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Humanization of the penal policy contributes to ensuring human rights

31 March 2017 17:29 (UTC+04:00)
Humanization of the penal policy contributes to ensuring human rights

In early February 2017, Azerbaijani President Ilham Aliyev signed an Executive Order on improving work in the penitentiary system, humanization of the punishment policy and expansion of alternative punishments and procedural enforcement measures not associated with isolation from society.

Justice Minister Mr. Fikrat Mammadov, in an exclusive interview with Azertac, discussed the work done one month after the adoption of the Executive Order.

Question: Mr. Mammadov, is it possible to evaluate the 10 February 2017 Executive Order of the President regarding humanization of the penal policy as a continuation of the legal reforms under way in our country?

Answer: As you know, since the very beginning of his activity President Ilham Aliyev has been paying special attention to increasing the effectiveness of justice. Consistent measures have been taken to modernize the judicial and legal system of our country. Activities related to the execution of punishments were not left overlooked either. As a manifestation of state policy in this field, a separate law was adopted to guarantee the rights and freedoms of the accused persons held in places of pre-trial detention, their privileges were expanded and special attention was paid to improving their detention conditions, medical and other provisions.

The 10 February 2017 Executive Order gave an impetus to extensive continuation of progressive reforms in the legal system, laying the foundation for rapid evolution in this area. The purpose of the Order is to review the approach to penal policy, criminal legislation, and the issues of the rights of convicts, as well as to improve the penitentiary system and the application of progressive international experience in this field, and all of it against the backdrop of the development of our country and the successes achieved.

The Order serves as yet another evidence of the sensitive attitude of our President towards more reliable exercise of human rights, including the rights of convicts. At the same time, being a program-type document, it defines strategic goals and represents a kind of a roadmap for courts, investigative agencies, justice and prosecution authorities.

In order to conduct detailed analysis, and to timely, well-concertedly and accurately implement the tasks set out in the Order, this issue was discussed urgently at an expanded meeting of the Plenary Board of the Ministry of Justice, specific measures were identified, a presentation was made regarding the functionality and rules for the use of electronic monitoring devices.

In addition, the tasks arising from the Order were also discussed at an expanded meeting held at the Supreme Court with the participation of judges, public prosecutors and heads of investigative bodies. A working group consisting of experienced officials from the Ministry of Justice, the General Prosecutor’s Office and the Supreme Court was set up.

In connection with the forthcoming tasks, regular meetings are held in the field with justice officials and judges, appropriate instructions and recommendations are given, the leadership and staff of the ministry organize comprehensive educational work to communicate the humane nature of the Order to the wider public.

The Ministry is to inform the President of Azerbaijan about measures taken to implement the Order every six months, which of course mobilizes every one of us and puts a great responsibility on us.

Q.: Can the said Presidential Order be also seen as a continuation of the policy of humanity in our country?

A.: Absolutely. One of the main goals of the Order lies in the humanization of the penal policy and the reliable protection of the convicted and accused persons’ rights.

Commitment to the policy of humanity, the basis of which was laid by the National Leader Heydar Aliyev, has become one of the basic principles of public administration today. Suffice it to say that nearly 3,400 prisoners were pardoned by the decisions signed by our President in the recent period.

First Vice President of the Republic of Azerbaijan and President of the Heydar Aliyev Foundation Madam Mehriban Aliyeva has always advocated the ideology of charity and philanthropy. The four acts of amnesty adopted on her initiative have covered almost 40,000 people, which served the goal of correction of the perpetrators of crimes and their reintegration into society. I am very pleased to note that the appointment of Madam Mehriban Aliyeva to the post of First Vice President of the Republic of Azerbaijan was widely welcomed in our society. It has instilled full confidence in our people that her multifaceted and persevering activity would make an important contribution to the all-round development of our country, including the successful implementation of major projects aimed at improving the social situation of our people, the development of science, education and health, the further successful development of ideas and principles of humanity, tolerance and public policy in this area.

