Reform developments and contextual background
In recent years, within the framework of the deepening of judicial and legal reforms in Azerbaijan, important work has been done on the humanization of penal policy, the application of alternative punishments, the study of international experience in this field, and important steps have been taken to introduce new and efficient mechanisms in the justice system. In this regard, the Decree of the President of the Republic of Azerbaijan signed on February 10, 2017 “On improving activities in the penitentiary field, humanizing the penal policy and expanding the application of alternative punishment and procedural coercive measures not related to social isolation” is a logical continuation of the reforms implemented in our country which defined new strategic goals. In the order, the establishment of the execution of punishments in accordance with modern requirements, the application of modern technological tools in this field, the organization of effective control over the execution of punishments and other conceptual issues are provided for, for this purpose, a new institution for the execution of punishments not related to the isolation of convicts from society – the Probation Service of the Ministry of Justice was created and appropriate organizational measures have been taken.
In 2019, reforms in the judicial system entered a new stage in accordance with modern challenges. Thus, the Decree of the President of the country on April 3, 2019 “On Deepening the Reforms in the Judicial-Legal System” which promoted progressive reforms in the judicial-legal system in that year, caused a serious turn in this field. The Decree, which is an important “roadmap” for the judiciary and judicial system, was immediately implemented together with the relevant institutions, and complex legislative, institutional and practical measures were taken in a short period of time. First of all, a number of important measures have been taken by studying advanced international experience related to the organization of commercial courts, the humanization of penal policy and the decriminalization of crimes, the improvement of the execution of court decisions and the activity of forensic expertise, including the application of alternative – private expertise, the formation of unified judicial practice and other issues.
On the basis of the mentioned documents, significant achievements have been made in the implementation of new alternative mechanisms, including the institution of mediation, alternative punishments in the justice system in Azerbaijan, and consistent measures have been taken to develop alternative dispute resolution mechanisms over the past years. In order to promote the application of mediation for the development of entrepreneurship, strategic roadmaps for the national economy and the main sectors of the economy were approved by the Decree of the President of the Republic of Azerbaijan. According to the decree, taking into account the advanced experience of foreign countries, measures are taken to promote effective international arbitration procedures in our country.
The Law “On Mediation” was adopted, thereby creating mechanisms for out-of-court settlement of civil cases and commercial disputes, disputes arising from family and labor, as well as administrative law relations. Experienced mediators have been trained, the Mediation Council consisting of mediators has been formed and mediation organizations have started to operate. Over the past years, a number of projects have been implemented with the Ministry of Justice with the financial support of the European Union, directly and regionally, as well as through international organizations, a significant part of which was related to the implementation and development of alternative dispute resolution mechanisms. Within the framework of the projects, the experience of European countries was studied, road maps and draft normative documents were prepared. In addition, the representatives of the ministry participated in the conference on International Arbitration and Mediation in Minsk in 2018, jointly organized by the Ministry of Foreign Affairs of the Republic of Belarus and the UN Commission on International Trade Law (UNCITRAL)
Restorative justice elements in juvenile and criminal law
It should be noted that according to the Collegium Decision of 30.12.2021 on “International Cooperation” of the Ministry of Justice, relevant measures have been taken to implement the Venice Declaration adopted at the conference of European Ministers of Justice. Based on these tasks, a number of important works on restorative justice are cariied out, both representatives of judicial authorities and representatives of civil society actively participate in international events and forums.
And restorative justice demonstrates its effectiveness in eliminating the root causes and finding solutions to many modern social problems. This system pursues the mission of building social relationships, restoring these relationships, creating mutual understanding between antagonistic individuals or groups, and fostering personal responsibility to respect the feelings, needs, and values of others. This mechanism restores security and peace by bringing people together to address injustice, repair harm, and reduce suffering through dialogue and agreement. Restorative processes lead to social integration, and are a relevant and effective mechanism in the contexts of justice, security, peaceful living, education, social development, family support, child rights and child welfare, as well as community life.
Therefore, to achieve all these goals, a number of important principles of restorative justice have been formed:
1) Crime is a violation of relations between people. Crime harms victims, communities and offenders and creates obligations to make things right. Restoration means removing the damage and re-establishing relationships in society.
2) Victims and the community play a central role in the restorative justice process. All parties must be part of the response to crime – the victim (if he or she chooses to participate), the community, and the offender.
