CASE OF RZAKHANOV v. AZERBAIJAN

FIRST SECTION

CASE OF RZAKHANOV v. AZERBAIJAN

(Application no. 4242/07)

JUDGMENT

STRASBOURG

4 July 2013

FINAL

04/10/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Rzakhanov v. Azerbaijan,

The European Court of Human Rights (Chamber), sitting as a Chamber composed of:

Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 11 June 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 4242/07) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Shakir Hajimurad oglu Rzakhanov (Şakir Hacımurad oğlu Rzaxanov, “the applicant”), on 8 January 2007.

2. The applicant was represented by Mr E. Zeynalov, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3. The applicant alleged, in particular, that his conditions of detention in Gobustan Prison were harsh. He further complained that he had been beaten and ill-treated by prison guards and that the domestic authorities had not carried out an effective investigation into his claim of ill-treatment.

4. On 26 November 2009 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the conditions of the applicant’s detention during the period after 15 April 2002, the date of the Convention’s entry into force with respect to Azerbaijan, and the alleged ill-treatment of the applicant by the prison personnel to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The applicant’s original conviction and commutation of the death penalty to life imprisonment

5. The applicant was born in 1961 in Baku, Azerbaijan, and is currently serving a life sentence in Gobustan Prison.

6. On 18 July 1997 the Baku City Court convicted the applicant of complicity in two counts of murder and complicity in arson and sentenced him to death and confiscation of property. On 19 August 1997 the Supreme Court upheld this judgment.

7. Following the conviction, the applicant was transferred to the 5th wing of Bayil Prison, designated for convicts sentenced to death. Despite the existence of the death penalty as a form of punishment under the criminal law applicable at that time, the Azerbaijani authorities had pursued a de facto policy of a moratorium on the execution of the death penalty from June 1993 until the abolition of the death penalty in 1998.

8. On 10 February 1998 Parliament passed the Law on Amendments to the Criminal Code, Code of Criminal Procedure and Correctional Labour Code of the Republic of Azerbaijan in connection with the Abolition of the Death Penalty in the Republic of Azerbaijan, which amended all the relevant domestic legal provisions, replacing the death penalty with life imprisonment. The penalties of all convicts sentenced to death, including the applicant, were to be automatically commuted to life imprisonment.

9. On 28 March 1998 the applicant was transferred to Gobustan Prison.

B. Conditions of detention in Gobustan Prison and the applicant’s placement in solitary confinement

1. The applicant’s account of the conditions

10. As from his arrival at Gobustan Prison on 28 March 1998 until his placement in solitary confinement on 14 February 2008, the applicant was held, with one other inmate, in cells measuring approximately 9-10 sq. m. During his detention, he changed cells several times and shared them with different inmates. The standard cell had two beds, a small bedside cupboard, and one small table and two chairs fixed to the cell floor. The toilet area was separated from the rest of the cell by a one-metre-high stone wall. The floor and ceiling were made of stone and concrete respectively. The temperature inside the cell was very high in summer and very low in winter. Central heating was available, but inadequate.

11. The window, which had metal bars, had no window pane in it and, in winter, was covered with a transparent polyethylene film. The air inside was stale and the cell could not be naturally ventilated. Until 2001, the inmates were not allowed to possess or use ventilators. Likewise, until 2001, the inmates were not allowed to possess a radio. Subsequently, small radios and ventilators were allowed. The food served in the prison was often of poor quality and lacked sufficient meat and vitamins, and the menu was unvaried and monotonous.

12. The inmates were allowed only fifteen to thirty minutes of outdoor exercise per day. There were no other recreational or educational activities.

13. Since 14 February 2008 he has been in solitary confinement, without any formal decision, in a former “punishment” cell measuring 7.78 sq. m. The applicant was not provided with a copy of the decision placing him in that cell.

14. Following the information request of the applicant’s mother (M.R.), by a letter of 27 February 2008 the prison governor informed her that it was impossible to send her copies of the decisions on punishment measures applied to the applicant, as these documents were confidential and could be requested by the courts or a relevant higher authority.

15. By a letter of 10 April 2008 from the prison authority, M.R. was informed that the placement of the prisoners in cells was carried out according to the Prison Internal Disciplinary Rules and that the conditions of the applicant’s cell complied with the legislation.

2. The Government’s account of the conditions

16. The applicant was detained in a cell measuring at least 8 sq. m and designated for two inmates throughout his detention in Gobustan Prison.

17. The window of the applicant’s cell can be opened from the inside. The window is large enough and does not prevent natural light and fresh air from coming in. The cell is also equipped with electric lights, a ventilator and a radio set.

18. He also has the right to watch TV for four hours a day and six hours a day at weekends and on holidays. The prison has a library that the prisoners can use. The sanitary conditions are acceptable and the food served is of good quality. The applicant has the right to one hour’s outdoor exercise a day.

19. Since 1 September 2000, the inmates are entitled, on a yearly basis, to one long (from one to three days) and three short (of up to four hours each) personal visits and four food parcels (of up to 31.5 kg each) from relatives, and six telephone calls (of up to ten minutes each). They are able to spend up to 3.3 Azerbaijani manats (AZN) per month on staple items.

20. Since 24 June 2008 the number of visits by relatives has been increased to two long and six short visits a year, the number of food parcels to eight, and the number of telephone calls to twenty-four. The monthly spending limit has been increased to AZN 25. The prisoners’ correspondence is not limited.

21. The applicant was placed alone in a cell in February 2008, because he did not get on with other prison inmates and always attracted dislike. In this regard, the Government submitted that the applicant had committed nineteen breaches of discipline between 28 March 1998 and 28 January 2010.

