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The Committee
against Torture, established under Article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 25 November 2005,
Having concluded its consideration of complaint No. 247/2004, submitted to
the Committee against Torture by Mr. A. A., under article 22 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment,
Having taken into account all information made available to it by the
complainant, his counsel and the State party,
Adopts the following decision under article 22 of the Convention.
1.1 The complainant is Mr. A. A., [FN(**)] an Azeri national sentenced to
death on 24 August 1994 by the Supreme Court of Azerbaijan. On 10 February
1998, all death sentences handed down in Azerbaijan, including the
complainant's, were commuted to life imprisonment, following the abolition
of the death penalty by Parliament. The complainant claims to be a victim of
violation by Azerbaijan of his rights under articles 1, 2, 12 and 13, of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
(the Convention). He is represented by counsel.
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[FN**] Initials changed at request of the complainant.
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1.2 Azerbaijan became a State party to the Convention on 16 August 1996
(date of accession), and made the declaration under article 22 on 4 February
2002.
The Facts as Submitted
2.1 The complainant was a police inspector. On 24 August 1994, he was found
guilty of murder, illegal storage of and port of fire arms, voluntary
destruction of public property, murder with aggravating circumstances, and
attempted murder. He was sentenced to death by the Supreme Court of
Azerbaijan, allegedly without having been given the right to appeal against
this judgment. The complainant claims that his trial did not meet the
requirements of due process and was tainted by the authorities' desire to
avenge the murder of a policeman. He also explains that two of the three
individuals composing the court (so called "people's assessors") had refused
to countersign his death sentence.
2.2 After his conviction, the complainant was placed on death row in
Baylovskaya prison (Baku), where, he allegedly shared a 6 square meters cell
with "5-6" other prisoners also under sentence of death. The cell was
equipped with only one bunk bed for all of them, and the prisoners had to
sleep in turns. The window of the cell was obstructed by metal plates and no
light could penetrate; there was only a dim lamp in the cell, which was
constantly lit.
2.3 According to the complainant, on 1 October 1994, a group of prisoners
escaped from Baylovskaya prison. [FN1] The same day, the prosecutor in
charge of prisons allegedly informed the prison authorities that they were
allowed to beat (to death) all prisoners "under his responsibility". After
this, conditions of detention worsened. No recreation walks were authorized
between 1994 and 1998. From 1994 to 1996, prisoners were obliged to take
showers directly in the cells, while no bathroom existed; a collective
bathroom was set up only in the summer of 1996; showers were then allowed at
20-30 days intervals, for 10-15 minutes per cell. The complainant states
that more than 70 prisoners under sentences of death passed away while he
was on death row from 1994 to 1998, due to the worsening conditions of
detention.
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[FN1] Throughout the text, the complainant refers to the events of October
1994 as to "escape" and "attempt to escape", without differentiation. It
transpires however, that 10 prisoners had escaped.
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2.4 The complainant explains that despite the fact that prison regulations
allowed him to receive the visit of his family every month, as well as to
receive a 5 kg parcel, in reality, and especially after the escaping of
prisoners in October 1994, visits and parcels were "irregular".
2.5 According to the complainant, during the morning calls, all prisoners
had to leave their cells, and to stand in front of the door leading to the
fire squad basement. In addition, during his detention on death row, the
execution chambers were cleaned on 7-8 occasions; every time thereafter, the
administration threatened that a series of executions was expected.
2.6 The complainant claims that although the law stipulated that former
policemen had to be held separately, he was held together with ordinary
criminals. There was allegedly an attempt to kill him while he slept, and he
was severely beaten by his cell mates twice.
2.7 The complainant explains that after the "escape" in 1994, and until
March 1995, no medical doctor visited the death section. Ill prisoners
allegedly were held together with other prisoners, surgery was made in
inadequate conditions and several prisoners died because of bad medical
care.
2.8 It is further stated that immediately after the 1994 "escape", no food
or water was supplied to the prisoners; when the supply was restored,
rations were reduced by half. Temperatures at night were below 16 Celsius,
but no covers were distributed to the prisoner between October 1994 and
January 1995; covers were allowed only after an intervention by the
International Committee of the Red Cross.
2.9 The complainant gives details on the allegedly bad treatment in
1994-1996: during the morning calls, prisoners were moved out of their
cells, one by one, and were beaten (with wooden sticks, police batons, and
electric cables, inter alia), up to the point when they fell to the ground
loosing conscience. Accordingly, some 45 prisoners lost their lives in such
circumstances.
2.10 In May 1996, the prison administration discovered hidden documents in
the complainant's cell, in which he recorded the acts of the prison
authorities against him, and also listed persons who had died on death row
as a consequence of ill-treatment and torture. He was severely beaten; his
pens and paper were confiscated. In September 1996, a governmental
delegation inspected the prison. Even though only few prisoners filed minor
complaints, since they were afraid of retaliation, all those under sentence
of death were severely beaten after the inspectors' departure.
2.11 In October 1996, head of the prison guards allegedly beat all
prisoners, thus "celebrating" the second anniversary of the 1994 escape. The
complainant was allegedly beaten for an hour and a half.
