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Eldar Zeynalov

Eldar Zeynalov

Until society turns face to prisons, they will not be reformed, Eldar Zeynalov
Interview 


2017 July 22 ( Saturday )  10:10:48
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Русский Azərbaycan
Turan IA

Turan News Agency appealed to human rights lawye Eldar Zeynalov, specializing in human rights, with a request to answer questions about the implementation of decrees aimed at the humanization of punishment in Azerbaijan, in particular, the presidential decree of February 10, 2017 "On streamlining activities in the penitentiary sphere, humanizing penal policies, and Expansion of the use of alternative types of punishment and coercive procedural measures that are not related to isolation from society."

- How do you assess the recent official documents on modernization, humanization of the policy of punishment? Why are these long-overdue decisions adopted in Azerbaijan so late? Why are not the new humane punishment norms applied widely for all? Have they begun to be implemented only for criminals close to the authorities?

- It cannot be said that this is the first document of this kind or that the idea of ​​humanizing the policy of punishments has arisen only now. For example, the Law on the Social Rehabilitation of Prisoners, which provides for the establishment of a probation service, was adopted on May 5, 2007. A decision of the Plenum of the Supreme Court to limit the use of arrests and take into account the practice of the European Court of Human Rights was adopted in early 2006. Periodically the same issues have been raised by the European Committee for the Prevention of Torture since 2004.

So we can talk about the deaf resistance to reforms on the part of a wide range of officials who have their own selfish interest in preserving the existing state of things. In the West, prisoners are treated as dependents of the state, as a burden on the budget. In the USSR prisoners were regarded as cheap working cattle. In independent Azerbaijan, labor in prisons was virtually abandoned, although, for example, the Article 4 of the European Convention on Human Rights excludes the term "forced labor" to be performed by a person in custody. Now the convict is being driven into the enclosed space and is holding the sentence scheduled for the verdict. How, while idling, being kept for years alongside incorrigible criminals, can a person improve? And for a stolen mobile phone a person is kept on full pay, spending on him about 6,000 manats a year from the pocket of quite law-abiding citizens.

At liberty a person can satisfy every need himself. And in conclusion, it encounters dozens of prohibitions, which can be overcome for bribes. It is clear that the prisoners are beginning to look like dairy cattle. As a result, the authorities have to resort to unloading of prisons with the help of amnesties, pardons. Inside the Ministry of Justice, a Parole Board was even created, which facilitates prisoners access to this procedure, which they previously had only through the administration.

Let us take the liberated prisoners. They are pushed out onto the street even without an identity card, with a certificate of release, on the basis of which you cannot get a job, or even buy a mobile phone. It is necessary to restore documents, solve the problem with housing, work, etc., not to mention the fact that you need to re-enter the society. And everywhere he encounters officials who decide (more precisely, they must solve) all these problems. These problems are solved much more smoothly if paid. And it does not matter to the bribe-taker whether the former prisoner will earn this money, take it from his family's pocket or steal it.

But if there is a probation service, many problems will be solved with its help, as they are solved in the ASAN service. But at the same time, bribe-takers will be deeply unhappy at once in several ministries.

There is another reason for skidding reforms in this direction. This is a lack of public support for reforms. "The thief should sit in prison," especially if he stole from my personal pocket. "Instead of building prisons with decent conditions, first provide refugees, pensioners, kindergartens, schools, villages, repair roads," they say in society.

Even recently I read somewhere that "political prisoner N. as punishment for this and that is additionally tortured by conditions of detention in the colony such and such". Does a bad ecology concern only this prisoner? What about 800-900 others, not political prisoners in the same prison - are not they tormented? Why no one rallies on Parapet and does not stand with the placards in Brussels, to close or moved to another place some prisons, speed up the construction of other prisons (for example, women's and children's, with European conditions)?

Until society turns to face prisons, reforming them will proceed at the same leisurely pace.

- Please assess the current situation in the colonies and prisons.

"Most of our jails are inherited from Soviet times." They were built on the basis of their other standards, and now (with few exceptions) do not correspond to European or even modern Azerbaijani standards. This has been openly spoken about for many years.

