analysis

Journalist Aytac Tapdig, who was arrested in relation to the “Meydan TV” case and is held in the Baku Investigative Detention Center, is complaining about the problems by the investigative body - the Baku City Main Police Department. According to the journalist, despite the appropriate application, the investigation is preventing her from getting married. Aytac Tapdig states that despite writing an application in January of this year and while the investigation initially giving its consent, her request was later verbally declined.

“Tribunat” has analyzed the legality of this refusal.

Article 33 of the Constitution of Azerbaijan recognizes the right to marry for every individual. The main requirements for marriage are the legally established marriageable age and the principle of voluntariness. Article 15 of the Law “On Ensuring the Rights and Freedoms of Persons Detained in Places of Detention” and Articles 8.1.26 and 29.1 of the “Internal Disciplinary Rules of Investigative Detention Facilities” include the right of detainees to marry, as well as to participate in other family related legal relations. Although the non-binding European Prison Rules, which were used during the preparation of the Rules, are directly referenced in the text, do not provide specific recommendations on marriage, they highlight several important principles for the present case. The privacy and choices of each detainee must be respected, their contacts with the outside world must not be arbitrarily cut off, and the relevant authorities must not impose unreasonable restrictions on the exercise of rights.

Accordingly, neither the Law nor the Regulations provide for restrictions for persons of marriageable age and wish to marry on a voluntary basis.

In accordance with the sectoral legislation regulating the marriage, the Family Code, individuals wishing to enter into marriage should submit a written application to the body carrying out state registration of civil status acts. In addition to submitting the application, individuals must undergo a medical examination covering several venereal diseases. The marriage is concluded with the participation of individuals following a month after submission.

Another issue for discussion is the legality of the investigator's verbal refusal to the journalist. Neither the aforementioned Law nor the Criminal Procedure Code stipulates the obligation of the accused who wishes to enter into marriage to inform the investigator about this. On the contrary, such applications should be considered by the administration of the pre-trial detention center where the accused is held.

Moreover, according to Article 120 of the Criminal Procedure Code, the body conducting the criminal proceedings must provide an opportunity for each person participating in the criminal proceedings to exercise the rights.

Consequently, the body conducting the criminal proceedings and its representative are not only authorized to intervene in this matter, but are also obliged to enable the exercise of the rights of the detained, including the right to marry.

This situation is an erroneous trend in investigative practice - the informal consent of the investigative body to exercise any right of the accused during pre-trial proceedings. Considering that the accused is detained in a penitentiary institution in isolation from society, such an illegal practice makes the exercise of his/her rights dependent on the will of the body conducting the criminal proceedings.

Hence, the legality of the verbal refusal of a member of the criminal body investigating the “Meydan TV” case of the Baku City Main Police Department to marry with Aytaj Tapdig can be challenged through judicial review pursuant to Articles 91 and 449 of the Criminal Procedure Code. Conferring to the cited norms, the accused has the right to appeal to the court against the investigator’s procedural actions (including inaction) and decisions.

Aytaj Tapdig’s case raises issues related to the rights protected by Articles 8 and 12 of the European Convention on Human Rights.

“Tribunat” will focus on Article 12.

Under Article 12 of the Convention, men and women of appropriate age have the right to marry and to found a family, in accordance with the domestic law of each country. According to the case-law of the European Court of Human Rights, although the Government has a wide discretion over the right to marry, any restrictions imposed by domestic law must pursue a legitimate aim and be reasonable (O'donoghue and Others v. the Unıted Kingdom, § 84).

Taking into account that the right to marry is not flatteringly covered by the Convention, the Court has expressed its position on the issue of marriage of detainees in several cases. Restrictions on the right to liberty in places of detention should not constitute an obstacle to the exercise of the right to marry (Hamer v. the United Kingdom, Commission decision). Despite the fact that Article 12 leaves the question of marriage of detainees within the discretion of the competent authorities, the Article does not require governments to adopt specific legislation or regulations concerning the marriage of detainees (Frasik v. Poland, § 99). Arbitrary objection to the marriage of a detainee constitutes a significant obstruction to the enjoyment of his/her rights, thereby violating the applicant’s rights protected by Article 12 (Jaremowicz v. Poland, § 54).

This is not the first time that problems have been created with the right to marry in a penitentiary for politically motivated detainees. Even though problems were created with the marriage of Seymur Hazi, a member of the Presidium of the Azerbaijan Popular Front Party and journalist of the "Azadlıq" newspaper, who was arrested in 2016 on charges of hooliganism, and social and political activist Nigar Yagublu, later the issue became public and these artificial obstacles were removed and they were able to marry.

"Tribunat" concludes that the restrictions imposed by the investigative body on the right to marry of journalist Aytaj Tapdıg violates her rights protected by the Constitution of Azerbaijan and the European Convention. There is no legal basis in the domestic legislation for the body conducting the criminal proceedings to obstruct the marriage of a detainee, and the established erroneous practice of making the exercise of the rights of arrested persons dependent on the consent of the investigative body creates problems for the effectiveness of these rights.