22. It appears from the documents submitted by the Government that the first decision to place the applicant alone in a cell was taken by the prison authorities on 25 July 2008. The duration of the solitary confinement was not specified in that decision. The applicant’s placement alone in a cell was justified as follows:

“The inmate Rzakhanov Shakir Hajimurad oglu, during the execution of his sentence, attracts dislike, intentionally breaches the internal rules of regime in the prison, tries to abscond, incites the inter-ethnic conflicts and by creating psychological tensions between the life sentenced inmates and by other means, tries to disturb the normal functioning of the establishment. He tries to join other inmates in his unlawful actions. Currently, as he is against the measures taken in the prison in order to ensure the respect of the regime, he sends to various State and non-governmental organisations defamatory information and complaints and tries to achieve his goal this way. In addition, the inmate Rzakhanov could not get on with inmates with whom he had previously shared the cell and intentionally created the situation of conflicts.”

23. The second decision in this respect was delivered on 4 August 2009 which is almost identical in its wording to the decision of 25 July 2008 and reiterates the same reasons for the applicant’s placement alone in a cell. Following the decision of 4 August 2009, the applicant’s placement alone in a cell was extended every two months by a new decision of the prison authorities.

24. In all the decisions, the justifications for the applicant’s placement alone in a cell are almost identical to those described in the decision of 25 July 2008.

25. The applicant’s placement alone in a cell ended on 16 December 2010.

3. Remedies used by the applicant

26. On 16 and 20 March 2006 the applicant sent complaints concerning the medical service, the quality of the bread and the toilet facilities to the Ministry of Justice. By a letter of 26 April 2006 the Ministry of Justice informed the applicant that the quality of the bread had been checked by the delegation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) and it met the quality requirements. The Ministry of Justice instructed the prison administration to examine the applicant’s other complaints so that the appropriate measures could be taken.

27. On an unspecified date, M.R. lodged an action with the Garadagh District Court. She complained about the general conditions of detention of her son and his placement in solitary confinement. She also complained that her son’s cell did not meet the standard requirements, as there was no sunlight in the cell and the cell’s window was very small.

28. On 31 October 2008 the Garabagh District Court dismissed the claim. After visiting the prison, the judge held that the general conditions of detention of the applicant met all the relevant requirements. He described the applicant’s cell as follows:

“The applicant’s cell is the cell no. 221 situated in the unit no. 4. The cell is on the right side of the entrance of the unit. The living space of the cell measures 2.75 x 2.90 metres. There is a window in the upper part of the cell which measures 1.50 x 0.21 metres. This window is open and the air is coming in without hindrance from it. Opposite to this window, there is also a transom measuring 0.30 x 0.40 metres at the same level over the entrance door. This transom was covered by the inmate Rzakhanov with a transparent polyethylene film. The inmate states that it was done in order to prevent the move of the air coming from the window in the cell. The floor of the cell is made of wood. The toilet, situated in the middle of the cell, is separated from the bed. The water supply is permanent in the cell. The artificial lighting system is functioning in the cell. The pipe which is a part of the common heating system of the unit passes through the cell under the window and is fixed to the wall. The inmate says that there is no problem of heating when it is cold. There is a TV set on the right side of the cell...”

29. As regards the particular complaint on the size of the window, the judge noted that despite the fact that the size of the window of the applicant’s cell did not meet the established standards, the window in question was large enough and did not prevent natural light and fresh air from coming in.

30. As to the applicant’s placement alone in a cell, the judge considered it lawful. In this connection, he noted that by a decision of 25 July 2008 the applicant was placed alone in a cell for breach of disciplinary rules. The judge further noted that the inmate with whom the applicant had been detained died in December 2006 and after his death the applicant asked the prison authorities not to be placed with another inmate for a year. A year later the applicant refused to share his cell with another inmate. Another inmate (M.D.) was later placed in the same cell as the applicant, however the applicant began to complain to the authorities, asking for a single cell. Afterwards the applicant asked to be placed in the same cell as inmate M.I., however this request was dismissed by the prison administration for security reasons.

31. On 30 March 2009 the Court of Appeal and on 27 October 2009 the Supreme Court upheld the first-instance court’s judgment of 31 October 2008.

32. On an unspecified date in 2009 the applicant lodged a new action with the Garabagh District Court, complaining about his conditions of detention.

33. On 20 November 2009 the Garabagh District Court dismissed the applicant’s claim.

34. On 19 March 2010 the Baku Court of Appeal and on 12 November 2010 the Supreme Court upheld the first-instance court’s judgment of 20 November 2009.

C. Alleged ill-treatment in prison

1. The applicant’s version of the events

35. On 11 January 2004 the applicant was taken to the office of one of the senior officers of the prison guard. He was first admonished for sending “too many complaints to the Constitutional Court”. He was then handcuffed and beaten with rubber truncheons and wooden clubs by several prison guards, including the prison governor. The beating lasted around forty minutes. He was then dragged out and placed in a punishment cell, where he was held until 14 January 2004. He received no medical aid. The applicant’s mother learned of his ill-treatment.

36. On 15 January 2004 the applicant was visited by the Ombudsman, in the presence of his lawyer, relatives and the prison governor. The applicant did not specify the purpose of the Ombudsman’s visit. According to the applicant, the Ombudsman did not take any action, despite having seen the signs of ill-treatment on his body.

37. On 17 January 2004 the applicant was visited by the delegation of the Council of Europe’s Ago Group which is a monitoring group of the Committee of Ministers of the Council of Europe working on the honouring of commitments by Azerbaijan. The applicant told them about the alleged ill-treatment. The delegation also met the applicant’s mother. The delegation informed the Deputy Minister of Justice of its concerns with the applicant’s complaints. The Deputy Minister of Justice promised to launch an investigation. However, no adequate investigation took place.