Except for prisons in Nakhichevan, Sheki and Khalaja, all the jails are located in Baku and its environs. Wherever there are serious crimes courts and appellate courts, there should be investigative detention centers, and they only in Baku, Ganja, Nakhichevan and Sheki. And, for example, in Shirvan there is no such isolator. As a result, relatives go on visits to prisoners from afar, spend a lot of money on it.

In our penitentiary system, there is virtually no meaningful, socially useful work. This means that an average prisoner without family support cannot even earn money on cigarettes. But some also have a civil suit on the verdict (for example, to pay damages to the victims), and without his payment, even with good conduct, the prisoner does not shine with pardon or conditional release.

Educational work was previously based on Soviet ideology. Now this is not, and as a criminal is re-educated, it is unclear. How, for example, to rehabilitate a convicted Wahhabi, if the deputy head of the colony is not educated on religious matters in the educational part, and there are no mullah chaplains in prison mosques?

Educational programs, at best, include education within the secondary school or vocational school. It is difficult to meet higher demands there. Although extramural higher education is not prohibited, there is not a single instruction that describes how to implement it in conditions of a regime facility and lack of access to the Internet and educational networks.

At the same time, in Europe we are in firm "middle peasants". But many countries that are at our or the worst level do not have our resources. We have them, and the government with the parliament could invest more money in prisons, especially since some of the costs (construction of prisons, their redeployment, restoration of industrial production in prisons) are one-time.

Of course, there will always be someone (from those who did not sit in prisons, to whom the mother did not carry the transfer from the other end of the country), who will say that "a good government builds schools and kindergartens, and ours - new prisons." But prisons have always been, and some advise to judge the country by the prisons.

Much depends on public support. I personally have great respect when journalists and public activists who have visited prison leave their defense of only political prisoners after liberation and talk about the problems of all prisoners. But usually they remember prisons only when another blogger gets there ...

- Please clarify the perspective of solving the problem of the life

- The prisoners sentenced to life imprisonment have a lot of problems, but you probably mean the possibility of release for such convicts.

In September 2007, the then Commissioner for Human Rights of the Council of Europe, Mr. Thomas Hammarberg, visited the lifelong and was deeply impressed by their situation. As a result of the visit, he stated that life imprisonment (LI) "without an honest and serious possibility of release gives rise to human rights concerns. Especially in combination with the conditions of "maximum security", they can constitute inhuman or degrading treatment and therefore violate art. 3 ECHR ". After his visit, much has changed in our legislation.

The central issue here is the duration of the so-called "Tariff term", i.e. part of the sentence, which must necessarily be served, before claiming parole (BCP.) We have a "tariff" of 25 years for all criminals and for all types of crimes punishable by the LI.

Now, imagine a man at the age of 64, who was given a LI with a 25-year tariff. Even at large, the average life expectancy is just over 70 years, and here the formal possibility of parole can only appear in 89 years. In this case, it's just a delayed death penalty, in which people are killed not immediately by a shot in the head, but by slow prison conditions. Among the people for life, several people have died at the age of over 70, and have not lived to the end of the "tariff period".

I will not say that we have a worse situation in this issue than others. Tariff terms of 20-30 years are very common in Europe. However, there is also Resolution (76) 2 of the Committee of Ministers of the Council of Europe, where it is recommended that the life sentences be reviewed on a regular basis after serving a term of 8-14 years. The resolution seems to be valid so far, but few people reacted to it.

Similarly, very few people in Europe reacted to the fact that before the abolition of the death penalty and the introduction of the LI, the maximum alternative sentences were 15 years in court review and 20 years in pardon. Only Georgia replaced the death row punishments for a period of 20 years, then 15 years. The Supreme Court of Russia at the repatriation of the former suicide bomber I.Kryzhanovsky considered that once the death penalty is not applied there, and the maximum term in 1992 was 15 years, then the LI should be replaced for 15 years. In Uzbekistan, after the abolition of the death penalty, the verdicts and parts of the suicide bombers were given to the LI, and to another 25 years.