2.12 In the autumn of 1996, a prisoner who had been released allegedly met
with the complainant's mother and explained to her the conditions in which
her son was detained. The mother filed a complaint with the prison
authorities. After this, the complainant was beaten, threatened with death,
and forced to sign a disclaimer.
2.13 In early 1997, another list of deceased prisoners was discovered in the
complainant's cell; he was beaten again and was confined, together with his
cell-mates, to 3 days of isolation.
2.14 After the commutation of his death sentence in 1998, the complainant
was allegedly held "in isolation" for another 6 months and was unable to
meet with his family during this period.
2.15 The complainant alleges that because of the above-mentioned reasons, he
was unable to, and was indeed prevented from, exhausting all available
domestic remedies:
- Since 1997, his counsel has published a series of articles in different
newspapers, in relation to the complainant's situation and the situation of
other death row prisoners, using information provided by the complainant.
However, no inquiry followed, nor was any prosecution instituted.
- In October and December 2002, several prisoners serving life sentences in
Gobustan prison, including the complainant, filed complaints in the Gardaksy
district court and in the Court of Appeal, denouncing the deplorable
conditions of detention and the ill-treatment they had been subjected to.
However, the tribunals referred to examine these complaints on the ground
that the claimants' signatures had not been certified by the prison
authorities. Many prisoners, such as the complainant himself, never received
a reply from the courts.
- It is stated that the Ombudsman visited the prison on several occasions,
but in spite of the complainant's request, he was unable to meet with her.
2.16 The complainant alleges that he believes that, in the light of the
facts outlined above, any further communication with the judiciary
authorities of Azerbaijan would be futile and would subject him to
supplementary pressure and intimidation, or even his physical disappearance
as an important witness.
2.17 According to the complainant, he had not been hospitalized during his
detention. He was examined on 15 November 2003 by a Medical Commission. On 7
January 2004, he received the results and the diagnosis of the Medical
Commission: "situational neurosis, elements character psychopathia". The
complainant claims that on 8 January 2004, when he examined his medical
record sheet, he discovered that it had been changed with new type of
medical form, and that the information from his previous medical records had
not been recorded. Thus, according to him, no record was kept of his
illnesses in 1994-2002 (hemorrhoids, rheumatism, neurosis, "attacks", and a
cerebral attack in 1999). [FN2] The complainant alleges that his record card
was substituted to prevent any possibility for him to seek compensation for
the diseases suffered.
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[FN2] According to the complainant, the medical card of his cellmate, G.,
who had suffered form different diseases, including tuberculosis, was
completely blank.
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2.18 The complainant applied to the European Court of Human Rights
(application No. 34132/03 of 29 October 2003, declared inadmissible on 29
April 2005). However, according to him, the allegations before the European
Court relate only to the period following the allegations of the present
communication, i.e. after 10 February 1998. [FN3]
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[FN3] The European Convention for Human Rights has entered into force for
Azerbaijan on 15 April 2002.
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The Claim:
3.1 The complainant claims that the conditions of detention, and the manner
the authorities treated him while he was on death row (1994-1998), amounted
to a violation of articles 1 (1) and 2 of the Convention.
3.2 Article 2, paragraphs 1 and 3 are also said to have been violated, as
the cells where he was held were allegedly overcrowded by a factor of 2 to 4
compared to the possible occupancy, and he � as a former policeman � was
held together with ordinary criminals.
3.3 Allegedly, in violation of article 12 of the Convention, the authorities
omitted to investigate promptly and impartially deaths of prisoners who
awaited execution, "when there were reasonable grounds" that their dead was
the consequence of the torture and cruel treatment they were subjected to by
the prison authorities.
3.4 Finally, the complainant claims a violation of article 13, because of
the State party's impossibility to secure an impartial examination of the
claims of torture and cruel treatment.
State Party's Observations on Admissibility
4.1 The State party contested the admissibility of the communication on 19
July 2004. It recalls that it recognised the Committee's competence to
examine individual complaints on 4 February 2002, and that accordingly, the
Committee is only competent to examine complaints submitted against
Azerbaijan after that date. Accordingly, the State party considers the
complainant's communication to be inadmissible.
Complainant's Comments
5.1 By letter of 6 November 2004, the complainant concedes that the events
complained of occurred before the State party's acceptance of the
Committee's competence to examine individual complaints against it.
According to him, however, the ratione temporis rule does not apply if
violations continue after the date of entry into force of the procedure for
the State party. As example, he refers to the jurisprudence of the Human
Rights Committee (case of K. and K. v. Hungary, Communication No. 520/1992,
Inadmissibility decision adopted on 7 April 1994, paragraph 6.4).
5.2 On the issue of exhaustion of domestic remedies, he reiterates that he
did not believe in the effectiveness of the procedures in the State party.
In support of this statement, he names five former death row prisoners who
were granted new trials in 2002-2004. Allegedly, all of them had complained
of torture and ill-treatment in detention, but the courts allegedly ignored
all of their claims and confirmed their life sentences. [FN4]
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[FN4] According to the complainant, only in one occasion a life sentence was
commuted to 15 years of imprisonment, due to a decriminalization of an
offence.
