The abolition of the death penalty and its alternative sanction in South Caucasus: Armenia, Azerbaijan and Georgia www.penalreform.org The abolition of the death penalty and its alternative sanction in South Caucasus: Armenia, Azerbaijan and Georgia 1 Contents Acknowledgments 2 Acronyms 3 Introduction 4 Research methodology 5 Executive summary 6 Country-by-country analysis Republic of Armenia 8 Republic of Azerbaijan 21 Republic of Georgia 36 Comparison of the application and implementation of the death penalty and its alternative sanction in the South Caucasus region 48 Annex I: Recommendations of the national conference: life imprisonment in Armenia (20 May 2011) 55 Annex II: Recommendations of the national conference: life imprisonment in Azerbaijan (5 July 2011) 56 Annex III: Recommendations of the national conference: life imprisonment in Georgia (17 June 2011) 57 Annex IV: Recommendations of the South Caucasus regional conference on life imprisonment (15 July 2011) 58 2 Penal Reform International Acknowledgements This research paper has been created by Penal Reform International. It was written by Maia Khasia and Tsira Chanturia, and edited by Jacqueline Macalesher. This research report is based on national research papers prepared by Prison Monitoring Group (Armenia), Public Committee of Monitoring over Penitentiaries of the Ministry of Justice (Azerbaijan), and Maia Khasia (Georgia). This research paper has been produced in conjunction with Penal Reform International’s project “Progressive Abolition of the Death Penalty and Alternatives that Respect International Human Rights Standards”, with the financial assistance of the European Union under the European Instrument for Democracy and Human Rights (EIDHR). The contents of this document are the sole responsibility of Penal Reform International and can in no circumstances be regarded as reflecting the position of the European Union. The abolition of the death penalty and its alternative sanction in South Caucasus: Armenia, Azerbaijan and Georgia 3 Acronyms CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CJR Criminal Justice Reform Council CPC Criminal Procedure Code CPT European Committee for the Prevention of Torture ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms EIDHR European Instrument for Democracy and Human Rights EU European Union GA General Assembly HCJ High Council of Justice ICCPR International Covenant on Civil and Political Rights MCLA Ministry of Corrections and Legal Assistance of Georgia MP Member of Parliament NGO Non-Governmental Organisation NPM National Preventive Mechanism OPCAT Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment OSCE Organization for Security and Cooperation in Europe PACE Parliamentary Assembly of the Council of Europe PDO Public Defender’s Office PMG Prison Monitoring Group PRI Penal Reform International TB Tuberculosis UK United Kingdom UN United Nations UPR Universal Periodic Review USA United States of America 4 Penal Reform International Introduction The death penalty is the ultimate cruel, inhuman and it in line with international human rights standards degrading punishment. It represents an unacceptable and norms. It is intended as a follow-up report to the denial of human dignity and integrity. It is irrevocable, 2009 PRI report “Life Imprisonment and Conditions of and where criminal justice systems are open to error Serving the Sentence in the South Caucasus”. or discrimination, the death penalty will inevitably be inflicted on the innocent. We hope this research paper will assist advocacy efforts in the region towards the implementation of The challenges within the criminal justice system do alternative sanctions that are humane and respect not end with the institution of a moratorium or with international human rights standards. We also abolition of the death penalty, as the problem of hope this paper will assist researchers, academics, what to do with the most serious offenders remains. members of the international and donor community, Many countries that institute moratoria do not create and all other stakeholders involved in penal reform humane conditions for prisoners held indefinitely on processes including parliamentarians, prison officials ‘death row’, or substitute alternative sanctions that and members of the judiciary. amount to torture or cruel, inhuman or degrading punishment, such as life imprisonment without the This report has been published in English, Georgian possibility of parole, solitary confinement for long and and Russian. indeterminate periods of time, and inadequate basic physical or medical provisions. Punitive conditions of March 2012 detention and less favourable treatment are prevalent for reprieved death row prisoners. This research paper focuses on the historical application of the death penalty, and the processes of its eventual abolition in the South Caucasus region, and subsequently the implementation of its alternative sanction, life imprisonment. Its aim is to provide up-to-date information about the laws and practices relating to how the death penalty was applied prior to abolition, and how life imprisonment is now being implemented in Armenia, Azerbaijan and Georgia. This paper takes a country-by-country approach and focuses on: DD The legal framework of the death penalty and its alternative sanction (life imprisonment). DD Implementation of the sentence, including an analysis of fair trial standards. DD Statistical information on the