38. In July or August 2004 the applicant was taken to the Medical Facility of the Ministry of Justice for a forensic examination. However, the forensic experts attempted to hide the injuries by taking X‑rays of his uninjured leg instead of the injured leg. Therefore, he refused to undergo further examination and was taken back to the prison.

2. The Government’s version of the events

39. On 11 January 2004 prison guards found a letter in which the applicant called on other prisoners to go on hunger strike. Following this, the prison guards tried to carry out a search on the applicant who objected to this search.

40. On the same day, the prison administration decided to transfer the applicant to a punishment cell for a period of fifteen days. On 26 January 2004 the applicant was released from the punishment cell following the end of the period of fifteen days.

41. As to the meeting with the Ombudsman, on 14 February 2004 the applicant met the Ombudsman in the presence of his mother and lawyer. This meeting was filmed and the video submitted to the Court. It appears from the video that in this meeting the applicant was questioned by the Ombudsman, in the presence of his mother and lawyer, about the allegations of ill-treatment. He told the Ombudsman that he had not been subjected to torture or inhuman or degrading treatment by prison guards during his detention in Gobustan Prison.

42. The Government finally submitted that the Ago Group delegation of the Council of Europe could not meet the applicant on 17 January 2004, because this delegation visited Gobustan Prison three times, on 14 May 2002, 11 July 2003 and 4 February 2004, within the framework of its annual visit to Azerbaijan.

3. Remedies used by the applicant

43. In the summer of 2004 the applicant sent complaints to the Prosecutor General’s Office and the Ministry of Justice about his alleged ill‑treatment by the prison guards.

44. Following the applicant’s complaint to the Prosecutor General’s Office, an investigation was launched by the Garadagh District Prosecutor’s Office. On 24 November 2005 the Deputy Prosecutor of Garadagh District refused to institute criminal proceedings, finding that the applicant had not been beaten on 11 January 2004. In particular, the prosecutor noted that there was no evidence that the applicant had been ill-treated by prison guards. No appeal was lodged against this decision.

45. On 28 May 2006 M.R. lodged, on behalf of the applicant, a civil lawsuit with the Garadagh District Court, seeking compensation for the ill‑treatment to which he had been subjected by prison guards. On 9 June 2006 the Garadagh District Court refused to admit the complaint, because it did not meet the procedural requirements set out in Article 149.2.2 of the Code of Civil Procedure (“the CCP”). In particular, M.R. failed to specify the respondents and indicate their names and address. No appeal was lodged against this decision.

46. On an unspecified date M.R. lodged a new action with the Garadagh District Court, seeking compensation for the alleged ill-treatment. On 22 September 2006 the Garadagh District Court refused to admit the lawsuit because it did not comply with the formal requirements set out in Articles 149 and 150 of the CCP. The court noted that it was not possible to establish who had signed the application and that there were no documents relating to the allegations in the case file. The court also pointed out that the applicant should apply to the prosecuting authorities in respect of the alleged criminal acts of the prison guards, and a civil action should meet the procedural requirements set out in Article 149 of the CCP. No appeal was lodged against this decision.

II. RELEVANT DOMESTIC LAW

A. The Code on Execution of Punishments (“the CEP”)

47. According to Article 122 of the CEP, life sentenced inmates are entitled, on a yearly basis, to two long (from one to three days) and six short (of up to four hours each) personal visits, to eight food parcels from relatives and to spend AZN 25 monthly. They have the right to one hour outdoor exercise per day (Article 122.1.4).

48. According to Article 121 of the CEP, if necessary, inmates could be detained alone in a cell by a reasoned decision of the prison administration. The duration of this kind of detention should be specified (Article 109.3). Article 109.2 of the CEP provides that an inmate has the right to complain to the courts about a decision of the prison administration concerning disciplinary measures.

B. The Code of Criminal Procedure (“the CCrP”)

49. Chapter LII of the Code of Criminal Procedure (“the CCrP”) lays down the procedure by which parties to criminal proceedings could challenge acts or decisions of the prosecuting authorities before a court. Article 449 provides that the victim or his counsel can challenge acts or decisions of the prosecuting authorities concerning, inter alia, refusal to institute criminal proceedings or to discontinue criminal proceedings. The judge examining the lawfulness of the prosecuting authorities’ actions or decisions can quash them if he or she finds them to be unlawful (Article 451). The decision of the judge on the lawfulness of the prosecuting authorities’ actions or decisions can be disputed before an appellate court in accordance with the procedure established in Articles 452-453 of the CCrP.

C. Decree No. 16-T of 19 November 2010 of the Minister of Justice on Internal Disciplinary Rules of Prisons

50. Section 13 provides that inmates who expressly breach the rules of enforcement of a punishment can be placed in solitary confinement by a reasoned decision of the prison authority. In prison, an inmate may be placed in solitary confinement for his own safety or when it is impossible to detain him with other inmates. A decision to place an inmate in solitary confinement or to extend such a placement is announced by the signature of this decision by the inmate. The decision is reviewed every two months by the prison authority and is subject to an appeal by the inmate.

D. Decree No. 13-T of 24 March 2004 of the Minister of Justice on Internal Disciplinary Rules of Prisons, in force until 19 November 2010

51. Section 52 provides that in prison an inmate could be placed in solitary confinement at his own request or for his own safety.

