Prohibition on detainee for telephone conversations with the attorney

Analysis

Mahammad Kekalov, a political prisoner sentenced to 7 years and 6 months in prison in relation to the “Abzas Media” case, is being prevented from contacting his lawyer by phone. According to information by his family, when Kekalov tried to call his lawyer from the Umbaki Penitentiary Complex, the facility's employees took the phone from his hand and forcibly put it back in place, mentioning that the call would only be possible with the permission of the head of the facility.

“Tribunat” investigated the legality of intervening telephone conversations between a detainee and his lawyer, and the feasiblity of interference to the call with the consent of the head of a penitentiary institution.

The incident involving M. Kekalov occurred on August 12 of this year. Then, he was considered as a detainee. Accordingly, the analysis is conducted in accordance with the relevant status.

The Constitution, the Law “On Ensuring the Rights and Freedoms of Persons in Places of Detention”, and the Internal Disciplinary Rules of Pre-trial Detention Centers recognize the right of detainees to use telephone conversations. Detainees have the right to talk on the telephone twice a week for up to 15 minutes. According to the Law and the Rules, telephone conversations of detainees may be restricted for a certain period of time. The grounds for this are as follows:

• to prevent planned crimes;
• to ensure criminal prosecution and the safety of individuals;
• ensure the regime in places of detention.

In the first two cases, a reasoned decision is required from the body conducting the criminal proceedings, and in the last case, from the administration of the pre-trial detention center.

However, the grounds for restriction referred to relate to telephone conversations with the detainee’s close relatives or other persons with whom he has a legitimate interest in maintaining contact. Domestic legislation excludes restrictions on telephone conversations with the detainee’s lawyer (counsel), and in such cases the grounds in question cannot apply to such communication.

The vitality of communication between detainees and their lawyers is reflected in international penitentiary recommendations.

According to Article 24 of the European Prison Rules, Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons. Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact. In accordance with the Commentary to the Rules, restrictions on prisoners’ contact with the outside world should be regulated and applied with particular care. It is considered good policy for domestic legislation to maintain a certain number of communication opportunities even during periods of restrictions.

In accordance with 15th Principle of Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment communication of the detained or imprisoned person with the outside world, and in particular his family or counsel, shall not be denied for more than a matter of days. 18th Principle suggests that the right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order.

The Law of Azerbaijan “On Attorneys and Advocacy” and the above-mentioned international documents recognize confidentiality as one of the important principles of advocacy and define the protection of lawyer-client privilege as a guarantee of activity. Both domestic legislation and international recommendations condition the violation of attorney privilege and confidentiality on the prevention of a serious crime and a serious violation of the penitentiary regime. Interference in telephone conversations of lawyers of detainee and making telephone conversations conditional on the permission of an institution official leads to a violation not only of the requirements of the above-mentioned Law and Rules, but also of confidentiality – lawyer-client privilege.

As a rule, a detainee’s communications with the outside world are protected by Article 8 of the European Convention on Human Rights (Khoroshenko v. Russia, §106). In this regard, communication with a lawyer must be given special attention, given that he has the status of a defender of the rights and interests of the detainee. In Petrov v. Bulgaria, the Court found that the monitoring of the communications of detainees, regardless of their identity, was a violation of Article 8 (§44).

Restrictions on telephone conversations between Mahammad Kekalov and his lawyer are not provided for by domestic legislation. Article 19.8 of the Law “On Ensuring the Rights and Freedoms of Persons in Places of Detention” and paragraph 13.3 of the Internal Disciplinary Rules of Pre-trial Detention Centers exclude this kind of intervention.

Per these documents, the possibility of a detainee having telephone conversations with a lawyer cannot be agreed upon with the head of the penitentiary facility. The regulations state that telephone conversations of detainees are conducted only under the supervision of the staff of the pre-trial detention center.

Since interference with Mahammad Kekalov's telephone conversations with his lawyer is not provided for by law, there is no need to examine whether the interference with his right to this was necessary in a democratic society and whether it pursued any legitimate aim.

In Lebois v. Bulgaria, the Court found that restrictions on telephone calls that in breach of this test violated Article 8 of the ECHR.

M. Kekalov may appeal to a higher official and the court against the illegal restriction of his constitutional rights.

“Tribunat” concludes that the unjustified restriction on telephone conversations with the lawyer of detainees in the case of M. Kekalov is a violation of his right to respect for private and family life as established by the Constitution, domestic and international penitentiary regulations and the ECHR. In addition to being a violation of the imperative provision of domestic penitentiary legislation, such a restriction also encroaches on the principles of lawyer-client privilege and confidentiality.