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5.3 According to the complainant, in 2004, one prisoner serving a life
sentence sought to obtain compensation for tuberculosis he had contracted
while he was on death row from 1996 to 1998, detained in an overcrowded cell
together with prisoners who suffered from tuberculosis. He lost his case and
his cassation appeal. [FN5]
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[FN5] It is stated however, that the Supreme Court made no decision on the
case, because the plaintiff was pardoned, released and left the country.
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Issues and Proceedings Before the Committee:
6.1 Before considering any claims contained in a complaint, the Committee
against Torture must decide whether or not it is admissible under article 22
of the Convention.
6.2 The Committee has noted, first, that the complainant's allegations (see
paragraph 3.3 above) that the State party's authorities have consistently
failed to investigate reports of deaths of prisoners on death row. It
recalls that it can only examine complaints if they are submitted by the
alleged victims, close relatives, or by a representative duly authorised to
act on the victim's behalf. In the present case, the complainant has not
presented any authorisation to act on behalf of any other alleged victim.
Accordingly, the Committee finds that this part of the communication is
inadmissible under rule 98, paragraph 2 (c), of its rules of procedure.
[FN6]
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[FN6] CAT/C/3/Rev.4
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6.3 On the remaining parts of the complainant's claims, the Committee
recalls that the State party had challenged the admissibility of the
communication on the ground that the events complained of took place before
its acceptance, on 4 February 2002, of the Committee's competence to deal
with individual communications under article 22 of the Convention. The
complainant has refuted this assertion by invoking the "continuing effect"
doctrine.
6.4 The Committee recalls that a State party's obligations under the
Convention apply from the date of its entry into force for that State party.
FN7 It considers, however, that it can examine alleged violations of the
Convention which occurred before a State party's recognition of the
Committee's competence to receive and consider individual communications
alleging violations of the Convention (i.e. before the declaration under
article 22 became effective, i.e. 4 February 2002, in the present case), if
the effects of these violations continued after the declaration under
article 22 became effective, and if the effects constitute in themselves a
violation of the Convention. A continuing violation must be interpreted as
an affirmation, after the formulation of the declaration, by act or by clear
implication, of the previous violations of the State party.
6.5 The Committee has noted that in the present case, the complainant's
allegations under articles 1, 2, and 13, of the Convention (see paragraphs
3.1, 3.2 and 3.4 above) all relate to events which occurred before the State
party's recognition of the Committee's competence to consider individual
complaints. According to the complainant, however, these alleged violations
had effects which continued after the State party's acceptance of the
Committee's competence under article 22.
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[FN7] See O.R, M.M., and M.S. v. Argentina, Communications Nos 1, 2, and
3/1988, Inadmissibility decision adopted in November 1989.
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6.6 The Committee has equally noted that the complainant filed an
application in the European Court of Human Rights, regarding events which
occurred after 10 February 1998, which, according to him, can be clearly
distinguished from the issues submitted to the Committee. This application
was declared inadmissible on 29 April 2005. The European Court held, inter
alia, that the complainant's allegations of mistreatment on death row, which
are identical to the claims in the present communication, were inadmissible.
[FN8 ]
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[FN8] The Committee has noted that the European Court, acting through a
Committee of three judges, declared the application inadmissible on two
grounds: partly on a) non-exhaustion of domestic remedies (articles 3, 8,
14, and 34, of the European Convention), and b) with regard to the
applicant's remaining complaints, on the ground that the information before
the Court does not reveal any violation of the applicant's rights and
freedoms under the Convention.
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6.7 In this context, the Committee recalls that it shall not consider any
communications from an individual under article 22, paragraph 5 (a), of the
Convention, unless it has ascertained that the same matter has not been, and
is not being, examined under another procedure of international
investigation or settlement; the Committee is satisfied that examination by
the European court of Human Rights constitutes an examination by such a
procedure.
6.8 The Committee considers that a communication has been, and is being
examined by another procedure of international investigation or settlement
if the examination by the procedure relates/related to the "same matter"
within the meaning of article 22, paragraph 5 (a), that must be understood
as relating to the same parties, the same facts, and the same substantive
rights. It observes that Application No. 34132/03 was submitted to the
European Court by the same complainant, was based on the same facts, and
related, at least in part, to the same substantive rights as those invoked
in the present communication.
6.9 Having concluded that the "same matter" has been the object of the
complainant's Application before the European Court and it was examined and
declared inadmissible, the Committee considers that the requirements of
article 22, para. 5 (a), have not been met in the present case. In the
circumstances, the Committee decides that it is not necessary to examine the
other two grounds of inadmissibility, namely on ratione temporis and non
exhaustion of domestic remedies.
7. The Committee against Torture consequently decides:
(a) That the communication is inadmissible;
(b) That the present decision shall be communicated to the State party and
to the complainant.
[Adopted in English, French, Russian and Spanish, the English text being the
original version. Subsequently to be issued also in Arabic and Chinese as
part of the Committee's annual report to the General Assembly.]
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