In addition, on the initiative of the President of Azerbaijan important changes were made to the criminal legislation last year. They related to decriminalization of certain acts in the economic sphere. The Ministry of Justice has identified the circle of persons covered by the new law and sent a motion to the courts regarding more than 1,400 convicts, many of whom were released from custody or had their sentences shortened.

Undoubtedly, the new Order of the Head of State will eventually also create conditions for the reliable exercise of the rights of convicts, decriminalization of a number of crimes, humanization of the penal policy and broader use of punishments alternative to deprivation of liberty.

Q.: The Order notes that widespread use by courts of penalties in the form of arrest and growth of the dynamics of deprivation of liberty lead to the overloading of penitentiary institutions. Necessary instructions are provided in this regard. What is being done in this area now?

A.: First of all, I would like to note that although our population has increased by almost 20 per cent since the new legal system began to operate in 2000, the number of convicts has remained reasonably stable , which is an important achievement in ensuring public security, law and order in our country. However, the number of people deprived of their liberty among convicts has increased in comparison with previous years.

The analysis shows that in pursuit of the penal policy the courts prefer imprisonment and arrest as a restraining measure, which has led to an increase in the number of convicted and accused persons held in penitentiary institutions, the overloading of these institutions, and most importantly, excessive restriction of people’s right to freedom.

I would like to note that a few years ago the Supreme Court summarized the judicial practice associated with selecting arrest as a restraining measure, introduced the summery at a plenary session and adopted a detailed resolution. In addition, courts were advised to be sensitive to this issue, and to widely use measures alternative to detention in accordance with the requirements of the European Convention on Human Rights, the case-law of the European Court of Human Rights, and the criminal procedure legislation. For gross violations in this area, about 30 judges and prosecutors were brought to strict disciplinary liability. Moreover, three judges had their powers terminated. A meeting of the Judicial-Legal Council held last month highlighted the judges' responsibility for the protection of human rights, especially the right to freedom. In this context, the importance of a sensitive approach to the selection of a preventive measure in the form of arrest was emphasized.

However, the analysis of judicial practice shows that violations in this area have not been completely eliminated and the penal policy is not consistent with the principles of humanity initiated by the Head of State. In order to implement the recommendations given in the Order in this regard, the Supreme Court is currently reviewing and summarizing judicial practice in this area and the penal policy in general. Therefore, a broad discussion of the results is planned shortly.

One of the instructions stemming from the humanistic values of Mr. President is related to the revision of the criminal legislation and preparation of new draft laws aimed at liberalization of the penal policy.

In this regard, we plan to introduce a number of changes to the legislation, including those related to decriminalization of crimes in the economic sphere, addition of sanctions for crimes alternative to deprivation of liberty, wider application of existing alternative punishments, release on parole and conditional sentencing, and the use of preventive measures alternative to arrest. Currently, a joint working group of the Ministry of Justice, the General Prosecutor’s Office and the Supreme Court is preparing relevant draft laws.

It should also be noted that as a result of the immediate implementation of the recommendations and instructions provided in the Order, more than 250 detainees were lawfully released from pretrial detention facilities in the past month alone. In addition, the number of arrested persons admitted to remand centers has significantly decreased. I consider these to be important indicators in terms of the objectives of the Order.

One of the main novelties of the Order is connected with the use of modern electronic means of monitoring in the course of execution of punishments and application of preventive measures. The use of such devices, naturally, will create conditions for a wider application of measures of restraint and punishment that do not involve isolation from society.

I would like to note that the most common electronic monitoring tool is the "electronic bracelet". This bracelet is placed onto the hand of a person during the punishment or the selection of a preventive measure not associated with arrest, and the geographic location of the person is determined by technical means. In order to apply this practice in our country, international experience was studied and a presentation of various "electronic bracelets" was conducted. According to the instructions of the Head of State, relevant proposals were prepared together with the General Prosecutor’s Office to amend relevant regulatory legal acts.

Q.: One of the important novelties established by the Order is the introduction of a Probation Service under the Ministry of Justice. It would be interesting to know about this new institution for our country and the work carried out in connection with its introduction.

