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Ilham Aliyev's initiative: Bracelets instead of prisons (Our editorial)

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BY EYNULLA FATULLAYEV

Does a person have the right to make a mistake? Apparently, yes, one has, for such is the verdict of the substance of divine justice, and even the conclusion of the unauthorised exponent of divine providence: human court. But unlike the metaphysical court, the human one is more categorical in its form and expression: not every mistake has the right to forgiveness.

Philosophy of the question (almost an essay)

Although the prophetic objection-indignation, invested in the mouth of immortal Chatsky by Griboyedov, who was slain a little later by a blind religious Shiite crowd in the wild medieval Persia: 'And who are the judges?' calls to reflect on the impartiality of the executors of the will of God. A person has the right to make a mistake, but the judge is also a person. After all, the same judges sent Christ to the humiliating execution, and there he instead of water he was brought vinegar with bile from the public restroom of the noble Romans. After all, judges sent to the terrible execution the French Templars, who were burned at the stake. The same judges burned Giordano Bruno for the same act, but saved Galileo's life. He was helped by the high patronage of the ruling powerful Medici family. Do you know where the Italian rulers hid the heretic from the righteous judgment? In the small hidden from the eyes little room of the Florentine church! There he was buried too...

And who are the judges? This question was increasingly thrown on the authorities with the advent of the Enlightenment, which returned mercy and humanism to the hearts after the ominous fires of the wild papal Middle Ages, and free thinking and rationalism to the minds. Suddenly they realised in Europe: there was not even a single beautiful woman left in Spain. All were burned and destroyed in a mind-boggling war, much later named the gloomy name of death: witch-hunting. What can be said, if in England in the nineteenth century small boys were publicly hanged for a stolen loaf of bread!

History teaches only one thing: it teaches nothing! After all, since the Enlightenment, the forerunners of the future world-wide liberal revolution first started talking about the humanisation of criminal punishment.

Already in the eighteenth century, Europe began to prohibit the death penalty, mutilation, cruel torture, began to exempt from punishment adolescents and the insane. But much later, two centuries later, after the end of the first predatory imperialist war for the third world, under the influence of ultra-right and ultra-left radical ideologies that seized entire nations, a state that expresses exclusively the interests of either the ruling class (in the representation of the right) or the guarantor of the inviolability of the dictatorship of one class (in the view of the left: the proletariat, which at the end resulted in a dictatorship not of a class, but of a narrow party bureaucracy) was placed above the rights and freedoms of a citizen. Man again became a cog in a big social machine. The nation was higher than a man! This is what drove humanity to a standstill. This was the first end of history. Humanism was under the rubble of cracked liberal values.

Paradoxically, but the second end of history was due to the victory of the free man over the enslaved nation. The man was above the nation! And the superman in the image of Mandela, Havel, Solzhenitsyn, Martin Luther King, who went to the scaffold for the sake of human freedom was elevated to the face of a new Christ-martyr. A new stage in the revival of humanism has arrived. But liberalism has not stood the test of time. Because a person by nature does not only has the right to make a mistake, he is just doomed to make mistakes. And people making mistakes, and judges making verdicts. The world mocked the 'drummer' Martin Luther. Our whole life is a confrontation between the sufferer Yeshua and the powerful Pilate.

What is an error? And what is a crime? (And now about the legal reform)

Without going into further philosophical reflections on the dialectics of history and value-semantic categories, I draw the readers' attention to an important, and one can say, historically significant event left out of the public eye. By giving reasoning about the ideas of humanism and the principles of humanisation, let us see what happened in our separately taken country.

On February 10, President Ilham Aliyev signed the decree 'On improving the activities in the penitentiary sphere, humanising punitive policies and expanding the use of alternative punishment and procedural coercion not related to isolation from society.' If we briefly outline the essence of this complex legal text, it is about introducing alternative measures of punishment instead of imprisonment.

It is a question of a global and conceptual political and legal reform. After all, immediately after the order, a special government commission was formed from representatives of the Supreme Court, the Prosecutor General's Office, the Ministry of Justice and the Ministry of Internal Affairs. Comprehensively studying the philosophy and history of the issue, historical and international experience, as well as the correlation of the proposed legal reforms with an adequate assessment of the criminal situation in the light of an adequate perception of the minimisation of punishments, a separate draft law with fundamental changes to the Criminal Code was developed within six months.

