Strasbourg, 1 February 2006

CCJE/REP(2006)14
English only

Consultative Council of European Judges (CCJE)

Questionnaire on “The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism”: reply submitted by the delegation of Azerbaijan

A. Availability of information and documentation on all international legal instruments relevant to judicial activities (point IV (d) of the framework action plan)

Questions

A.1. Does your country have schemes to provide judges with initial and in-service training in international and European law? If it does, please provide a list of those schemes, specifying the subjects dealt with over the last year. Please indicate the number of judges concerned by these schemes, distinguishing between initial and in-service training, and the total number of judges in your country.

In the process of ongoing judicial reform in the Republic of Azerbaijan great attention is given to the creation and improvement of the initial and in-service judge training schemes. The Legal Education Center (the Ministry of Justice of the Republic of Azerbaijan) occupies with organization and realization of such training.

Initial judge training schemes
In the year 2005 the Council of Europe – Azerbaijan Joint Group on the Independence, Selection, Appointement and Evaluation of the Justice Officials Activity, and also the Experts Commission on Education (more detailed see in item. В) at support of the German Society of Technical Cooperation (GTZ), being based on experience of the French National Magistrates School and similar schools of other states, the project of the first long-term compulsory initial candidate judge training was elaborated; its realization is scheduled to 2006. The training program involves the course of forensic examination, bases of economy, business accounting, international and European law, including the European Convention on Human Rights (ECHR), requirements of international treaties against torture, brutal, inhuman or degrading treatment and punishment, European Convention on judges` status, international standards of juvenile justice, etc.

In the program of training, besides lectures, carrying out of moot courts, settling of causes, etc. is also provided. Traineeship of candidates in corresponding first instance courts is provided immediately upon termination of training program.

Several meetings and events on exchange of experience and information with the other states in this branch were realized in the process of project preparation. The most important ones were participation of direction of the Law Education Center in the multilateral meeting of directors of European Judicial Schools, carried out on 22 November 2005 in Strasburg (France) and also the seminar on the theme of “Creation and Development of Judicial School”, realized in the context of the Council of Europe in Budapest (Hungary) on 13-14 December 2005. Azerbaijan is a party to the Lisbon Network and participated in its last plenary session which took place in Strasbourg on 23-24 November 2005.

At the moment taking into consideration the offers and recommendations of the specialized establishments of the Council of Europe and other international organizations works on the further development of the long-term initial training project are carried out.

In-service judge training schemes
During recent years the Legal Education Center has elaborated and carried out a number of the programs of in-service judge training dealing with the Constitution of the Republic of Azerbaijan, criminal, criminal procedure, civil, civil procedure legislation, the European Convention on Human Rights and Fundamental Freedoms, international conventions against tortures, cruel, inhuman or degrading treatment and punishment, judicial ethics, judicial, medico-legal, medico-psychiatric examination, etc. The training were carried out with the active participation of the judges of the Constitutional Court, the Supreme Court, the Court of Appeal, the Economical Court and some district and city courts of the Republic of Azerbaijan. Annually about 40 judges (among 329) pass various in-service training programs in the Republic of Azerbaijan .

Courses and seminars of in-service training are realized not only in the capital, but also in the regions of the Republic of Azerbaijan. Thus, in 2005 a number of seminars, concerning more than 60 judges were organized by support of German Technical Collaboration Society (GTZ) in various towns (Masalli, Sheki, Kuba, Gandja) all over the Republic of Azerbaijan.

According to the Presidential Decree 19 January 2006 on the improvement of judicial system of the country and application of the law on modification and additions in some acts of the Republic of Azerbaijan, in particular in the Courts and Judges Act and the Judicial - Legal Council Act, the Judicial - Legal Council is recommended to creat the National Supreme Justice School with the support of the Ministry of Justice. At this school it is planned to establish both initial and in-service training programs for judges (distinguishing in-service training of newly appointed judges and senior judges, and also chairmen of courts), the other judicial staff, public prosecutors, notaries and other law school graduates.

The meetings with the Council of Europe – Azerbaijan Joint Group on the Independence, Selection, Appointement and Evaluation of the Justice Officials Activity, and also with the Experts Commission on Education are planned to be carried out in France in February 2006 with the purpose of experience exchange in the given area. During these meetings, among other actions, visiting of the Judges School in Paris is planned.

The organization of activity and financing of the infrastructure of the Supreme Justice School is one of the key issues of the current World Bank Azerbaijan Judicial Modernization Project.

