LEGAL OPİNİON: Azerbaijani President initiated fundamental changes to the criminal justice system
In June 29, 2017, President of the Republic of Azerbaijan Mr. Ilham Aliyev submitted the draft law on Humaniation of the Criminal Legislation to Milli Mejlis (Parliament) of Azerbaijan. This initiative of the President, is a follow up process to February 10th 2017 Presidential 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.
In accordance to the United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) Adopted by General Assembly resolution 45/110 of 14 December 1990 member States shall develop non-custodial measures within their legal systems to provide other options, thus reducing the use of imprisonment, and to rationalize criminal justice policies, taking into account the observance of human rights, the requirements of social justice and the rehabilitation needs of the offender.
The analysis of the Draft Law by the Group of Experts of the Think-Tank “Legal Analysis and Research” shows that the draft law initiated by the President of Azerbaijan, is in line with The Tokyo Rules. As a most comprehensive package of suggestions due to its relevance, conceptuality, and regulatory scope, prepared in recent years in Azerbaijan, this draft law can be classified in a following way:
- Decriminalization of crimes
The draft law provides for decriminalization of the number of criminal actions in the Criminal Code including the crimes that do not pose a significant public threat, the crimes committed out of negligence and a range of other crimes.
The draft law envisages a five-fold increase in the amounts of fine imposed for crimes against property, instead of detention. As a result, a number of acts will shift from the category of crime to the category of administrative offence.
- Restriction of liberty instead of deprivation of liberty
Lack of alternative penalties in the sanctions resulted in increase of the number of people deprived of liberty in Azerbaijan. In order to reduce the application of imprisonment and introduce non-custodial alternative penalties instead of sanctions, a new type of penalty has been introduced to the Criminal Code. That is a penalty on restriction of liberty consisting of surveillance of the convicted on place of residence without complete isolation from the society. The newly introduced penalty of restriction of liberty will be a significant tool for elimination of this problem. In general, in more than 140 articles of the Criminal Code, restriction of liberty has been introduced to the sanctions as an alternative form of penalty. Besides, fines and other penalties alternative to the deprivation of liberty have been added to the sanctions of 80 more crimes.
In accordance to the United Nations Standard Minimum Rules for Non-custodial Measures, the criminal justice system should provide a wide range of noncustodial measures. The number and types of noncustodial measures available should be determined in such a way so that consistent sentencing remains possible. Non-custodial measures should be used in accordance with the principle of minimum intervention.
Another important issue is the supervision of the implementation of the non-custodial sentences. The Tokyo Rules says, the purpose of supervision is to reduce reoffending and to assist the offender’s integration into society in a way which minimizes the likelihood of a return to crime. If a non-custodial measure entails supervision, the latter shall be carried out by a competent authority under the specific conditions prescribed by law.
Observing the penalty conditions by convicted persons will be achieved by means of modern information and communication technologies. Thus, the electronic monitoring device will be placed onto the persons sentenced to restriction of liberty and their location and movement will be constantly monitored. The electronic monitoring devices will be also used for application of such sanctions like conditional conviction or premature conditional release from punishment.
Besides, in accordance with the draft law, the sanctions provided in the Criminal code have been reviewed and limits for prevention of liberty penalty for more than 80 criminal actions have been reduced.
The overall responsible state body for the implementation of the non-custodial sentences will be the new Probation Agency under the Penitentiary service of the Ministry of Justice. The decree of the President signed in February 2017, gives a legal basis for the establishing of the Probation Agency in the nearest future.
- Liberalization of sanctions for economic related crimes
According to the proposed new norms persons who committed a range of crimes related to the economic crimes shall be released from criminal liability if fully paid the damage. The persons who caused larger damage (in large or very large amounts) or obtained illegal profit shall be released from criminal liability after fully paying the damage and, in addition, payment of the one-time damage (for some crimes it is doubling damage) caused by the crime to the state budget.
At the same time, the victim-offender reconciliation institute provided in the criminal code is improved and in more than 20 articles the possibility of being released from the criminal liability is introduced given that the victim and offender reconcile and the damage is paid.
- New penalties for the drug related crimes
One of the conceptual issues provided in the draft law is changing the attitude towards those charged with acquisition and possession of drugs and drug substances in the criminal legislation. First of all, these persons are recognized as people with drug addiction. The obligatory inpatient medical treatment is applied to the person with drug addiction who committed a crime of obtaining drugs without the purpose of trafficking, not having an intention to commit any other crime. Person shall be exempt from criminal liability after being recovered. The possibility of being released from liability is provided to the person only once. Persons avoiding the treatment are subject to criminal liability.
Legal Analysis and Research Public Union considers the draft law and progressive step in fundamental changes to the criminal justice system, and at the same time due to the revolutionary character of the proposed changes, wants to stress the importance of the public understanding on the issue.
In accordance to the United Nations Standard Minimum Rules for Non-custodial Measures, article 18.1, government agencies, the private sector and the general public should be encouraged to support voluntary organizations that promote noncustodial measures. For the purpose of achieving a public understanding towards the issue, conferences, seminars, symposiums and other activities should be regularly organized to stimulate awareness of the need for public participation in the application of non-custodial measures. All forms of the mass media should be utilized to help to create a constructive public attitude, leading to activities conducive to a broader application of non-custodial treatment and the social integration of offenders. Every effort should be made to inform the public of the importance of its role in the implementation of non-custodial measures.