The bill was presented to the president. And Ilham Aliyev, taking advantage of his right to legislative initiative, sent the draft to parliament.

Step One: Decriminalisation of more than ten corpora delicti

The Azerbaijani government has drawn a dividing line between a mistake and a crime. This is one of the most vulnerable, acute and controversial issues in criminal law. European thinkers and scholars have dedicated hundreds of treatises and studies on the moral and philosophical category of guilt. And since the end of the last century in many progressive countries, there began decriminalisation of actions, in which the authorities do not see a high degree of public danger. And these acts in the civilised world are classified as administrative violations.

As a matter of fact, as early as 1985, the UN called for the adoption of innovations: fines, suspended sentences, forced labour, compensation, as an alternative to imprisonment. And the humanisation of the execution of punishments in countries of Western Europe, especially in the Scandinavian states, has reached such perfection and apogee that prisons began to resemble comfortable four-star hotels with observance of all natural and vital rights.

In Sweden, after the European Court's precedent, drug addicts were even allowed to take drugs in prison. The prison itself became the embodiment of a conditional punishment. People transgressing law has ceased to languish in places of estrangement from society. The line has worn off. And in some European countries there was introduced a norm of fragmentary imprisonment: staying in prisons on weekdays, leaving the right to social reunification at the end of the week (or vice versa). The prison has lost its desired embodiment of fear and bodily agony. Here's a fresh example: terrorist Breivik got the right to hunt and to the Internet in a Norwegian prison!

Norwegian prison

For a Westerner, as an individual of the third millennium, punishment by the dollar or manat presents a much greater danger than the threat of temporary isolation.

It seems that Azerbaijan has come to realise the new picture of a new world displaced between the real and virtual worlds. That's why the decision was made to decriminalise as many as ten corpora delicti!

They also reviewed the amount of theft, entailing criminal responsibility: from one hundred to 500 manats.

Step Two: Electronic control instead of jail

In Azerbaijan, a new form of punishment was introduced. It is a question of partial deprivation of freedom or restriction of freedom, the maintenance of the condemned under supervision in a place of residing without isolation from the society.

As a result of the conducted studies, the commission concluded that if for the 60 per cent of the penalties provided in the Criminal Code deprivation of liberty is the only and without alternative punishment, 40 per cent of the acts do not represent a high level of public danger. The absence of alternative types of punishment led to a non-rational increase in sentences for imprisonment.

The application of a new type of punishment will cover 140 sanctions of the Criminal Code, and another 80 sanctions will envisage fines and alternative punishments.

Persons sentenced to restraint of freedom will wear peculiar electronic bracelets, and their movements will be controlled by the authorities through information and communication technologies.

The practice of electronic control has been actively introduced in Western countries over the past 30 years, and as the experience of the European countries confirms: about 91 per cent of those who are under electronic control do not violate the rules of serving punishment. And 94 per cent of those released from electronic control do not commit repeat crimes.

According to the bill, electronic bracelets will also be applied to conditionally convicted persons.

Step Three: Reconciliation instead of punishment

Humanisation of criminal law in a civilised world is a recognition of the right for a person to avoid an official criminal justice system. The traditional punitive policy is yesterday, because such a form of just retribution, according to Western jurists, does not restore broken relations in the social community. Western jurisprudence has developed in this regard a new teaching: mediation concept. It is about the active role of the victim in the criminal case.

This innovation provides for the individualisation of punishment. For example, often the complainant, satisfied with compensation for material damage, refused his claims, but since the Criminal Code provided for the punishment of the perpetrator, the person who committed the unlawful act was deprived of his/her liberty. Legal reform is improving the institution of reconciliation between the victim and the perpetrator. For 20 crimes, it is possible to be released from criminal liability on condition of reconciliation with the victim and compensation for the damage caused.

Step Four: From now on drug addicts are not criminals

For a long time, forensic study of the individual based on the determination of the mechanism of crime encounters an age-old dilemma: who is a drug addict, a criminal or a victim?

Drug addict

Of course, the question is controversial. However, the Western interpretation of the humanisation of criminal justice still recognises in drug addicts, as well as in people suffering from alcoholism, victims affected by pathological mental illness. If alcoholics were arrested in Scandinavia in the 1970s, then today almost in all of Western Europe drug addicts are exempted from criminal liability. And in the United States, drug addicts are only attracted to forced labour. True, in China they are treated in camps with electric shockers, but this form of punishment only creates problems for the reputation of the state. Addicts multiply, and the country receives reputational costs.

