Allocation of a prisoner 300 km away from Baku to serve a sentence: What is the source of this problem?

Analysis

According to reports from September 25, journalists imprisoned in relation to the “Abzas Media" case and considered political prisoners, the publication's editor-in-chief Sevinj Vagifqizi, and journalists Nargiz Absalamova and Elnara Gasimova, were transferred to the Penitentiary Complex located in the village of Gurumba of Lankaran district.

“Tribunat” has analyzed the legality of the journalists’ relocation to Lankaran Penitentiary Complex.

According to Article 65 of the Code of Execution of Sentences (hereinafter referred to as CES), individuals sentenced to a fixed-term imprisonment shall, as a rule, serve their sentences in penitentiaries located close to their place of residence. Exceptions to this default rule are possible in the following cases:

1. Due to health conditions;
2. To ensure personal safety;
3. In other exceptional circumstances.

In these cases, the convict may be sent to prisons located in another area for serving the sentence.

Another regulation concerns the transfer of prisoners to appropriate penal institutions, regardless of their place of residence, and occurs in the following cases:

1. For particularly dangerous recidivism of crimes;
2. For individuals sentenced to life imprisonment;
3. For individuals sentenced to serve part of their sentence in prison;
4. For foreigners or stateless individuals to serve their sentence.

According to Article 59 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), which was used in the preparation of the Regulations on the Penitentiary Service of the Ministry of Justice of the Republic of Azerbaijan, prisoners should be placed as close as possible to their homes or places of social rehabilitation. According to Article 17 of the European Prison Rules, prisoners should be sent to penitentiary institutions located near their places of residence or social rehabilitation to serve their sentences. During the transfer, it is necessary to take into account the requirements of continuing criminal prosecution and ensuring security, as well as establishing an appropriate regime for all prisoners. Where possible, the prisoner's opinion should be sought regarding the initial place of serving own sentence and on each subsequent transfer from one penitentiary institution to another.

According to the Commentary on the European Prison Rules, decisions on accommodation should generally be taken in such a way as not to create unnecessary difficulties for prisoners or their families, including those who need contact with the children. Similarly, all prisoners should be kept as close as possible to their home or to the place where they can best be integrated into society, in order to facilitate contact with the outside world.

It should be taken into account that prisoners have a direct interest in decisions concerning their allocation. They should, accordingly, be consulted as far as possible and reasonable requests should be made, although the final decision must necessarily rest with the authorities. Such consultations should take place before prisoners are transferred to penitentiary institutions. However, for the initial allocation of prisoners, either a nearby institution or an institution suitable for meeting the needs of the ongoing criminal proceedings should be selected.

If, in exceptional circumstances, security requirements necessitate to place or accommodate prisoners prior consultation with them, the consultation should take place afterwards. In such cases, there should be a real possibility of overturning the decision if there are good reasons for the placement of prisoners in another facility. Prisoners may request the relevant authorities to allocate or transfer them to a particular prison. They may also use the same procedures to overturn a decision on allocation or transfer.

Domestic legislation and international documents determine the allocation of prisoners, by default, in prisons close to their place of residence. The exceptions to these rules are exhaustive.

The pivotal issue that needs to be discussed in this context is the concept of “place of residence” as stipulated in Article 65.1 of the CES. This concept can be encountered in several cases in domestic legislation. According to the Law “On Registration of Place of Residence and Location”, place of residence means a house, apartment, serviced living space, dormitory, social service institutions for the elderly and persons with disabilities, special educational institutions and other similar places of residence where a fully capable person lives permanently or more often under a lease or rental agreement as the owner, or on other grounds stipulated by the legislation of the Republic of Azerbaijan. In accordance with Code of Criminal Procedure, a place of residence is a place used temporarily or permanently for the residence of one or more individuals, including a house, apartment, summer house, a room in a hotel, sanatorium, boarding house, hostel, rest house, camping, tourist base, directly adjacent to them, verandas, terraces, galleries, balconies, places for common use (other components of them used for recreation, storage of property, or other needs of people), basements and attics of buildings other than apartment buildings, as well as a cabin of a sea vessel or a compartment of a train on a long journey. The Civil Code, on the other hand, defines a place of residence more laconically, the place where a person usually lives is considered a place of residence, and an individual may have several places of residence.

Since the interpretation of the term “place of residence” has caused controversial issues in several cases, the issue has been reflected in the decisions of the Constitutional Court (hereinafter referred to as the CC) in related cases. According to the Decision of the CC dated January 31, 2003, one of the preconditions of the concept of “place of residence” is to create the necessary conditions for the exercise of human and citizen rights and freedoms (social protection, pension, conscription, execution of court decisions, etc.). Based on both this and the decisions dated July 12, 2000 and September 24, 2020, the CC concluded that the formalistic approach to the “place of residence” is not in compliance with the relevant legislation and that the practice of restricting citizens' rights based on this approach is illegal. The above-mentioned Law states that the requirement for a citizen to register in accordance with the established procedure based on his place of residence cannot be considered as a basis for restricting his right to freely choose another place of residence.

