As one of the countries included in the Roman-Germanic legal system, the most severe punishment in the criminal law system of Azerbaijan is considered to be life imprisonment. According to Article 57 of the Criminal Code of the Republic of Azerbaijan (hereinafter referred to as the CC), this type of punishment is applied “only to particularly serious crimes committed against peace and humanity, war crimes, against the personality, public security and public order and state power.” One of the problematic aspects of the application of life imprisonment is the issue of achieving the purpose of the punishment. According to Article 41 of the CC, one of the main purposes of punishment is the reformation of convicts. Nonetheless, in the context of life imprisonment, a natural question arises: How can prisoners be rewarded for their rehabilitation? In recent years, the European human rights system has been analyzing the answer to this question through the prism of the “right to hope”.
“Tribunat” has analyzed the right to hope in the context of Azerbaijani criminal legislation.
More than 300 life-sentenced prisoners
By data for 2023, 297 inmates in the country are serving life sentences. In 2024, such a punishment was applied to 10 defendants. When calculated together, the number of people currently serving life sentences is 307. One of the reasons why the number of prisoners currently serving life sentences in the country is so high is the abolition of the death penalty in Azerbaijan on February 10, 1998.
What is the “right to hope”?
Then what is the “right to hope”? The European Court of Human Rights (hereinafter referred to as the ECtHR) first used the formula that would form the basis of the right to hope in 2013 in the case of Vinter and Others v. the United Kingdom. In this case, the applicants claimed that their life imprisonment violated Article 3 of the European Convention on Human Rights (hereinafter referred to as the ECHR), namely the prohibition of torture. The ECtHR initially noted that a “grossly disproportionate” punishment would violate the right of the individual (§102). The Court further stated that the corrective function of criminal punishment is intended to promote the rehabilitation of the convicted person through remorse for the act he committed. This function is lost if the convicted has no hope of being released, given his life sentence. In reaching the decision, the Court relied on its own experience, regional and international recommendations on penitentiary regulations and the 1977 judgment of the German Federal Constitutional Court on life imprisonment (§§111-114). In a unanimous opinion, Judge Power-Forde of the Grand Chamber, who considered the case, described the Court’s approach as a “right to hope”. Resultantly, the ECtHR found a violation of Article 3 in this case.
Even though the Court’s position in Vinter and Others was groundbreaking, the “contours” of this right are open to debate. For instance, while the ECtHR found in Matiošaitis and Others v. Lithuania that life imprisonment without the possibility of release was a violation of Article 3 of the ECHR, in Hutchinson v. the United Kingdom it held that there was no violation of Article 3 where the Government had provided minimum guarantees of release in the case of life-sentenced prisoners. This has raised questions among some commentators about the application and relevance of the right to hope.
The right to hope in Azerbaijan: Judicial commutation of sentence and pardon
But what are the legal mechanisms for implementing the “right to hope” in Azerbaijan? Unlike the cases mentioned above, there are clear procedures in Azerbaijani legislation in this regard. In accordance with Article 57.3 of the Criminal Code, the court may replace the sentence of a prisoner sentenced to life imprisonment with imprisonment for a fixed term or conditional release from the sentence. By Article 57.4, imprisonment for a fixed term is understood to mean a term of up to ten years. Upon exercising this authority, the court must take into account the following criteria:
1. The convict must have actually served at least twenty-five years of his sentence;
2. Any intentional crime should not have committed during that period;
3. The court must conclude that it is no longer necessary for the convict to serve a life sentence.
In addition to these three grounds, according to Article 76.4-1 of the Criminal Code, upon granting conditional early release from imprisonment to a life-sentenced convict, the circumstances in which the individual complied with the rules for serving the sentence during the last five years of the sentence are taken into account.
While 2 of the criteria stipulated in Article 57.3 of the Criminal Code (serving 25 years of the sentence and not intentionally committing a new crime during that period) are unambiguous, the third criterion - the court's conclusion that it is no longer necessary for the convict to serve a life sentence - is open to subjective considerations and can be interpreted vaguely.
This seems to be a problematic issue regarding the application of the mechanism in question. Both the Constitutional Court and Plenum of the Supreme Court have adopted decisions regarding the application of life imprisonment. Nonetheless, the judicial instances mentioned in these decisions did not deliberate the important element of “necessity”.
Back in 2011, Prison Reform International shared some of its recommendations on life imprisonment. In addition to improvement of the living conditions of prisoners, these recommendations include the following:
· Conduct a thorough and detailed review of criminal cases where the death penalty has been replaced by life imprisonment;
· Make the parole mechanism more flexible and transparent for prisoners and ensure that all procedures are clearly spelled out in legislation;
· Ensure full access to justice for life-sentenced prisoners;
· Ensure access to prisoners’ personal files for the purpose of drafting petitions and other procedural documents
The lack of a formalized legislation and domestic case-laü regarding the “necessity” criterion can lead to potential violations of prisoners' rights.