III. RELEVANT INTERNATIONAL AND NATIONAL DOCUMENTS

A. Extracts from the 2nd General Report on the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment’s (“CPT”) activities covering the period from 1 January to 31 December 1991

52. The relevant part of the Report reads as follows:

“48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard (preferably it should form part of a broader programme of activities). The CPT wishes to emphasise that all prisoners without exception (including those undergoing cellular confinement as a punishment) should be offered the possibility to take outdoor exercise daily. It is also axiomatic that outdoor exercise facilities should be reasonably spacious and whenever possible offer shelter from inclement weather ...

56. The CPT pays particular attention to prisoners held, for whatever reason (for disciplinary purposes; as a result of their "dangerousness" or their "troublesome" behaviour; in the interests of a criminal investigation; at their own request), under conditions akin to solitary confinement.

The principle of proportionality requires that a balance be struck between the requirements of the case and the application of a solitary confinement-type regime, which is a step that can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment; in any event, all forms of solitary confinement should be as short as possible ...”

B. Extracts from the 21st General Report on the CPT’s activities covering the period from 1 August 2010 to 31 July 2011

53. The relevant part of the Report reads as follows:

“53. The CPT has always paid particular attention to prisoners undergoing solitary confinement, because it can have an extremely damaging effect on the mental, somatic and social health of those concerned.

This damaging effect can be immediate and increases the longer the measure lasts and the more indeterminate it is. The most significant indicator of the damage which solitary confinement can inflict is the considerably higher rate of suicide among prisoners subjected to it than that among the general prison population. Clearly, therefore, solitary confinement on its own potentially raises issues in relation to the prohibition of torture and inhuman or degrading treatment or punishment ...”

C. Extracts from Recommendation (Rec(2006)2) of the Committee of Ministers to Member States on the European Prison Rules, adopted on 11 January 2006 (“the European Prison Rules”)

54. The relevant part of the European Prison Rules reads as follows:

Special high security or safety measures

“53.1 Special high security or safety measures shall only be applied in exceptional circumstances.

53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner.

53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law.

53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time.

53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority.

53.6 Such measures shall be applied to individuals and not to groups of prisoners.

53.7 Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule 70.”

Requests and complaints

“70.1 Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority.

...

70.3 If a request is denied or a complaint is rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority.

70.4 Prisoners shall not be punished because of having made a request or lodged a complaint.

70.5 The competent authority shall take into account any written complaints from relatives of a prisoner when they have reason to believe that a prisoner’s rights have been violated ...”

D. Extracts from the report to the Azerbaijani Government on the visit to Azerbaijan carried out by the CPT from 8 to 12 December 2008

55. The CPT has carried out several visits to Azerbaijan in which it had the opportunity to examine the situation in Gobustan Prison. In particular, the main purpose of the CPT’s visit of May 2005 (ad hoc) was to examine the situation in Gobustan Prison. However, the CPT’s report on the latter visit has not been made public. The last report of the CPT concerning Azerbaijan which has been made public is about its visit in December 2008. The relevant part of the Report reads as follows:

“15. With an official capacity of 700, Gobustan Prison was holding 634 inmates at the time of the visit. Of them, 219 were life-sentenced prisoners, 60 were serving long sentences, 319 had been transferred from other establishments for regime violations and 36 had been assigned to work at the establishment. The delegation focussed its attention on the three units holding life-sentenced prisoners (Nos. 4, 5 and 6).

16. In the above-mentioned units for lifers, the delegation observed some improvements to material conditions. The cell heating had been significantly improved, running water was provided on a permanent basis in the cells, and the showers in Unit 4 had been renovated (enabling prisoners to take more frequent showers). Further, renovation work was underway in the shower facilities of Unit 6. In addition, the establishment’s kitchen had been completely refurbished and properly equipped.

That said, conditions in the most dilapidated Unit 1 remained basically unchanged. Moreover, the prison still did not supply inmates with an adequate range of personal hygiene products (only soap and washing powder were provided on a regular basis) and there was no laundry, prisoners thus being obliged to wash their clothes and bed linen themselves or rely on their families.

17. In June 2008, a number of amendments had been made to the Code of Enforcement of Punishments (CEP), inter alia, lifting the restriction that no more than two life-sentenced prisoners be accommodated together in a cell. The delegation observed that some cells were accommodating three inmates. In general, the legal requirement of 4 m2 of living space per prisoner was observed in all the cells visited (e.g. one prisoner in cells measuring 7 to 8 m2; two prisoners in cells measuring 9 to 10 m2; three prisoners in cells measuring some 17 m2). However, as stressed by the CPT in previous visit reports, given that prisoners were locked up in their cells for 23 hours a day, living space was far from generous.

18. As regards food, many inmates stated that the quality had recently improved. Nevertheless, a number of complaints were heard that the food served was monotonous, especially for those who had no means to buy additional foodstuffs, and that no fruit was provided.

19. As already indicated (see paragraph 9), the construction of a new high-security prison for 1,500 persons was underway. The delegation was informed that Gobustan Prison would be closed down once the new prison entered into service. The CPT would like receive a timetable for the construction/commissioning of the new prison and information on its layout plan.

In the meantime, the CPT recommends that measures be taken at Gobustan Prison to ensure that:

- prisoners are systematically provided with a range of personal hygiene items (including toothpaste, toothbrush, toilet paper, etc.) in adequate quantities;

- the variety of the food provided to prisoners is improved...

21. Turning to activities, the above-mentioned amendments to the CEP had granted life-sentenced prisoners access to television. The delegation observed that all cells in the lifers’ units were equipped with a TV provided by the administration. Both prisoners and staff affirmed that the possibility to watch television had led to a considerable decrease in tension in the establishment.

It should be noted, however, that many prisoners complained that they were allowed to watch television for only four hours a day. In response to the delegation’s comments, the Azerbaijani authorities indicated in their letter of 4 March 2009 that it had been decided “to prolong the time for watching TV by inmates”. The CPT would like to receive information on the precise hours during which life-sentenced prisoners are able to watch television.