To date, the ECHR's position, expressed in several decisions against Azerbaijan, is such that, once the court pronounced a verdict, did not consider it necessary to give an alternative 15 years, and the LI is milder than the death penalty, then the appointment of the former LI mortar, rather than 15 years, is not the appointment of a heavier penalty than existed at the time of the commission of the crime.

Although there were exceptions. Thus, during the existence of the death penalty, Georgiy Geladze was given 15 years, and after the abolition of the death penalty and the introduction of the LI, they were sentenced for life, i.e. they did not soften, they weighed down the punishment. In Azerbaijan, he lost all the courts, but in Georgia the court listened to these arguments and released him.

There are several lifelong prisoners who were shot for banditry, then softened to the LI. But in the current Criminal Code for banditry more than 15 years already do not give, and we have left the PLS, i.e. punished in violation of the law.

There is another point connected with the revision of the upper limit of sanctions for certain crimes. So, for the murder already condemned for a maximum of 20 years or on the FLS. Earlier, as I said, this alternative term was 15 years. It is clear that the judges who gave the PLS did this because they considered 15 years too short. But, if at that time there was an opportunity to give a term of 16-20 years, maybe they would choose this alternative?

In this case, we are dealing with a situation where a change in legislation could mitigate the situation of a convicted person, and therefore such a law can be retroactively applied retroactively. To do this, it is necessary to apply to the court, which pronounced the verdict. Although, of course, this does not guarantee that the verdict will be changed.

In this case, we are dealing with a situation where a change in legislation could mitigate the situation of a convicted person, and therefore such a law can be retroactively applied retroactively. To do this, it is necessary to apply to the court, which pronounced the verdict. Although, of course, this does not guarantee that the verdict will be changed.

- Opposition prisoners report beatings. The Ministry of Justice denies the leadership. What is reality?

- There is nothing surprising for me personally. One of the key rules of the bureaucracy (including ours) is "without bills we're insects". That is, even if a person is beaten up in the sight of thousands of witnesses, but this will not be properly documented, then this event would not be "as it was". If a person was beaten, but he did not officially complain, the beating was "not there." If he complained, but then withdrew his complaint, then the event "was not." If he did not withdraw, but the official check did not fix the traces of the beating, then the events were also "not there."

Of course, not every signal is a fact. But the documenting of cases of using special means, as well as the duty of inquiry in cases of torture, beatings, deaths of prisoners lies on the head of the institution. It is clear that he is an interested person and in the general case will do everything to hush up the matter.

The effectiveness of this tactic of self-defense is confirmed by the fact that 17 years after the introduction of punishment for torture in the Criminal Code, not one (!) case of torture was confirmed. At the same time, the ECtHR and the United Nations have already made several decisions, where they found a violation of the relevant articles 2 (right to life) and 3 (prohibition of torture) of the European Convention on Human Rights. The latest example is the ECtHR judgment in the case of Babayeva against Azerbaijan (on the death of a prisoner after beatings in jail N14.)

In the law, the use of physical force, in principle, is not prohibited. But the use of "special means" is limited only by specific conflict situations (active resistance, rebellion, etc.). It must be documented, the report must be sent to the district prosecutor to verify the appropriateness and proportionality of their application. It is also important that the prisoner has the right to appeal against the use of a baton in court. Violation of any of these points makes the beating illegal.

For those who decided to complain until the end, it is very important to understand the mechanics of complaints in cases where the very fact of the beating is denied. It is necessary not to send 50 telegrams to the head of the state and all-all to the presidential chauffeur inclusive, but to hire a lawyer, because the health and life of a person is more expensive than the money spent. A mother will be allowed to go to prison only on the day of her visit, and the lawyer will not be allowed to leave if he has the right credentials. If you do not let them in, write a complaint to the court about the unlawful actions of the administration. The more fixed illegal actions, the more likely that they cover something illegal. After passing through all instances, complain to the ECHR. There are already precedents.