Pardoned “lifers”
Another mechanism available to life-sentenced prisoners is pardon. Articles 109 of the Constitution and 82 of the Criminal Code attribute pardon to the exclusive authority of the President. In accordance with Article 82 of the Criminal Code, this punishment may be replaced by imprisonment for a term not exceeding twenty-five years via pardon. According to the Charter “On Pardon” approved by Presidential Decree, prisoners may apply for pardon after serving ten years of such a sentence. Charter stipulates that, the Commission on Pardon Issues under the President, which is responsible for reviewing appeals, must decide on the pardon of a life-sentenced prisoner not by a simple majority, but by a qualified majority (two-thirds), unlike other issues.
Open data resources contain the names of 26 people sentenced to life imprisonment since 1997 in pardon decrees. The list of these prisoners includes the names of Zakir Nasirov, the former chief operations officer of the Ministry of Internal Affairs, former deputy minister who was named in the criminal case of Haji Mammadov, who was accused of kidnapping and multiple murders and sentenced to life imprisonment, Kamil Sadraddinov, the former head of the department of the Main Criminal Investigation Department of the same ministry, and Ramil Safarov, who killed an Armenian lieutenant in Hungary in 2004, whose pardon caused a diplomatic scandal and a case in which the ECHR recognized Azerbaijan's violation of Articles 2 and 14 of the ECHR.
The ECtHR’s case law on the “right to hope” has an approach that deals with pardon issues. In the case of Harakchiev and Tolumov v. Bulgaria, the Court recognized the lack of a clear procedure for the release of life-sentenced prisoners in matters of pardon, which falls within the competence of the President, as a violation of Article 3 of the ECHR.
The Code of Criminal Procedure (hereinafter referred to as the CCP) contains certain standards and guarantees regarding the application of life imprisonment. According to Article 347.4 of the Code, if the court's decision on the sentence is made by a simple majority, the application of life imprisonment is possible only by unanimous decision. By Article 356.6, upon application, the convict must be explained his right to file a petition for pardon. In accordance with Article 513 of the CCP, convicts sentenced to life imprisonment may re-apply for conditional early release and replacement of the unserved part of the sentence with a lighter sentence at least 1 year after the court's decision to reject the application. Even though domestic legislation recognizes the right of life-sentenced persons to conditional early release from prison and to commute the unserved portion of their sentence to a lighter sentence, the lack of a functioning mechanism for the implementation of this right may raise issues under Article 3 of the ECHR. While no public, close monitoring of domestic media suggests that there has been no procedural reduction of the sentences of such life-sentenced prisoners.
Political life-sentenced prisoners
The latest edition of the list of political prisoners, for 2025, published and updated by the Institute for Peace and Democracy includes the names of 13 life prisoners. According to the breakdown, 1 prisoner received a life sentence for the “Tartar case”, 6 for the “OMON case”, 4 for the criminal case of the “Garangush” military unit, and 2 for the “Surat Huseynov case”. Apart from Elshad Gasimov, who received a life sentence for the “Tartar case”, the other individuals received life sentences as a result of the abolition of the death penalty.
In the 2020 list, this number was 14. The decrease is due to the death of Elshad Mustafayev, a figure in the “Surat Huseynov case”, who was mentioned in the list. Specifically, a public campaign has been underway for a long time to mitigate the sentences of prisoners in the “OMON case”. The campaign itself was accompanied by appeals from human rights defenders, appeals to the Pardon Commission, hunger strikes by prisoners, and the like. Despite the fact that the prisoners also applied for commutation of their sentences in a procedural manner, domestic courts refused to consider the application. The absence of the names of individuals considered political prisoners in the analyzed pardon lists, which include life-sentenced prisoners, further demonstrates the violation of their “right to hope”.
Conclusion:
There are problematic aspects in the practice of implementation of the “right to hope” of life-sentenced prisoners, both procedurally and via pardon. According to human rights defenders, there are grave issues with the pardoning and court appeals of life-sentenced prisoners. Despite the fact that appeals have been made through the courts and through pardons for the commutation of life-sentenced prisoners’ sentences and their release, there is a need to take comprehensive measures to implement the “right to hope”. Via media reports, there are cases of prisoners serving long life sentences applying for commutation of their sentences through the courts. Despite the small number of such cases, the information disseminated gives the impression that such applications are not granted by the court. It implies that, compared to the procedural mechanism, ensuring the right to hope is relatively more effective through the prism of pardon - there is no widespread practice of ensuring the procedural rights of prisoners.
“Tribunat” concludes that although there are legal mechanisms for the implementation of the “right to hope” in Azerbaijan, the shortcomings in the legislation and judicial practice give grounds to keep the problem of life-sentenced persons on the agenda. In order to follow innovations such as the “right to hope” in a developing human rights system, there must be flexible legislation, a transparent judicial system and a dynamic civil society. The fact that life-sentenced individuals have no hope of being released raises questions about their rehabilitation and calls into question the achievement of the main goals of the criminal-penalty system. Failure to integrate the established practice of the ECHR may lead to violations of the rights of life-sentenced individuals.