22. Despite the above-mentioned improvement, life-sentenced prisoners continued to spend 23 hours a day locked up in their cells, without being offered any form of organised activity. Such a state of affairs is totally unacceptable and constitutes a failure to implement long-standing CPT recommendations. The CPT calls upon the Azerbaijani authorities to take steps without further delay to devise and implement a comprehensive regime of out-of-cell activities for life-sentenced prisoners at Gobustan Prison.

In this context, the Committee must stress once again that it can see no justification for keeping life-sentenced prisoners apart from other prisoners. Reference has been made in this regard to the Council of Europe’s Committee of Ministers’ Recommendation (2003) 23, on the “management by prison administrations of life sentence and other long-term prisoners” of 9 October 2003. The CPT calls upon the Azerbaijani authorities to take due account of the principles contained in Recommendation (2003) 23 when devising their policy on the treatment of life-sentenced prisoners...

54. The CPT has serious misgivings about the practice observed at Gobustan Prison of holding prisoners in solitary confinement for prolonged periods of time. Reference should be made to the case of a life-sentenced prisoner who had been held in solitary confinement since February 2008. From the information gathered, it transpired that solitary confinement had been imposed by the prison director due to the inmate’s “disruptive behaviour” (i.e. inciting other prisoners to disobedience). The prison director had invoked Section 121.1 of the CES which provides that inmates may, if necessary, be kept in single cells on the basis of a reasoned decision of the prison director. The decision had been made for an unspecified period and was not subject to periodic review. Further, the prisoner concerned claimed that he had not been given a copy of the director’s decision and that it was only in June 2008 that his solitary confinement had been officially acknowledged, after he had lodged a complaint with the court.

The application of a solitary confinement-type regime is a step that can have very harmful consequences for the person concerned and can, in certain circumstances, lead to inhuman and degrading treatment. The CPT is of the view that the imposition of such a regime should be based on an individual risk assessment of the prisoner concerned, applied for as short a time as possible, and reviewed at regular intervals. The Committee recommends that the Azerbaijani authorities take steps to ensure that:

- a prisoner who is placed in solitary confinement by the prison management is informed in writing of the reasons for that measure (it being understood that the reasons given could exclude information which security requirements reasonably justify withholding from the prisoner);

- a prisoner in respect of whom such a measure is envisaged is given an opportunity to express his views on the matter;

- the placement of a prisoner in solitary confinement is for as short a period as possible and is reviewed at least every three months with a view to re-integrating the prisoner into mainstream prison population...”

E. Extracts from the Response of the Azerbaijani Government to the report of the CPT on its visit to Azerbaijan from 8 to 12 December 2008

56. The relevant part of the Response reads as follows:

“Regarding paragraphs 16, 18 and 19

With regard to renovation work, it has to be noted that as stated in the Report the conditions have been substantially improved as a result of refurbishment in several parts of the prison and these works continue. Currently, the repair works are undertaken in 1, 2, 3 regime parts of the prison for changing the water and sewerage systems.

Regarding the hygienic matters, it is noted that every regime part was provided by a washing machine. At the same time, it was decided to establish a centralized laundry. A stationary washing machine is planned to be installed in the 3rd semester of 2009. After this, the prisoners will not have to wash themselves their own clothes and linens.

According to Annex 24 of Decision No. 154 of the Cabinet of Ministers of the Republic of Azerbaijan dated 25 September 2001, prisoners are provided with hygienic means, that is, laundry soap (250 gr. per month), bath soap (100 gr. per month), detergent (150 gr. per month), tooth brush (one per year) and toothpaste (one per three months). Prisoners are regularly supplied with these hygienic means. All the prisoners were provided with new toothpastes and toothbrushes in the end of 2008 and in July of 2009. At the same time, amendment proposals to the relevant decision of the Cabinet of Ministers regarding more frequent provision of prisoners with toilet papers and women prisoners with hygienic pads and also toothpastes and toothbrushes have been developed and submitted for adoption.

As regards food, it has to be noted that according to the nutrition norms approved by Decision 154 of the Cabinet of Ministers of the Republic of Azerbaijan on 25 September 2001, accused persons, convicts and also life-sentenced prisoners are provided with hot meals three times a day. Daily volume of the meal norm is 3,000 calories. According to the norms set out for the period of 2008 and first six months of 2009, the Department of Logistics of the Penitentiary Service has provided to the prison as well as to other penitentiary establishments various sorts of cereals, meat, fish and other necessary nutrition products. Also, amendment proposals to the Decision of the Cabinet of Ministers on food supply of elderly and life-sentenced prisoners with fruits and dry fruits have been prepared and submitted for adoption. Besides, it has to be taken into account that prisoners have the right to receive parcels, packages and banderols, and spend their own money.

According to the Presidential Order of 11 June 2006 concerning the relocation of the Gobustan prison, 15-hectare plot of land was allocated for the construction of a new establishment in Umbaki settlement. The construction started in July 2007. It is planned that this new premises will be able to hold 1,500 prisoners on average. It is envisaged to construct one-storey 22 regime corps. Each regime corp will have cells for up to 2, 4 and more prisoners. Open walking rooms in front of each cell, where the inmates could walk freely during a day, with sanitary utilities, shower and table are under development. The space of no less than 4 m2 was allocated for each convict in prison. In two parts of the prison, the construction of necessary separate infrastructures, as well as the cells that would make it possible to engage in social labour and other activities and to receive education, is envisaged. At present, the construction of the establishment continues. Subject to full allocation of financial resources for this construction, the prison is expected to start functioning in 2011.