application of the death penalty/life imprisonment. DD Application of the sentence including an analysis of the conditions of imprisonment. DD Criminal justice reform processes in each country. This paper provides detailed and practical recommendations tailored to each country to bring The abolition of the death penalty and its alternative sanction in South Caucasus: Armenia, Azerbaijan and Georgia 5 Research methodology Access to information on the historical application results of the research. The recommendations of the of the death penalty and its alternative sanctions national and regional conferences can be found in the is unavailable or inaccurate in many countries. annexes of this report. Statistical information is not always made available by state bodies, and information provided is not always The research was carried out during 2011. timely, or lacks clarity. As such, although Penal Reform International (PRI) aimed to undertake an in-depth analysis of legal, policy and practice areas within this research paper, however, access to some information was sometimes beyond the abilities of the researchers and therefore may be incomplete. A research questionnaire was designed in late 2010 to assist researchers in identifying relevant information. The research questionnaire was designed by PRI in partnership with Sandra Babcock (Northwestern University, USA) and Dirk van Zyl Smit (Nottingham University, UK). The research was undertaken by PRI in all three countries and included field visits and desk based research. The researchers looked at and analysed various primary sources, including legislation and case law. They interviewed relevant government officials (within various departments of the Ministries of the Interior, the Ministries of Justice, Constitutional Councils, and the Penitentiary Services of all three countries). Prison officials including heads of the penitentiary institutions where life-sentenced prisoners are incarcerated, national human rights commissions/ ombudsmen, lawyers and judges, journalists, and members of civil society/human rights defenders were also interviewed. Where access was made available to researchers, interviews were also carried out with life-sentenced prisoners. Research also included an analysis of reports by people or organisations with first-hand experience, such as inter-governmental organisations, including UN treaty bodies and special procedures, as well as reports by international NGOs, such as Human Rights Watch, Amnesty International, Death Penalty Worldwide and the World Coalition against the Death Penalty. Reports and articles by journalists and academics were also analysed. National and regional conferences were also held with the participation of the representatives of international and local organisations and governmental organisations in order to review and discuss the 6 Penal Reform International Executive summary Armenia, Azerbaijan and Georgia all took very and 91 in Georgia. Its indeterminate length and overly positive, and seemingly quick, steps towards punitive nature1 raise a number of legal and practical abolition in the post-Soviet Union era following concerns. independence in 1991. Georgia abolished the death penalty in 1997, Azerbaijan in 1998, and Armenia in Across the region, people are sentenced to life 2003. In fact, very few executions were known to imprisonment after proceedings which fail to meet have taken place following independence in all three international standards for a fair trial, as guaranteed countries. Armenia carried out no executions after under Article 14 of the ICCPR, to which all three independence; the last execution took place in 1988. countries are state parties. Although the right to a fair The last execution in Azerbaijan took place in 1993 trial is not impeded by a lack of legal guarantees, it and in Georgia in 1995. is impeded in practice. The lack of an independent judiciary is compounded by poor and ineffective legal All three countries have made international assistance for indigent defendants, resulting in low commitments towards abolition in law through the acquittal rates and there are concerns over sentences ratification of international and regional treaties. All being applied indiscriminately and arbitrarily. three have ratified Protocol No. 6 to the European Convention for the Protection of Human Rights and The conditions and treatment of life-sentenced Fundamental Freedoms (ECHR) (on the elimination of prisoners are reported to be well below international the death penalty), and Georgia has ratified Protocol standards. In the South Caucasus region, where No. 13 to the ECHR (concerning abolition of the death criminal justice institutions are in a process of penalty under all circumstances). Both Azerbaijan and continuous development and the resources are Georgia have ratified the Second Optional Protocol far from comparable with European countries, the to the International Covenant on Civil and Political difficulties associated with prison conditions and Rights (aiming at the abolition of the death penalty). rights for lifers are serious ones. Accordingly, the South Caucasus is now an Although the situation differs in Armenia, Azerbaijan execution-free region and can be held-up as an and Georgia there are also several similarities. Prison example of best practice for other regions on the conditions are highly restrictive and often jeopardise cusp of abolition. However, what has replaced the the