Saturday, 19 Sep 2020

On the verge of a big change in penal system reform in Azerbaijan

Probation Service will be created in Azerbaijan by the Order of the President Ilham Aliyev, to improve the penal sphere, the humanization of punishment and expanding the use of alternative measures without isolation from society.

According to the Presidential Order, the Ministry of Justice  is to modernize the penal institutions, to upgrade infrastructure and improve the management mechanism. Ministry of Justice  has been tasked within a month to submit to the President proposals for the organization of the probation service, reads an official statement, but it is not specified what will be  function of the new structure.

The order will provide complex, institutional, legislative, and practical measures for liberalization of the criminal law policy, limitation of use of arrest and detention measures for crimes not posing significant public threat or less serious crimes, decriminalization of the crimes, elimination of the cases creating conditions for corruption in the sphere of criminal prosecution and execution of penalties, and application of the modern Information and Communication Technologies (ICT). It will stimulate implementation of the next wave of reforms in every direction mentioned above.

Along with being a sort of program for development of the penitentiary sphere and humanization of the punishment policy the Order will be a “road map” for the state bodies working in this field.

Non-custodial sentences

Another important aim of the Presidential decree is to promote use of non-custodial sentences. The Presidential Order says, in application of measures of restraint by investigation authorities and courts, provisions of criminal procedure law concerning grounds for arrest shall be strictly complied with, and the level of application of alternative sanctions and measures of procedural compulsion shall be extended to attain aims of punishment and of measure of restraint through non-custodial means. Extension of cases of application of measures of restraint alternative to arrest; simplification of rules for amendment of arrest by alternative measures of restraint; and further limitation of grounds for arrest for low-risk or less serious crimes should be applied.

International standards says that, when a court needs further time to complete dealing with a case it must decide whether the defendant can be released or should be held in custody. The main concerns are whether the defendant will commit further crime, fail to attend a future hearing or interfere with further enquiries.

It is generally accepted that pre-trial detention should be reserved for the highest risk offenders. Negative long-term consequences can arise from holding people unnecessarily in such prisons, and separating them from family and other positive influences at this time of crisis in their lives. Long periods of isolation and exposure only to other people with similar criminal attitudes appear to increase the likelihood of an eventual custodial sentence and recidivism.

In the practice of other countries, a range of non-custodial methods can be used to ensure that people accused of crimes can be safely released while they wait for their cases to be decided. In rising levels of security these methods are:

  • Recognisance. This is a simple, solemn promise to keep the requirements and is the main method in low-risk cases. The court can attach specific conditions to this release such as remaining in employment or avoiding alcohol
  • Bail. This is a stronger form of restraint in which the accused must pay money to the court if he or she fails to keep all the requirements of release.
  • Surety. This is where an individual who knows the accused person promises to ensure s/he fulfil the requirements of the court. This individual must be prepared to pay money if the person fails to keep to the requirements.
  • Curfew. In more serious cases the person can be ordered to be at a specific location for set hours each day (possibly with electronic monitoring).
  • Bail Hostel. The defendant can be required to live at a special hostel supervised by the probation service. In some jurisdictions probation staff give advice to courts about the level of restraint necessary.

In November 2009, the Supreme Court of Azerbaijan requested lower instances courts to restrict the use of pre-trial detention as restrictive measure pending the beginning of trial proceedings. According to that decision, judges shall consider the possibility of applying other restrictive measures in accordance with the provisions in the CPC, including cases where the accused does not pose a threat to victims, witnesses or the public at large and when there is no risk of interfering with ongoing investigations. According to Azerbaijani legislation, judges should not extend unreasonably the detention of an accused person if it is no longer justified. Thus, upon having duly considered all circumstances and arguments put forward in connection to each case, judges may decide to replace detention on remand by home arrest and release on bail as alternative restrictive measures to remand in custody. The ECtHR has recognized four reasons as relevant for continuing keeping accused in remand detention, namely the risk of evading justice, interfering with the cause of justice, the need to prevent the commission of a crime and the need to preserve public order.

Conditional Sentence Methods in Azerbaijan

Translation of the term Probation from Latin means testing and in the law theory this notion is used in the meaning of release the person from punishment in exchange for fulfilment of certain conditions. The Probation Institute is an essential part of the criminal justice system in majority of western countries including Sweden, US, Finland, Latvia, Great Britain, Denmark, Estonia and others.

Although, the functions and the scope of competence of the Probation Services existing in the foreign countries are different for certain features, there are common characteristic features. These services are the institutions controlling fulfilment of the conditions determined with the sentence by the convict as well as ensuring execution of the non-custodial punishment.

The Penitentiary Department of the Ministry of Justice of Azerbaijan is responsible for supervising conditional sentences. This sanction has few of the features of equivalent sentences in European countries. In particular, little attention is given to the main forms of rehabilitation such as problem solving, social training or help with practical problems. The staff who provide the service lack the kind of training provided in European countries.

According to the figures of the Azerbaijan Statistic Committee 13,270 offenders were found guilty of crimes in 2015. Only 7830 of them were deprived of liberty. The rest of the convicted persons received non-custodial sentences, such as under 10% of the offenders (1,102) were given a ‘conditional sentence’, 1818 ‘correctional works’, and 2283 of them paid fines.

The main objectives of the Probation Service that will be established in Azerbaijan is to raise the quality of organizing the work with persons sentenced to non-custodial punishment or sentenced to conditional punishment to a new level and to ensure application of the modern ICT for this activity.

Ramil Iskandarli

Chairman of the Legal Analysis and Research Public Union