Regarding paragraph 17

In compliance with internationally accepted minimal standards, this norm constitutes 4 m2 for each prisoner in a multi-personal cell and 6 m2 in a single cell. These minimal standards were based on the broad analysis of the time the prisoners really spend in their cells.

In accordance with Article 91.2 of the Code of Execution of Sentences of the Republic of Azerbaijan, the norm of living space for each prisoner at penitentiary establishments, reformatory establishments and prisons cannot be less than 4 m2, and in medical establishments cannot be less than 5 m2. In the aftermath of the amendments made to the Code of Execution of Sentences on June 24, 2008, restriction that existed in the legislation concerning the detention of more than two life-sentenced prisoners was lifted as indicated in the CPT Report. As a result of the application of this provision in practice, the delegation noticed the detention of three sentenced persons in the cells and observed that the legal requirements of living space rules had been met.

It should be taken into account that this situation is driven by the current structure and condition of the prison, as well as the particularities of the prison contingent. As soon as a newly constructed prison becomes operational, positive changes will be brought to the detention conditions of prisoners including their living spaces...

Regarding paragraph 21

Relevant conditions were created for the prisoners detained at penitentiary establishments and prisons to watch TV programs every day in a centralized manner according to the amendments made to paragraph 243 of the Internal Disciplinary Rules of Penitentiary establishments concerning the amendments made to the Code of Execution of Sentences by Law of 24 June 2008. The time to watch TV programs for prisoners is determined not more than 4 hours in working days and 6 hours in day-off and holidays as a daily rule subject to compulsory implementation. If necessary, this term may be extended one more hour by the administration. It should be noted that the prisoners are allowed to freely watch TV programs of the channels they want. At present, the prisoners watch TV programs in prison from 1800 to 2200. In accordance with the daily rule, during a day until 1800, the prisoners are taken out for a walk, given possibility to take a shower, to pass medical treatment and to see administration. During this time measures are also carried out to ensure security, to search prohibited items, etc. In the future, when a new establishment is in operation, the extension of TV watching time for inmates may be reviewed again because their walking and taking a shower will be directly provided through the cells which will not require additional time.

Regarding paragraph 22

As mentioned above, the “State Program on development of justice in Azerbaijan in 2009-2013” approved by the President of the Republic of Azerbaijan on February 6, 2009 provides for the restoration of the existing production spheres and the creation of new production spheres at penitentiary establishments in order to involve the prisoners in socially useful labour.

In accordance with the current legislation, the life-sentenced prisoners are entitled to engage in socially useful labour under prison conditions. In order to secure a job to prisoners, including life-sentenced inmates, the establishment of production departments and workshops is envisaged. At the same time, in order to efficiently organize their free time, it is planned to construct in the prison a playing field and a gym.

Detention of life-sentenced prisoners in isolation from the rest of prisoners is determined by Article 56 of the Criminal Code and Article 72 of the Code of Execution of Sentences of the Republic of Azerbaijan. Such approach is based on the gravity of crimes committed by those prisoners and on the high level of danger ...

Regarding paragraph 54

Currently, according to relevant decisions made by the head of institution, six prisoners are held in single cells for different reasons. According to Article 121.1 of the Code of Execution of Sentences, prisoners may be transferred to single cells by a decision of the head of institution with due consideration to their personality, psychological state and relations with other prisoners. This is not considered to be a disciplinary measure against the prisoner. According to article 109 of the Code, prisoner is given the chance to explain his or her own actions in written or oral form and prisoners have a right to appeal against that decision to the court or the Ministry of Justice.

According to the existing legislation when prisoners purposefully breach the rules of execution of punishment, they can be subject to a disciplinary measure of being held under strict conditions from two to six months. Considering the recommendations of CPT, based on the Order of the Head of the Penitentiary Service dated 18 July 2009 the head of the prison was instructed to review the decisions on detaining in solitary confinement at least once in two months...”

F. Extracts from the Report of the Ombudsman of the Republic of Azerbaijan on the annual activity (2011) of the National Preventive Mechanism against Torture

57. A National Preventive Mechanism (NPM) for the prevention of torture and other cruel, inhuman or degrading treatment or punishment was instituted by a presidential order of 28 December 2010. The NPM is presided by the Ombudsman of the Republic of Azerbaijan which publishes an annual report on the activity of the NPM. The relevant part of the annual report of the Ombudsman of the Republic of Azerbaijan on the activity of NPM against torture (2011) concerning the conditions of detention in Gobustan Prison reads as follows:

“The conditions in the cells.

The cells intended for the inmates sentenced to life imprisonment consist of one room. In these cells one, two or four persons are held. A sanitary facility and water tap are inside the cells and curtained with a separator. The windows of the cells are partially in line with the standards, floors are made of stone. Because of the lack of place in the Prison, the cells previously used as punishment cells, the conditions of which were improved, are now used as usual cells. The cells have two layered beds. The inmates can access TV for four hours a day and radio all day long. They are entitled to one hour (sick inmates up to three hours) outdoor exercise a day. Each building has four outdoor exercise facilities and one bathroom. The inmates are entitled to use the bathroom once a week. In the bathroom there is one shower. However, efforts are made to improve inmates’ access to bathroom facilities ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION AS REGARDS THE APPLICANT’S CONDITIONS OF DETENTION IN GOBUSTAN PRISON DURING THE PERIOD AFTER 15 APRIL 2002

58. The applicant complained that his conditions of detention had been harsh in Gobustan Prison and had amounted to a breach of Article 3 of the Convention. Article 3 provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

59. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

60. The Government submitted that the applicant’s conditions of detention in Gobustan Prison met the standards established by the CPT and that the applicant’s allegations were unsubstantiated. The Government also submitted that the applicant’s placement alone in a cell was due to his attitude to the prison authorities, as he had expressly breached the disciplinary rules and could not get on with other inmates.