A.2. Do all judges periodically receive full information on recent legislation and case-law at the European and international levels, without it being necessary for them to perform their own research in these matters? If they do, please indicate what types of documents are sent direct to each judge by the national authorities (e.g. official gazettes, legal periodicals). Please also specify what information is available on paper and what is provided in electronic form (CD-Rom, for instance).

Normative acts, consisting the legislative system of the Republic of Azerbaijan, are periodically published in the official editions, such as “Azerbaijan”, “Respublika” and others. Except that, normative acts are published in the bodies of the Ministry of Justice – newspaper “Adliyya” and journal “Ganunchulug”. Decisions of the Plenum of the Supreme Court of the Republic of Azerbaijan are published in the “Bulletin of the Supreme Court”, decisions of the Constitutional Court are published in the official editions such as “Azerbaijan” and also in the “Information of the Constitutional Court”. All the above-listed editions and publications are delivered to all the judges via subscribe way.

At the same time the compilations, including new normative acts, and all the amendments and additions, made into the legislation are periodically duplicated in the editorial office of the Ministry of Justice and sent to the judges.

Beside the counted legal periodicals, the supplemented legal literature (compilations of the decisions of the European Court of Human Rights, the Courts of the Republic of Azerbaijan, commentaries to the codes, etc.) is regularly published and sent to the judges with the support of international organizations such as GTZ, ABA - CEELI, OSCE, etc. Thus, with the support of the Society of Technical Cooperation (GTZ) and other organizations the first Compilation of Resolutions of the Constitutional Court on the Individual Complaints was published in three languages (Azeri, Russian, English). Besides, monthly compilations of the decisions of all four boards of the Supreme Court of the Republic of Azerbaijan (the Civil Case Board, the Criminal Case and Misdemeanour Board, the Military Case Bourd, the Economical Case Bourd) are periodically sent to every Court.

All new acts adopted in the given area, namely, the Courts and Judges Act in view of last changes and additions, the Judicial - Legal Council Act, the Judges Selection Committee Charter, the Rules of Selection of Non-Judicial Candidates to Vacant Judicial Postes, and other documents have been published as separate brochures in Azeri and English and distributed to all courts, judicial authorities and other government bodies, the Council of Europe and other international organizations.

Аccording to the article 5 of the Сourts and Judges Act 1997, all judgements of the cassation and appeal instances shall be published within one month upon the issue and disseminated by means of electronic carriers. Attached to these decisions shall be the quashed or altered decisions of the lower court.

This information is also placed on the official web-sites of the Ministry of Justice, Judicial – Legal Council, the Supreme Court and the Courts of Appeal.

According to the above mentioned 19 January 2006 Presidential Decree the Judicial - Legal Council and the Ministry of Justice considers measures on strengthening the information support given to the courts, and also on their supply by new information technologies.

A.3. Do judges have an opportunity to attend foreign language courses? Are these courses free of charge or state-subsidised? Does each court have legal translation facilities?

In compliance with clause II of the Article 11 of the Civil Procedure Code of the Republic of Azerbaijan, the persons, who participate in the case, but lack knowledge of the court proceedings language are given the right to learn case papers, appeal in court, plead, present arguments and give evidences, enter an appeal in native language, as well as use interpreter services for free. Taking into account the provisions of the stated article, each of the courts of Azerbaijan is provided with funds both for translation of judicial documents and interpretation at court hearings. Considering the abovementioned, as well as expansion of international judicial cooperation and activation of the dialogue between the national courts of Azerbaijan and those of the foreign countries, judges are given the opportunities to study foreign languages (for instance, the opportunity to attend French courses organised by the Ministry of Justice and the Cultural Centre attached to the Embassy of France in Azerbaijan for free).

B. Dialogue between national and European judicial institutions (point IV (c) of the framework action plan)

Questions

B.1-2. What means does your country use to enhance dialogue between the national courts and the European courts? Please provide information on training dispensed in this connection over the last year. Does your country hold events bringing together the national courts and the European courts? Who participates in these gatherings?

The dialogue between the national courts of the Republic of Azerbaijan and those of foreign countries (including the European countries) is a necessary condition for improvement of the justice system and providing its effectiveness. The government of the Republic of Azerbaijan uses all the means to enhance the dialogue and engages the international organizations and donors for that.