A.: In international practice, the probation envisages the transfer of non-imprisoned convicts or of non-detained accused persons under supervision of a special body for a certain period of time. The wide application of this institution, naturally, creates conditions for the correction of convicts outside the penitentiary institution, directly within the society. Probation is mostly widespread in the Anglo-Saxon legal system. In these countries, when deciding on the possibility of shifting to a probation regime, courts transfer the convicted person into the supervision of a probation officer who oversees his behavior for a certain period of time.

In various states, the terms of probation generally may last from six months up to 10 years. During this period, the convicts are obliged to observe the rules established within the conditions provided by the court judgment. Otherwise, based on an application of the probation officer to the court, the established conditions can be changed. Conversely, if the observations of the probation officer testify to the correction of the convicted person, the court can take a decision related to the total abolition of probation or the reduction of the probationary period.

The application of the probation regime also depends on the nature and degree of public danger of an act. One of the interesting aspects of probation is that in a number of countries it is also appointed as the main type of punishment.

In recent years, in connection with the increase in the number of persons held in detention centers, efforts have been intensified in Europe to create such a service, and in order to organize it the Committee of Ministers of the Council of Europe on 20 January 2010 adopted the Recommendation on the CoE Probation Rules.

Currently, within the framework of a project to support the development of the justice system being implemented by the Ministry of Justice in cooperation with the European Union, pilot projects are being prepared in our country related to setting up the Probation Service, conducting training courses for employees and the use of electronic monitoring of convicts.

In order to use international experience in this field, our employees are sent to foreign countries to get acquainted with the models existing in the world. During a visit of the Minister of Justice of Georgia to Azerbaijan last month, discussions were held related to the Probation Service and the use of the "electronic bracelet". In order to study these practices, our delegation visited Georgia without delay. Before that, we studied the experience of Turkey in this field.

In accordance with the instructions of the Head of State on the organization of this service in our country, a package of specific proposals has already been prepared.

In addition, the Order contains important instructions from the point of view of increasing the value of punishment in the form of community works as a form of punishment not related to deprivation of liberty. In this regard, the Ministry takes the necessary measures, including the preparation of a draft law that would establish liability of officials for creating conditions for convicts to evade their sentences in the form of public works. I believe that the establishment of the Probation Service will also play an important role in eliminating problems in this area and enhancing the corrective effect of punishment.

In addition, we plan to extensively use mediation, i.e. methods of pre-trial alternative dispute resolution.

Q.: Application of mediation can also become an important innovation for our country. We would like to learn more about this tool.

A.: The institute of mediation, which is an important tool in resolving civil disputes, is simultaneously aimed at an alternative and extrajudicial resolution of criminal and legal conflicts. This institution is widely used in many developed countries.

In the process of mediation, if pre-trial or post-court reconciliation is achieved between the accused or the convicted person and the injured party, the accused or the convict may be released from punishment by means of assignment of various obligations on them, including compensation for material or pecuniary damage caused, an apology, provision of assistance, etc.

Application of mediation as a progressive institution is encouraged throughout the world. To this end, the Council of Europe adopted the Recommendation on Mediation in Penal Matters back in 1999, while the United Nations in 2002 adopted Basic Principles on the Use of Restorative Justice in Criminal Matters.

The establishment of mediation has been on the agenda in our country, too. A number of steps have been taken in this direction, including the study of international experience and the preparation of proposals for the introduction of the model in Azerbaijan.

The Strategic Roadmap on the production of consumer goods at the level of small and medium enterprises in the Republic of Azerbaijan, approved by the Head of State in December last year, contains specific instructions related to the drafting of a law on mediation and creation of a Mediation Council this year, which, undoubtedly, will give an impetus to the development of this institution in our country.

Q.: The Order establishes concrete and comprehensive measures to be implemented in connection with the improvement of activities in the penitentiary sphere. The fulfillment of these instructions will probably speed up the reforms in this area.