The journalists of “Abzas Media” allocated to Lankaran have lived and worked in Baku for a long time, the office of the publication in question is located in the capital, so their place of residence should be considered Baku. The fact that the journalists have a legal registration address in another city or region is irrelevant, because the penitentiary legislation implies the concept of “place of residence”.

It is also observed in the anonymized verdict of the Baku Grave Crimes Court on the “Abzas Media” case posted on the electronic court system that even though the journalists’ different legal registration addresses are listed, the cities of Baku, Khirdalan, and Sumgayit are listed as their places of residence. In any case, the Penitentiary Service has not provided any explanation or justification to the media or the journalists’ relatives as to why the three journalists were allocated to the Lankaran Penitentiary Complex.

State authorities have not expressed any sober concerns about the health and personal safety of the journalists, their lawyers, or the public. As for “other exceptional circumstances,” there is no explanation or commentary in the CES or other local penitentiary legislation on what circumstances are considered as such.

The exceptional circumstances that regulate the allocation to a penitentiary institution regardless of the place of residence of the convict (Article 65.2 of the CES ) is not applicable to journalists.

A matter of inconsistency between international standards and domestic legislation is the lack of consultation on the placement of prisoners. The European Penitentiary Rules and the Nelson Mandela Rules, which inspired domestic penitentiary legislation, state that consultations should be held before and after the accommodation of prisoners. Nonetheless, there is no provision in domestic legislation that reflects such a procedure.

So what rights of the employees of the investigative publication are violated in the current situation? In accordance with the approach of the European Court of Human Rights (hereinafter, the ECtHR or the Court), which has considered applications on similar issues, in such cases it may constitute a violation of Article 8 of the European Convention on Human Rights (Right to respect for private and family life).

The ECtHR has clarified this issue in its judgments against the Russian Federation, which are similar to Azerbaijan in terms of penitentiary legislation. In Khoroshenko v. Russia, it was stated that the basis of the right to respect for the private and family life of prisoners is the creation by the state authorities of conditions and opportunities to maintain contact with their close relatives (§106). According to the Court’s case-law, the allocation of a prisoner in a specific prison may give rise to a violation of Article 8 if it affects their private and family life beyond the “normal” difficulties and restrictions inherent in the concept of imprisonment (Khodorkovsky and Lebedev v. Russia, §837).

In Polyakova and Others v. Russia and Voynov v. Russia, the Court found in similar circumstances that the Government had violated the applicants’ rights under Article 8. In this respect, it is vital to note the Court’s analysis in the Polyakova. As previously indicated, in Russia, similar to Azerbaijan, the place of residence of the prisoner is taken into account in the execution of a sentence of imprisonment for a fixed term. As in Azerbaijan, in “other exceptional circumstances” the relevant authorities in Russia may accommodate the prisoner in a prison institution not close to his place of residence.

The Court states that such a wide discretion does not provide a guarantee against arbitrary restrictions on the prisoners’ rights. The Government’s failure to consult the prisoner or his relatives, formally or informally, to justify the decision to place in a prison, and to take into account the prisoner’s personal situation, violates the “quality of law” standard and renders the restrictions imposed unlawful (§§99-107).

The distance between Baku and Lankaran is approximately 236 kilometres. In Khodorkovsky and Lebedev, the Court also took into account the geographical situation and transport realities of the country when concluding that there had been a breach of Article 8 (§838). The territory of the Russian Federation is approximately 436 times larger than that of the Republic of Azerbaijan. This creates some scope for a comparative difference in distances in the present case. Per Baku Bus Station, the journey from Baku to Lankaran takes 3 hours and 20 minutes. These circumstances affect the personal and family life of the journalists’ relatives beyond the “normal” difficulties and restrictions.

“Tribunat” concludes that the allocation of “Abzas Media” journalists in the Lankaran Penitentiary Complex violates their right to respect for private and family life, as protected by domestic and international legislation. Such long-distance accommodation is not justified by domestic penitentiary legislation and is in contradiction with international recommendations. It can be assumed that the reason for the long-distance relocation is that the Penitentiary Service misplaced the concept of “place of residence” with the legal registration address of journalists and, as a result, came to the wrong conclusion. Even though the domestic legislation broadly defines the concept of “place of residence”, it is opaque from the experience of the Constitutional Court that in some cases the formalistic approach to this concept and its identification with the address of registration leads to the violation of the rights and interests of citizens. As observed from the practice of the ECtHR, the lack of guarantees in domestic legislation preventing the application of arbitrary restrictions in similar cases further increases the scale of the violation.