61. The applicant disagreed with the Government’s submissions and reiterated his complaints. He complained, in particular, about the general conditions of his detention, the size of his cell and its ventilation, the size of the cell’s windows, the duration of outdoor exercise periods, and the quality of food. The applicant further submitted that his placement in solitary confinement had been unlawful and unjustified.

2. The Court’s assessment

62. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).

63. According to the Court’s case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of such a purpose cannot conclusively rule out a finding of a violation of this provision (see Peers v. Greece, no. 28524/95, §§ 67-68 and 74, ECHR 2001‑III, and Rohde v. Denmark, no. 69332/01, § 90, 21 July 2005). When assessing conditions of detention, one must consider their cumulative effects as well as the applicant’s specific allegations (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II).

64. The Court further notes that removal from association with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or degrading punishment (see Messina v. Italy (dec.), no. 25498/94, ECHR 1999-V) and solitary confinement is not in itself in breach of Article 3 (see Rohde, cited above, § 93). In assessing whether such a measure may fall within the ambit of Article 3 in a given case, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned (see Lorsé and Others v. the Netherlands, no. 52750/99, § 63, 4 February 2003). On the other hand, complete sensory isolation, coupled with total social isolation, can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason (see Ramirez Sanchez v. France [GC], no. 59450/00, § 120, ECHR 2006‑IX).

65. In the present case, the applicant complained before the domestic courts and the Court, about the general conditions of his detention in Gobustan Prison and his placement alone in a cell.

66. The Court observes at the outset that the applicant himself did not deny that he had been detained in a cell measuring at least 8 sq. m. throughout his detention and that Gobustan Prison was not overcrowded. The Court considers that this accommodation standard appears acceptable.

67. As regards the other conditions in the cell, the Court notes that such factors as access to natural light or air, adequacy of heating arrangements, compliance with basic sanitary requirements, the opportunity to use the toilet in private, the state of ventilation and the availability of recreation and other outdoor exercise in prison are relevant to the assessment of whether the acceptable threshold of suffering or degradation has been exceeded (see, for example, Vlasov v. Russia, no. 78146/01, § 84, 12 June 2008; Babushkin v. Russia, no. 67253/01, § 44, 18 October 2007; Peers, cited above, §§ 70‑72; and Skachkov v. Russia, no. 25432/05, § 54, 7 October 2010).

68. In the present case, the toilet is separated from the rest of the cell and there is no problem of privacy in using the toilet facilities. The cell may be lit by two electric lamps. There is a ventilator and a radio set in the cell. The applicant has the right to watch TV for four hours a day, and six hours a day at weekends and on holidays. He also has access to the prison library.

69. However, the Court observes that the duration of outdoor exercise of the applicant is limited to one hour a day and he is confined to his cell for the rest of the time. In this connection, the Court reiterates that of the elements relevant for the assessment of the conditions of detention, special attention must be paid to the availability and duration of outdoor exercise and the conditions in which prisoners may take it. The Court has frequently observed that a short duration of outdoor exercise limited to one hour a day was a factor that further exacerbated the situation of the applicant, who was confined to his cell for the rest of the time without any kind of freedom of movement (see Babar Ahmad and Others v. the United Kingdom, nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, § 213, 10 April 2012, and Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 88, 27 January 2011).

70. Moreover, the Court does not lose sight of the fact that the applicant is a life sentenced inmate who has been subjected to this regime since his arrival at Gobustan Prison. In this connection, the Court considers that two long and six short visits of his family per year or occasional meetings that the applicant had with his lawyer outside the cell cannot significantly alter his confinement to the cell during twenty-three hours per day (see Skachkov, cited above, § 54).

71. The Court also notes that as it was stressed by the CPT’s report (see paragraph 55 above) no recreational or education activity was available to prisoners sentenced to life imprisonment in Gobustan Prison and this situation involved very little human contact, limited in principle to the cellmate and to prison guards.

72. This situation was further exacerbated in the case of the applicant by the fact that he had been placed alone in a cell from 14 February 2008 to 16 December 2010, approximately two years and ten months, and spent almost twenty-three hours per day alone in his cell during this period. In this connection, the Court notes that it is true that during this period the applicant continued to enjoy the rights granted to other life prisoners, such as to watch TV, to have a radio set in his cell, to receive and to send correspondence and parcels, to have access to a library and to receive visits from his lawyer and his family and he cannot be considered to have been in complete sensory isolation or to have been totally isolated from social contact, and that his isolation was partial and relative (see, mutatis mutandis, Rohde, cited above, § 97, and Csüllög v. Hungary, no. 30042/08, §§ 32-33, 7 June 2011). However, even such a partial and relative isolation aggravated the conditions of his detention involving for him less human contact than other life prisoners sharing their cell with other inmates. For the applicant, human contacts were practically limited to conversations with fellow prisoners during the one-hour walk and occasional dealings with prison staff (see Iorgov v. Bulgaria, no. 40653/98, § 82, 11 March 2004).

73. The Court wishes to reiterate that prolonged solitary confinement is undesirable (see Ramirez Sanchez, cited above, § 122) and such a lengthy period may give rise to concern because of the risk of harmful effects on mental health, as stated on several occasions by the CPT (see Rohde, cited above, § 97). Moreover, solitary confinement, even in cases entailing only relative isolation, cannot be imposed on a prisoner indefinitely and should be based on genuine grounds, ordered only exceptionally with the necessary procedural safeguards and after every precaution has been taken (see Onoufriou v. Cyprus, no. 24407/04, § 70, 7 January 2010, and Ramirez Sanchez, cited above, § 139).