A.: Right. Functioning of the penitentiary sphere at the level of modern requirements has always been in the focus of the Head of State. In this regard, the Order provides for specific instructions related to the modernization of activities in this area, upgrading the infrastructure, strengthening control over the conditions of convicts, expanding production sites, forming professional staff, organizing reliable protection of institutions, increasing transparency, preventing cases that create conditions for corruption and other negative phenomena, etc.

Influential international structures have also approved the issues raised in the Order. The President of the Council of Europe Committee for the Prevention of Torture (CPT), Mr. Mykola Gnatovskyy, who has recently visited our Republic, described the President's Order as the cornerstone of a new penal policy and stressed that the essence of the document coincides with the Committee's goals. He said that it would serve to improve the penitentiary system and reliable protection of the rights of convicts.

As early as in 2009, the Head of State, who always considers the rights of convicts as a priority, visited the Baku pre-trial detention facility built in Zabrat Settlement in accordance with international requirements, got familiarized with the conditions there and gave necessary instructions on the continuation of measures in this area.

In this regard, in order for the accused persons and convicts to serve their sentences closer to their places of residence, important work was done to build penitentiary infrastructure in the regions, modern penitentiary centers were built and put into operation in the Nakhchivan Autonomous Republic and Sheki. At present, the construction of such institutions for female and minor prisoners is under way in Ganja and Lankaran, as well as Zabrat Settlement of Baku, while for those sentenced to life imprisonment in Umbaki.

In recent years, consistent measures have been taken to improve the quality of medical care for the convicts. In close cooperation with international organizations in this field, including in the fight against tuberculosis among convicts, there have been great successes that can serve as an example for other states. It is no coincidence that in the last 20 years, deaths among convicts have significantly decreased, while mortality rate from tuberculosis has dropped 100 times. At the same time, we have additional important tasks on improving medical service in penitentiary institutions and protecting the health of convicts. Specific measures have been identified and are already being implemented in this direction.

In addition, within the framework of the Justice Reform Support Programme being implemented by the European Union in conjunction with the Ministry of Justice, special attention is being paid to broader involvement of convicts in labor. Within the framework of the project, new production sites have already been established in a number of penitentiary institutions, machine tools have been renewed in some production sites and individual work sites. Different types of equipment have been purchased and transferred to the institutions. As a result, the number of people engaged in work in penal institutions increased in 2016, exceeding 5,400 people. Recently, exhibitions of products manufactured by convicts were organized with the participation of representatives of the public and entrepreneurs. Such events are very important. This also serves to increase employment of convicts, compensate for the damage caused as a result of their crimes and abandon bad habits.

Of course, the work done in this direction is not enough. The President's instructions related to the restoration of existing and creation of new production sites, the involvement of businessmen and entrepreneurs have set new priorities for us. At present, in close cooperation with relevant structures and the application of new approaches, measures are being prepared to achieve fundamental changes in this area.

Positive results largely depend on the proper implementation of the human resources policy. In order to fill out the penitentiary service with prepared and morally clean young personnel, we regularly conduct open competitions for admission to the service. In addition, on the basis of an agreement with the Ryazan Academy of Law and Administration of the Federal Penitentiary Service of the Russian Federation, the Academy carries out training of specialists for the Penitentiary Service. Moreover, in accordance with the Cabinet of Ministers decision, the Military Medical Faculty of the Azerbaijan Medical University is preparing doctoral personnel especially for work in the penitentiary system.

Upon completion of their training all these human resources are made available at the Ministry’s disposal.

In recent years, more than 950 specialists have been admitted to the Penitentiary Service. Another large group of young specialists joined the service the other day. In order to increase the level of training of young specialists, great importance is attached to their involvement in classes and professional development courses at the Academy of Justice. Appropriate cultural events are organized to develop a comprehensive spiritual and esthetic worldview of young people.

At the same time, the necessary measures have been outlined for more prompt filling out of the positions in the Penitentiary Service, development of knowledge and practical skills of employees, improvement of the system for assessing employee performance, and specific assignments have been given to relevant officials.

