The problem concerning a detainee’s meeting with their dog

Analysis

The editor-in-chief of Meydan TV, political prisoner Aynur Elgunesh (Gambarova) complains about not being allowed to meet her dog Max in the Baku Pre-Trial Detention Center (BPDC) where she is being detained. In an open letter to the head of the Penitentiary Service of the Ministry of Justice, Mirsaleh Seyidov she wrote that “There is no provision in the legislation that prohibits me from meeting Max. It is desirable for us to meet from the point of view of privacy and animal rights. However, you do not allow us to meet without providing any reason. Yet, this meeting is not dangerous from a personal or social point of view, and does not cause any concern. Via this ban, you are causing me moral suffering and psychological trauma,” the journalist states in her letter.

Hence, how is the right of a person in prison to communicate with a pet that he or she owns and lives with in freedom regulated? If not, can this be considered as an obstacle to the exercise of the right?

“Tribunat” investigated the topic around this and other questions.

Domestic law stipulates that a detainee can only meet with a human being

Aynur Elgunesh is currently held in the status of an accused. The journalist's legal status is regulated by the Code of Criminal Procedure (CCP), the Law “On Ensuring the Rights and Freedoms of Persons Detained in Places of Detention” and the Internal Disciplinary Rules of Pre-Trial Detention Centers.

The Code (Article 161.1.5), the Law (Articles 12.1.12, 15.2.1, 19.6 and 33.1.6) and the Rules (Articles 8.1.24., 18) provide for the right of detainee to meet with close relatives or other persons whose contact is of legitimate interest, in addition to their defense counsel and legal representative.

All three documents refer only to humans as “close relatives” and “other persons of legitimate interest.” The CCP includes close relatives as grandparents, parents, adoptive parents, natural and half-brothers and sisters, spouses, children, adopted children, and grandchildren. Though it is not clear who exactly is meant by “other persons of legitimate interest,” it embraces humans. Incidentally, interests are legally protected if they do not contradict the Constitution and legislation, the interests of the state and society, justice, fairness, and other general principles of law, and do not violate the rights, freedoms, and legally protected interests of other individuals.

Thus, Azerbaijani legislation refers to the notions of “person” and “other persons” comprising human beings. Accordingly, domestic legislation does not regulate the contact in the detention center between an arrested and a pet that he or she owns and lives with.

Presumption of consent

On the other hand, the Constitution stipulates that everyone can perform actions that are not prohibited by law (Article 71, Clause IX). This principle, “presumption of consent” implies that any action or activity that is not expressly prohibited is permitted.

In this regard, the fact that the Code, Law and Rules do not provide for the meeting of an arrested person with a pet that he owns and lives with in freedom cannot be interpreted as lack of permission of A. Elgunesh to meet Max under any circumstances. “Meydan TV” employees can claim and challenge to realize this right within the framework of the principle of “everything not prohibited by law is permitted”.

Open source data indicates that Elgunesh's pet dog belongs to the Maltese terrier breed. This breed of dog is considered to be intelligent and social animals and is known for its effectiveness in human therapy.

Article 1 of the European Convention for the Protection of Pet Animals, to which Azerbaijan is a Party, puts forward that a pet means an animal kept by a person, especially in the home, for personal enjoyment and companionship.

In her letter, the journalist emphasized that Max weighs 1.8 kg, has a veterinary certificate and passport, is regularly vaccinated, and has undergone medical procedures. It is implied that Max's keeping complies with the Rules for Keeping Dogs, Cats, and Other Pets in Residential Areas of the Republic of Azerbaijan, approved by the Resolution of  Cabinet of Ministers No. 38 dated March 9, 2011.

The fact that the dog's breed, size, and compliance with veterinary and sanitary regulations exclude any danger to the journalist or other individuals (penitentiary employees, detainees) during meeting with A. Elgunesh in the detention center, and that it will not pose a threat to the sanitary and hygienic conditions of the BPDC.

Conversely, a veterinarian's opinion may be useful for the appointment.

Countries that allow prisoners’ meeting with their pets

The place of animals in the legislation of a number of countries is ambiguous. Although pets are not considered family members, the fact that their owners see them as members of their own family not only influences social behavior but also leads to legislative amendments in certain fields.

The legislation of some States, including those of the European Union, already recognizes animals as “sentient beings.” “Animal sentience” is the ability of animals to have subjective experiences, thoughts, feelings, and individual qualities. Scientific research irrefutably proves that animals can experience a range of emotions, both positive and negative.

Animal rights activists advocate for animals to be granted “legal personhood” or “animal personhood.” Granting animals legal personhood would imply that they enjoy the same rights as humans.

There are also countries that recognize the role of animals in the family during divorce cases. For instance, in 2021, Spanish legislation was amended to require the Civil Code to take into account the interests of animals, along with human interests, in cases of separation and divorce.

Additionally, in a number of countries, there are special programs that support the psychological well-being and rehabilitation of prisoners through communication with animals.

Some prisons in the UK allow prisoners’ meeting with their pets. It is believed that interaction with pets can provide emotional support, reduce stress, help prisoners become responsible and disciplined, and improve their mental health. The same practice exists in the US, Japan, Germany, and Switzerland.

The context of Article 8 and the positive obligation of the State stemming from this article

The failure to respond to Aynur Elgunesh's appeals to the Head of the Penitentiary Service prevents from having a desired meeting with her pet. This raises an issue under Article 8 of the European Convention on Human Rights, over which Azerbaijan is subject to jurisdiction.

The case law of the European Court has emphasised that, although the detention of a person entails the deprivation of right to liberty, this should not prejudice the enjoyment of other fundamental rights and freedoms, including the right to respect for family life. In this case, the restrictions imposed on other rights and freedoms must be justified (Kungurov v. Russia, Application no. 70468/17, §16).

In Khoroshenko v. Russia (Application no. 41418/04), it was noted that the rehabilitation and reintegration of prisoners has become a mandatory factor for member states when creating their own penal systems (§121).

It is true that in X. v. Iceland, the Court refused to examine under Article 8 the fact that the applicant was not allowed to keep a dog in Reykjavik, where he lived, and reasoned that “the Commission cannot accept that the protection afforded by Article 8 of the Convention extends to the entire relationship of an individual with his immediate circle, since, despite the individual’s desire to keep such relationships in the private sphere, they do not fall within the scope of human relations. It is clear that the dog has had a close relationship with man since ancient times. However, ... this element alone is not sufficient to place the keeping of a dog within the private sphere of its owner. It may also be noted that the keeping of dogs necessarily involves a certain interference with the lives of other people and even with public life. It follows that Article 8 of the Convention cannot be interpreted in such a way as to guarantee everyone the right to keep a dog” (decision of 18 May 1976).

Nonetheless, since the current situation is not about keeping a dog, but about the owner's right to meet her dog while in detention, it is not feasible to present this case as an example.

Bearing in mind that Article 8 is constantly evolving, dynamic, and one of the most welcome to change, as well as the failure of the state to fulfill its positive obligations against the backdrop of Aynur Elgunesh's legitimate expectations from the Penitentiary Service, “Tribunat” believes that the refusal for the journalist to meet her pet should be considered a violation of the right to respect for her private life.