74. In this connection, the Court observes that the reasons given for the applicant’s placement alone in a cell were his attitude to the prison guards and breaches of disciplinary rules, as well as his allegedly unsubstantiated complaints to various authorities. The Court reiterates in this respect that the solitary confinement should not be applied as a punishment for sending complaints to various authorities and the latter action of the applicant cannot be a substantive reason for his placement in solitary confinement. Nothing indicates in the domestic law that solitary confinement may be imposed when a prisoner sends complaints to domestic authorities. Furthermore, the Court does not lose sight of the fact that the Government did not convincingly show why it was necessary to separate the applicant from other prisoners.

75. As to the procedural safeguards concerning the application of the solitary confinement, the first available official decision of the prison authority on the applicant’s placement alone in a cell was dated 25 July 2008. In these circumstances, it is not possible to establish on which ground and by which decision the applicant was placed and detained alone in a cell from 14 February to 25 July 2008. The Court also observes that the prison authority reviewed its decision of 25 July 2008 for the first time only on 4 August 2009, more than one year later. During this period, the applicant was deprived of the opportunity to benefit from the procedural safeguard providing for a regular review of his solitary confinement, taking into consideration the applicant’s personal circumstances, situation and behaviour.

76. In sum, having regard to the fact that the applicant spent during his detention almost the entire day and night confined to his cell, without any recreational and education activity, and that this situation was exacerbated by his placement alone in a cell, without genuine grounds and procedural safeguards, which involved for him less human contact, the Court considers that the distress and hardship endured by the applicant during his detention in Gobustan Prison after 15 April 2002 exceeded the unavoidable level inherent in detention and to be considered as inhuman and degrading treatment. There has accordingly been a breach of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION CONCERNING THE APPLICANT’S ILL-TREATMENT BY THE PRISON GUARDS

77. The applicant complained that he had been beaten and ill-treated by prison guards on 11 January 2004, and that the domestic authorities had not carried out an effective investigation into his complaints of ill-treatment. Article 3 provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

78. The Government submitted that the applicant had failed to exhaust domestic remedies in respect of his ill-treatment claim. The Government noted that effective domestic remedies were available in the domestic law against any action or omission of prison guards. The Government also rejected the applicant’s allegation concerning his ill-treatment. In particular, the Government relied on a video recording of the applicant’s meeting with the Ombudsman on 14 February 2004.

79. The applicant disagreed with the Government’s submissions. He alleged, in particular, that the domestic remedies had been ineffective, because they refused to admit his complaints for procedural reasons. The applicant reiterated his complaints.

80. The Court observes that, in the present case, the applicant complained to the prosecuting authorities and lodged a civil action with domestic courts.

81. The Court reiterates that the rule of exhaustion of domestic remedies does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given. It normally requires also that complaints intended to be made subsequently at Strasbourg should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, inter alia, Cardot v. France, 19 March 1991, § 34, Series A no. 200).

82. In this connection the Court observes that following the applicant’s criminal complaint the prosecution authorities opened an investigation. However, by a decision of 24 November 2005, the Deputy Prosecutor of Garadagh District refused to initiate criminal proceedings for lack of evidence concerning the applicant’s ill-treatment allegations. As with any decision by prosecuting authorities concerning refusal to institute criminal proceedings or to discontinue criminal proceedings, this decision was subject to an appeal before the domestic courts, however the applicant did not appeal against this decision (a contrario, see Mammadov v. Azerbaijan, no. 34445/04, §§ 22-27, 11 January 2007 ).

83. Concerning the civil action, the Court notes that the applicant’s actions were rejected by the domestic courts for non-compliance with the formal requirements for lodging a complaint. The applicant did not appeal against those decisions.

84. The applicant did not state whether there were special circumstances in the present case which would dispense him from the obligation to challenge the prosecutor’s refusal to initiate criminal proceedings or the court’s refusal to admit his civil action for failure to comply with the procedural requirements. The Court reiterates that mere doubts about the effectiveness of a remedy are not sufficient to dispense with the requirement to make normal use of the available avenues for redress (see Kunqurova v. Azerbaijan (dec.), no. 5117/03, 3 June 2005).

85. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

86. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

87. The applicant claimed 14,000 euros (EUR) in compensation for non‑pecuniary damage.

88. The Government submitted that the applicant’s claim was unsubstantiated and excessive.

89. The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated solely by the finding of violations, and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 7,500 under this head, plus any tax that may be chargeable on this amount.

B. Costs and expenses

90. The applicant also claimed EUR 2,000 for costs and expenses incurred before the Court.

91. The Government submitted that the applicant’s claim was unsubstantiated and lacked the documentary evidence.

92. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that the applicant was represented before the Court and it is undisputed that the representative provided relevant documentation and observations as requested by the Court. In these circumstances, the Court finds it appropriate to award the applicant EUR 2,000 in respect of costs and expenses.

C. Default interest

93. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint under Article 3 of the Convention concerning the applicant’s conditions of detention in Gobustan Prison during the period after 15 April 2002 admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention as regards the applicant’s conditions of detention in Gobustan Prison during the period after 15 April 2002;

3. Holds

(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, EUR 7,500 (seven thousand five hundred euros) in respect of non-pecuniary damage and EUR 2,000 (two thousand euros) in respect of cost and expenses, plus any tax that may be chargeable to the applicant on those amounts, which are to be converted into Azerbaijani manats (AZN) at the rate applicable on the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 4 July 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident

Full & Egal Universal Law Academy