3) The main goal of the restorative justice process is to help victims and address needs. The position of the victim is key to determining how to recover from the crime.
4) The secondary goal of restorative justice is to restore society as much as possible. The offender is personally responsible to the victims and society for the wrongs he has committed. Parties involved in the restorative justice process share responsibility for redressing harm through a partnership for action. Society is responsible for the well-being of all its members, including both victims and offenders.
5) All people have dignity. Victim and offender are both able to move forward with respect and dignity and are reintegrated into the wider community as much as possible.
Although the national legislation does not establish the institution of restorative justice, a number of things have been done in this regard in our country, including trainings at the Academy of Justice, international standards in this field, prevention of law violations committed by minors, restorative justice, diversion services, in relation to children special attention was paid to the features of criminal prosecution and judicial review and other topics, joint projects were implemented with the participation of international organizations.
In addition, according to the decision of the Supreme Court of the Republic of Azerbaijan “On judicial practice in cases involving crimes of minors” dated June 30, 2008, the courts have decided to release minors from criminal liability in connection with articles 72 (Exemption from criminal responsibility due to sincere remorse) and 73 ( The issue of the possibility of exemption from criminal responsibility on the grounds provided for in the articles ‘Reconciliation with the victims” should not be overlooked. Voluntary admission of guilt, sincere remorse, and reconciliation with the victim of a minor who has committed a crime that does not cause a great public danger for the first time are the elements of restorative justice existing in the practice of our country.
In this field, the United Nations Children’s Fund (UNICEF) is working effectively, and this organization is doing important work in our country related to the promotion of restorative justive justice.
In order to support reforms in the field of juvenile justice, the institution’s report containing evaluations and recommendations for submitting international standards for probation and mediation services to the Ministry of Justice and other interested parties, made proposals regarding the application of mediation, which is part of the concept of restorative justice, and its development in our country. focused on a number of important issues that include elements of restorative justice and reform, especially in the field of juvenile justice.
It is reported that the Ministry of Justice has been cooperating with UNICEF in the field of juvenile justice development in our country since 2008, joint action plans have been signed and implemented in this field, and a number of measures have been taken in connection with the development of child-oriented justice, including the participation of foreign and local experts. Trainings were organized for judges and probationers, special rooms and courtrooms equipped with technical equipment for questioning minor victims and witnesses were prepared and put into use in a number of serious crimes courts of the republic.
Also, in cooperation with the Ministry of Justice, the Representation of UNICEF in Azerbaijan and the Public Union of Hopeful Future Social Initiatives, the effective organization of leisure time and the improvement of the social and psychological conditions of minors who are registered with the Probation Service, as well as detained in the relevant institutions of the Penitentiary Service, as well as to prevent children from entering the penal institution in Azerbaijan. In order to expand the socio-psychological activity, work is being done in the direction of rehabilitation and reintegration of children who have committed crimes by organizing special trainings. In addition, recently, joint cases containing certain elements of restorative justice have been started, studying the criminal cases committed by juvenile prisoners who are registered with the Probation Service and kept in the Correctional Institution of the Penitentiary Service, as well as in remand detention centers, and legal assistance is provided to them by professional lawyers, and reconciliation with the victims is achieved, compensation of damages and other necessary measures are taken.
Another important approach in the field of children’s rights is diversion, although it is not provided for in our legislation, for a long time now, with the support of the Ministry of Internal Affairs and UNICEF’s Representation in Azerbaijan, the Reliable Future Social Initiatives Public Union has been identifying juveniles who are prone to crime in Azerbaijan and their diversion is carried out. The concept of diversion is fully consistent with the UN Convention on the Rights of the Child (CRC) and other international standards, as it aims to keep children out of the formal justice system for as long as possible. Primarily pretrial diversion services include proactive interventions to address the root causes of criminal behavior. Deterrence consists of the development of special procedures and programs designed to protect children in conflict with the law from the negative consequences of official investigation, under the condition of protecting their human rights by removing them from formal legal procedures. Its components include social assessment and planning, provision of services based on children’s needs, analysis and evaluation of results.
Thus, our activities on the application of restorative justice and the development of diversionary activities, the study of international experience and the legislation of foreign countries in this field, as well as our effective cooperation with the Forum are being continued.
Ministry of Justice of the Republic of Azerbaijan
Deputy chief of the Inspectorate for supervision of execution of punishments.
Member of the European Restorative Justice Forum (EFRJ).