physical and mental health of inmates. This is death penalty is in some regards just as inhumane as particularly damaging given the long-term nature the death penalty was prior to its abolition. of their sentences and the limited or non-existent opportunities to be considered for early release. Following abolition, all three countries adopted a new punishment: life imprisonment. Armenia provided Lifers in all three countries are incarcerated in cells that life imprisonment meant a minimum tariff of 20 for an average of 23 hours a day. There are virtually years, Azerbaijan and Georgia a minimum tariff of 25 no out-of-cell activities, and minimal in-cell activities. years imprisonment. None of the three countries have There is a lack of access to education, employment, a maximum tariff, meaning that there is the potential or any other rehabilitative programmes, and most for those sentenced to life imprisonment to never be lifers are only entitled to a small number of family released. visits per year, often under very restrictive conditions. Life-sentenced prisoners are often separated from the Although life imprisonment is a relatively new rest of the prison population and kept under a much punishment in the region, its use is growing: there harsher and stricter regime, which is unrelated to their are currently 99 lifers in Armenia, 244 in Azerbaijan, risk to prison security, but based on their legal status 1 While the purpose of sentencing is ultimately punitive, the nature of the sentence should be proportionate to the seriousness of the offence and individualised to the specificities of the crime, including the circumstances in which it was committed. Sentences should not, therefore, be used to serve wider political purposes or purely to punish the offender. Effectively locking away criminals for life and creating a discriminatory and arbitrary regime purely because of the type of sentence a prisoner is serving fails to tackle the structural roots of crime and violence. Prisoners serving life or long-term imprisonment often experience differential treatment and worse conditions of detention compared to other categories of prisoner. Examples include separation from the rest of the prison population, inadequate living facilities, excessive use of handcuffing, prohibition of communication with other prisoners and/or their families, inadequate health facilities, extended use of solitary confinement and limited visit entitlements. Punitive conditions of detention and less favourable treatment are known to be particularly prevalent for reprieved death row prisoners. Sentences should reflect international human rights standards and norms, and provide the offender with a meaningful opportunity for rehabilitation and reintegration back into society, thereby leading to law-abiding and self-supporting lives after their release. The abolition of the death penalty and its alternative sanction in South Caucasus: Armenia, Azerbaijan and Georgia 7 as a lifer. The actual living and hygiene conditions of the prison cells also raise serious concerns regarding the health of such prisoners. Financial and other resources continue to be under-committed, meaning that substantial improvements to the condition and treatment of lifers are not going to take place in the immediate future. Despite these difficulties, there are several positive developments and efforts made by state structures, civil society and the international community. These include improvements to legislation, improved qualification of prison staff, and vocational training of prison personnel. However, while these efforts are commendable, all three countries need to implement additional reforms at the legislative, policy and practice level to ensure that international human rights standards are met. As such, we trust that this report will assist governments in the region to implement a more holistic approach to penal reform which focuses on reformation and the respect for human dignity, rather than a punitive approach to punishment. 8 Penal Reform International Republic of Armenia I. Basic country information of punishment. Subsequently, Armenia declared an official moratorium in 2001. Geographical region: Armenia is a landlocked country On 18 April 2003, the new Criminal Code was located between Georgia to the north, Azerbaijan to adopted, replacing the death penalty with the the east, Iran to the south and Turkey to the west. The sentence of life imprisonment. It was envisaged capital is Yerevan. under the new Criminal Code that this penalty could only be imposed for particularly grave crimes. The Type of government: According to Article 1 of the 2003 Criminal Code also included the provision, in Constitution, the Republic of Armenia is “a sovereign, Article 16(4), that a person accused of committing democratic, social state governed by rule of law”. a crime cannot be extradited to another country, if the legislation in that country envisages the death Language: The state language is Armenian. penalty for the given crime, without Armenia receiving assurances from that country that the death penalty Population: Armenia has a population of will not be executed. approximately 3.2 million people. However, the Law on the Application of the Criminal Religion: The predominant religion in Armenia is Code retained the death penalty for murder with Christianity. aggravating circumstances, terrorist acts, and rape of female minors if these crimes were committed before the entry into force of the new Criminal Code on 1 II. Overview of the status of the August 2003. death penalty in Armenia The Secretary-General of the Council of Europe Following independence from the Soviet Union described this development as “partial abolition”, and in 1991, Armenia retained the death penalty in its called for complete abolition. 