Reliable protection of penitentiary institutions, being an important sphere, has a positive impact on the provision of discipline and security. In accordance with the instructions set out in the Order, complete staffing of the Penitentiary Service with servicemen of active military service will make the necessary contribution to improving the quality of work in this area.

Besides, one of the main tasks we are facing is the fulfillment of the President’s instructions connected with the organization of the Prisoners and Arrested Persons information system. In this regard, work is currently under way to expand the electronic database system in the Penitentiary Service, with particular attention being paid to ensuring the mutual exchange of real-time data between the bodies and institutions executing punishment, application of criteria established by the advanced international organizations related to such systems.

At the same time, the Order outlines measures related to serving sentences in settlement type institutions in accordance with the procedure established by the Punishments Enforcement Code and strict adherence to the rules by convicts, prevention of cases that create conditions for corruption in this sphere and other negative phenomena.

To implement the instructions of the Head of State and achieve radical changes in this area, effective measures were planned and necessary work carried out.

Q.: The Order raises the issue of the wide application of the institution of release of convicts on parole. What can you say about this?

A.: Release of convicts on parole and the replacement of the unserved part of punishment with a lighter penalty are among the most important tools in the policy of execution of punishment.

The main factors here, of course, are the completion of the part of the punishment established by law, his behavior, attitude to work and the positive feedback of the institution. In this connection, the Supreme Court once summarized the available experience and adopted a comprehensive decision. It requires strict observance of the requirements of law in the consideration of appeals of this nature by courts, an individual approach to each convict, the immediate execution of the decision after its adoption and other important issues.

In addition, the Judicial-Legal Council has adopted strict disciplinary measures against judges who committed gross violations of law in this sphere.

In order to eliminate the negative phenomena in the application of this practice, ensure collegiality, objectivity and transparency, in 2013 the Ministry of Justice set up a special Commission, which brings together officials of the ministry, including the Penitentiary Service, as well as representatives of the public and human rights defenders. Over the past period, the Commission determined that more than 7,000 convicts deserved parole or transfer to institutions with a lighter regime. 97 per cent of cases reviewed by the courts have been resolved positively. The minimization of facts of a repeated commission of a crime by the conditionally released persons testifies to the objectivity of this process and the actual correction of these convicts.

In order to ensure maximum transparency of the Commission's activities, the practice of inviting parents and close relatives of convicts to its meetings is also used. In this process, we should especially note the contribution of the Public Committee operating under the Minister of Justice, which includes authoritative human rights defenders and representatives of non-governmental organizations.

At present, in accordance with the instructions of the Head of State, additional measures are being taken to increase the efficiency of work, ensure full transparency in this area and establish a range of all convicts subject to conditional release. Educational and awareness-raising activities are conducted among the convicts. They are made aware that in the event of strict observance of the rules of the regime, active participation in the correctional process and public events, and, finally, exemplary conduct, they may fall under release on parole.

By the way, I would like to note that the rights of the persons sentenced to life imprisonment are not left without attention. The practice of applying this type of punishment is being analyzed and the possibilities for improving the mechanisms for its execution are being examined.

Of course, the use of the said humanistic measures not only gives a sense of joy to the families and relatives of convicts, but also creates an incentive for the correction by other convicts, encouraging them to abandon illegal actions and increasing faith in justice.

The reintegration of convicts to society as full members is also in the center of the state attention. In 2007, a separate Law on Social Adaptation of Persons Released from Punishment in Penitentiary Institutions was adopted. A Center for Social Adaptation for such persons is currently under construction.

Q.: Mr. Mammadov, when do you expect to complete the execution of the Order?

A.: Each specific task that has been set will certainly be implemented in a short time in accordance with the instructions of the President.

At the same time, as I have already said, this Order also plays the role of a "roadmap" that defines strategic goals and paves the basis of our further activity in the above mentioned spheres.

We are confident that an organized, timely and accurate fulfillment of tasks arising from the instructions of the Head of State will give an impetus to the humanization of the penal policy, serve to better protection of the rights of convicts and shift the reforms carried out in this field to a new stage.


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