Additions and amendments to the appeal seized from the accused...

Analysis

 

On June 17, political prisoner and economist Fazil Gasimov addressed at the Baku Court of Appeal and stated that the amendments and additions to the appeal he was going to lodge were seized by employees of the Penitentiary Service. From the information in the media, it is infeasible to determine the nature of the amendments and additions and at what stage they were taken from Gasimov.

This is not the first case of the seizure or confiscation of personal materials of detained or arrested political prisoners. Similar situation occurred with political prisoner Ali Zeynal, one of the defendants in the case colloquially known as the “Toplum TV case.” According to Zeynal’s testimony at the trial, his notes and notes for defense attorneys of defendants brought with him were taken away.

“Tribunat” investigated the legality of such behavior of Penitentiary Service’s employees towards the accused.

Article 57 of the Constitution of the Republic of Azerbaijan recognizes the right of citizens to individually appeal to state bodies, as well as to the courts. Article 60 enshrines judicial guarantees of everyone's rights and freedoms. Article 15 of the Law “On Ensuring the Rights and Freedoms of Persons Detained in Places of Detention” establishes the right of detained or arrested persons to appeal with proposals, applications and complaints. The same right is also reflected in the Internal Disciplinary Rules of Pre-trial Detention Centers. In accordance with the Rules, such correspondence and their answers are not censored. In addition, no repercussions allowed to arrested individuals for such correspondence.

As observed, domestic legislation recognizes the right of detainee or arrested to appeal to the court.

Then are there any restrictions imposed on this right? How can the seizure of additions and amendments to the appeal from the arrested economist be regulated?

It is impossible to determine from the information disseminated in the media at what stage the documents were taken from Fazil Gasimov. It is likely that it happened either in the detention center where he was held, or when he was escorted to the court. Taking into account these assumptions, it is necessary to glance at domestic legislation to determine legality.

In accordance with the above-mentioned penitentiary legislative acts (Articles 17 of the Law, 12 of the Rules), Gasimov's additions and amendments to his appeal are considered his personal correspondence. In this case, the legislation provides for three cases for the application of restrictions on correspondence:

1. Preventing planned crimes; 
2. Ensuring criminal prosecution and the safety of individuals; 
3. Ensuring the safety regime in prison.

Nonetheless, both acts emphasize that these provisions apply “except for correspondence between detainee or arrested and their defense counsel or other persons providing legal assistance on legal grounds” (Article 17.3 of the Law, Articles 12.3 of the Rules). This gives grounds to assume that F. Gasimov’s additions and amendments to the appeal should also be understood as correspondence. If the additions and amendments were obtained from the economist in the pre-trial detention center where he was held, this should be done on the grounds provided by the legislation. However, the application of this restriction does not comply with the listed grounds, since the seizure of additions and amendments to the appeal from a political prisoner is irrelevant for preventing a planned crime, ensuring criminal prosecution and security, or violating the regime in the place of detention.

Another possibility of the incident is that it occurred when Gasimov was being escorted from the detention center to the court. According to paragraph 4 of the “Instructions on the Rules for Escorting Arrested Persons and Convicts”, approved by the Collegium Resolution of the Ministry of Justice, prisoners are subject to personal searches when escorted to and from penitentiary institutions. According to Article 4.20 of the Instructions, prisoners escorted to judicial bodies or penitentiary institutions are subject to a full personal search, and their belongings and food are thoroughly inspected. In particular, according to Chapter 8 of the document, the presence of prohibited items is checked by the convoy while the accused is in the courtroom. According to Article 4.28 of the Instruction, if during a personal search a penitentiary employee finds items that are prohibited from being kept, such items may be seized. If such items are found, according to Article 4.31 of the Instruction, the accused is handed over to a representative of the institution that sent him. The Internal Disciplinary Rules of Pre-trial Detention Centers provide a list of items that are prohibited from being kept. This list includes only “publications that promote war, violence, extremism, terrorism and cruelty, incite national, religious and racial hatred, as well as pornographic publications”, which may apply to correspondence. However, the list of items prohibited from being kept does not include additions and amendments to the appeal or any other legal correspondence.

Likewise, the seizure of an item from a prisoner involves procedures for the penitentiary institution. According to both the Rules and the Instructions, in case, the seizure of the item must be documented in the relevant manner. The media reports do not mention anything about the seizure of the additions and amendments to the appeal complaint from Gasimov. In general, the additions and amendments provided for the appeal complaint are not included in the list of items prohibited from being kept according to the Instructions.

The seizure of Fazil Gasimov's amendments and additions to his appeal by the Penitentiary Service staff may be considered a violation of his rights protected by the European Convention on Human Rights. Article 6 of the Convention recognizes the right of the accused to a fair trial, and Article 8 also recognizes the right to respect for the confidentiality of correspondence.

The European Court of Human Rights has a well-established case-law on the protection of the rights and interests of prisoners. The Court has recognised respect for the dignity and supremacy of human rights as fundamental principles for the treatment of detained and deprived persons, since respect for human dignity is at the heart of the Convention (Bouyid v. Belgium, §§89-90). This approach also applies to prisoners and convicted (Vinter and Others v. the United Kingdom, §113).

Resultantly, the seizure of F. Gasimov’s materials is a gross violation of his right to a fair trial. By not providing any justification for the seizure of the materials, the officials of the Penitentiary Service created an obstacle for the economist to effectively defend his rights before the court. As emphasized in the Rook v. Germany, the guarantees of a fair trial for convicted persons in criminal cases create positive obligations on state bodies to ensure the effective participation of the convicted in the judicial process (§65). However, on the contrary, in Gasimov’s case, the penitentiary institution seriously undermined the right to a fair trial protected by the Convention by confiscating the amendments and additions made by the accused to his appeal.

Another noteworthy point arises from the interpretation of the additions and amendments of the accused as legal correspondence. Such correspondence forms an integral part of the prisoner’s communication with his legal representative – the defense attorney. The Court has stressed the importance of monitoring the prisoner’s correspondence and regulating the justification of the extent of interference with it (Enea v. Italy, §143). Interference with the prisoner’s correspondence must be carried out in a manner that ensures the correct application of the law and assures both the prisoner and his legal representatives that the steps taken are not unreasonable or arbitrary (Onoufriou v. Cyprus, §113).

The seizure of Fazil Gasimov’s materials and the interference with his correspondence were not justified in any way in accordance with domestic legislation. When taking the amendments and additions to the appeal complaint from him, the Penitentiary Service officers did not take any steps to indicate the basis for the restriction on the accused’s personal correspondence. Although domestic legislation provides a framework for the application of restrictions on personal correspondence, it clearly states that this is “with the exception of correspondence between detainee or arrested persons and their defense attorney or other persons providing legal assistance on legal grounds.” Such a violation of the imperative norm of the legislation contradicts the penitentiary regulations that specify the legal conditions and guarantees of the accused and the principle of legality.

“Tribunat” concludes that, the seizure of Fazil Gasimov's amendments and additions to his appeal by the penitentiary institution's employees is a gross violation of his rights and interests protected by domestic and international legislation - the right to a fair trial and respect for his personal correspondence. Both the state body and the court ignored the prohibition on taking legal correspondence from the accused. The Penitentiary Service did not provide any legal and reasonable justification to justify such an intervention that undermined the legal position of the accused. Similarly, the court did not take any steps within its powers to investigate such a clear breach and provide a legal assessment.