Azerbaijan decided to use the European experience. According to the bill, the Criminal Code will change the attitude towards persons who use and store drugs. Drug addicts will be sent not in jail, but in the ward for compulsory treatment. However, unlike Western countries, Azerbaijan will provide only one chance for healing: an addict has only one opportunity to avoid criminal liability. And those who avoid compulsory treatment will be held criminally liable in the same manner.

Step Five: De facto economic amnesty

The liberalisation of the Criminal Code in terms of economic crimes is truly a revolutionary step aimed at stimulating the entrepreneurial activity of the society. A good idea, which will certainly lead to a surge in business activity amid calls for the revival of non-oil entrepreneurship. Most of the prisoners in the regions are serving their sentence on the so-called 'national article of the Criminal Code' (as it is called by the convicts themselves), Article 178. Of course, we are talking about so-called fraud, which for some reason presupposes 'economic crimes' too. Almost all 'economic crimes' are cited under this article. Although in most cases, you can get by with tax and administrative responsibility: why apply a criminal sanction?

On the other hand, what kind of danger do those who committed economic crimeses represent for the society? Tiny! So why do courts constantly select a measure of punishment in the form of arrest sending these persons to jail?

Moreover, is it not better to obtain compensation for damage and fine from the person who committed the economic crime, because these people do not pose any threat to society?

This goal is pursued by a new legal reform: for committing a number of crimes, persons who have reimbursed material damage will be exempted from criminal liability. It is enough just to compensate for the damage and to pay the required amount to the state budget, equal to the damgae or twice the damage for some crimes.

My Universities

An evil fate once got me into jail as well. I will not hide, the four-year stay in the camps, prisons and punishment cells has become yet another great experience and school in the knowledge of the Azerbaijani reality, human studies and the education of the senses. Thousands of fates, and in some cases innocent, warped and sometimes destroyed by a judicial error or the cruel standards of those punishing investigators, who know no compassion, passed before my eyes. Of course, in my path I met venerable criminals, and inveterate recidivists, who chose crime and theft to be the holy craft of their life. But there were also innocent people, far from the criminal mentality, whom the prison and the criminal community turned into men dangerous to the society. Here are just two examples.

Jail birds

A student of the Economic University was driving his own car for a vacation in his native Quba district. And suddenly on the main highway another car failed to control, jumped into the oncoming lane and crashed into another car. The student was forced to press the brakes, and crashed into the front car. In this car there were parents of one general. They died. The student was sentenced to 8 years in prison.

Or another case. One of my cellmates, a 17-year-old boy, stole a chicken from a neighbouring yard. He received 5 years in prison.

Another young man. He stole shoes from the counter for 50 manats. He was condemned to 10 years in prison.

Do you know how many such examples can be stated in this article? What became of these stumbled young men, who certainly deserved an alternative punishment? They became criminals and drug addicts in prisons.

They understood that they made a mistake, a mistake, but not a crime, but no one gave them a second chance to return to life. Their lives were ruined. Those who made the mistake fell into the forge of crime and became criminals.

True, rarely, but the innocent ones also came across. After all, judges also have the right to mistake at the cost of human life. As in the masterpiece film 'The Life of David Gale,' where the University of Texas Professor David Gale was mistakenly sentenced to death. Although one journalist managed to get to the bottom of the truth and learn about the innocence of the professor accused of killing his wife, but the beautiful Kate Winslet does not have time to deliver the material evidence, a video cassette proving the innocence of the convicted. The American Themis sentenced an innocent man to death.

A few days before the verdict, Gale says: 'I know when, but I do not know why.'

So I want to believe that after these reforms, few of the convicts will repeat the unforgettable and tragic death-sentence of the American convict.

P.S. So, Azerbaijan is on the eve of a global legal reform. Many people today are wondering: is it worth it? After all, sometimes stability is more important than democracy or liberalism, and even humanistic values. Soon after the adoption of these amendments, the doors of prisons will open and thousands of criminals will be released. Certainly there will be opponents of this reform. Or maybe it is worth opening a broad public hearing? I propose to the Association of Azerbaijani Lawyers to start a public debate: do we need bracelets instead of prisons? Let the people answer!

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