1961 Criminal Code for 18 peace-time offences On 9 September 2003, the National Assembly of and 16 war-time offences. Some of the offences did Armenia ratified Protocol No. 6 on the Elimination not involve the use of violence. However, Armenia of the Death Penalty to the Council of Europe very quickly took positive legal and political steps Convention for the Protection of Human Rights to reduce the application of the death penalty in and Fundamental Freedoms (ECHR), and it entered practice. into force on 1 October 2003. Armenia also signed The first elected president of Armenia, President Protocol No. 13 (concerning abolition of the death Ter-Petrossian, was personally opposed to the death penalty under all circumstances) in 2006; however penalty and refused to sign any death warrants. As ratification has not yet taken place. such, the last execution known to have taken place Robert Kocharyan, the second President of Armenia, was prior to independence, in 1988. commuted the sentences of all 42 persons on death In May 1992, two offences were abolished from the row to a sentence of life imprisonment on 1 August Criminal Code (speculation and large-scale theft of 2003. On 27 January 2004, the Parliamentary Assembly state or social property), and in December 1995 an of the Council of Europe expressed concern over additional offence was abolished (desertion). This the commutation process and urged the Armenian left 31 offences for which the death penalty could authorities to examine each of the 42 cases on an be imposed, which was still excessive, especially individual basis. No steps were taken in this regard. considering the courts continued to hand down death In 2005, the Armenian Constitution was finally sentences. amended to abolish the death penalty. Article 15 now In 2001, Armenia became a member of the Council prescribes: of Europe, thereby undertaking a number of human “Everyone shall have a right to life. No one shall rights obligations. One of these obligations was the be condemned to the death penalty or executed.” abolition of the death penalty as an exclusive form The abolition of the death penalty and its alternative sanction in South Caucasus: Armenia, Azerbaijan and Georgia 9 III. Legal framework: application IV. Legal framework: the death of international and regional penalty in Armenia human rights standards in Armenia Death penalty applicable crimes Prior to abolition, the following offences carried a According to Article 6 of the Constitution, possible death sentence under the old Criminal Code international treaties shall enter into legal force in of the Republic of Armenia (first adopted on 7 March Armenia only after being ratified. They shall form 1961, entered into force on 1 July 1961): a constituent part of the Armenian legal system. However the treaty must comply with the Constitution 1. Treason: Article 59. for it to be ratified. Once ratified, it takes precedence over national legislation. 2. Espionage: Article 60. 3. Terrorist act: Article 61. Armenia is party to most international human rights instruments relevant to the death penalty. 4. Terrorist act against a representative of a foreign state: Article 62. Armenia ratified the International Covenant on Civil and Political Rights (ICCPR) and its First Optional 5. Sabotage: Article 63. Protocol on 23 June 1993. However Armenia is not a signatory to the Second Optional Protocol to the 6. Organisational activity directed towards the ICCPR (aiming at the abolition of the death penalty). commissioning of especially dangerous crimes Armenia ratified the Convention against Torture (CAT) against the state: Article 67. on 13 September 1993, the Optional Protocol to CAT 7. Especially dangerous crimes against another (OPCAT) on 14 September 2006, and the Convention workers’ state: Article 68. on the Rights of the Child on 23 June 1993. It is not a state party to the Rome Statute of the International 8. Banditry: Article 72. Criminal Court. 9. Activities causing disruption to the work of In 2001, Armenia became a member of the Council corrective labour institutions: Article 72-1. of Europe. It ratified Protocol No. 6 to the ECHR on 10. Evasion of mobilisation: Article 76. 1 November 2003, and signed Protocol No. 13 to the ECHR on 19 May 2006, but has not yet ratified it. 11. Making or passing counterfeit money or securities: Article 82. In 2007, Armenia co-sponsored and voted in favour of the United Nations (UN) General Assembly (GA) 12. Speculation: Article 83 (abolished in May 1992). resolution “On a moratorium on the death penalty” which was adopted under resolution 62/149. The 13. Large scale theft of state or social property: moratorium resolution was reaffirmed in 2008 in UN Article 90-1 (abolished in May 1992). GA resolution 63/168 and again in 2010 in UN GA 14. Premeditated murder under aggravated resolution 65/206. Armenia repeated its positive co- circumstances: Article 99. sponsoring and voting pattern in each year. 15. Aggravated rape: Article 112. 16. Hijacking: Article 180-1. 17. Bribe-taking: Article 185. 18. Infringing the life of a policeman or people’s guard: Article 209-1.