There was a number of important events organized in this connection. In the year 2004 the Council of Europe – Azerbaijan Joint Group on the Independence, Selection, Appointement and Evaluation of the Activity of Justice Officials was created. The Coordinator of the Council of Europe Legal Departement on Azerbaijan Jean Clause, French judge, the ex-director of the Bordo Judicial School Claud Anoto, a judge from Spain Karlos Martines, a judge from Italy Rafaele Sabato and a number of azeri judges are the members of that Group. The Group worked out the Draft Law on Amendements and Additions to the Courts and Judges Act as well as the Draft Law on the Judicial –Legal Council that were adopted in 2005. At the same time the Judges Selection Committee Charter and the Rules of Selection of Non-Judicial Candidates to Vacant Judicial Postes, worked out by the Group, were adopted. According to the new legislation in February 2005 the Judicial –Legal Council was created; in March 2005 the Judges Selection Committee was formed. In 2005 new draft laws on the basis of judicial activity were made by Special Committees of the Judicial – Legal Council. The Judges Ethics Code and the Rules of Amenability of Judges are among them.

In the same year with the purpose of improvement of the process of carrying out of initial and in-service judges and candidates training the Joint Azerbaijan - Council of Europe Experts Commission on Education is created comprising the judges of various azeri courts and the countries of Europe, and also other officials and experts in the given area. The Commission regularly carries out meetings and discussions, develops new projects, and also gives the recommendations on their realization, providing thus an effective experience and information exchange in the specified area.

There may be marked out the meeting of European and national judges in the context of Venice Commission of the Council of Europe in Baku (Azerbaijan) on 29 – 30 September 2005. Meeting devoted to the theme “Role of Judges in the Solution of Conflict Situations in the Process of Elections”, passed with the participation of judges from France, Italy, Switzerland and many other countries of Europe, and also judges of the Constitutional Court, the Supreme Court, the Court of Appeal and other courts of the Republic of Azerbaijan.

There were read lectures on “The Right for Fair Trial and Independence of the Judicial Authority” by Thomas Vennen, the manager of the project “Reform and Improvement of Legal and Judicial system of the Republic of Azerbaijan ” in the context of the program TACIS in 2005. At the same time there was a number of seminars organized by Thomas German, the Project Leader of the German Society of Technical Cooperation (GTZ), devoted to “Payment of Compensations According to the Civil Code of the Republic of Azerbaijan”. One of the basic actions of the year 2005 in this area were seminars carryied out with the support of ABA - CEELI by the judge from the USA Anna Furr that considered more than 50 judges in such cities of Azerbaijan as Gandzha, Quba and Naxichivan.

During 2005 with financial and organizational support of such international organizations, like Council of Europe, OSCE, ABA – CEELI, German Society of Technical Cooperation, World Bank, etc., there were worked out and realized various events aimed on activating the dialogue between national and foreign courts.

Besides, there was concluded a number of agreements on cooperation by the Ministry of Justice, implicating the exchange of information in this sphere with such countries as Austria, Netherlands, France, Italy, Lithuania, etc.

C. Application by national courts of the European Convention on Human Rights and the case-law of the European Court of Human Rights, European community law and other international legal instruments (point IV (b) of the framework action plan)

Questions

C.1. In your country what rank do the following sources of law enjoy in the hierarchy of law in particular in relation to constitutional provisions and ordinary legislation?

a) the European Convention on Human Rights (ECHR)
b) EU treaties
c) the case-law of:

    - the European Court of Human Rights
    - the Court of Justice of the European Communities

d) international treaties.

Please cite the relevant constitutional provisions or case-law.

Does your country's case-law recognise the value - at least for interpretation purposes - of Council of Europe recommendations and resolutions? If the European Court of Human Rights were to hold that certain provisions of your country's legislation violate the ECHR, would your national courts be permitted not to apply those provisions? Apart from execution of the Court's judgments by the government, do the national courts have authority to prescribe their own measures implementing the Court's decisions?

According to the clause I of the Article 148 of the Constitution of the Republic of Azerbaijan, the legislative system consists of the following normative acts:

      1) the Constitution;
      2) the acts, adopted by referendum;
      3) laws;
      4) orders;
      5) the resolutions of the Cabinet of Ministers of the Republic of Azerbaijan;
      6) the normative acts of central bodies of the executive power.

According to the clause II of the stated article of the Constitution, international treaties of the Republic of Azerbaijan, are also essential constituent part of the legislative system of the Republic of Azerbaijan. In the case of the contradiction between normative acts, included into the legislative system of the Republic of Azerbaijan (excluding Constitution and acts, adopted by the referendum), and international treaties of the Republic of Azerbaijan the provisions of international treaties are to be applied (Article 151 of the Constitution, and also the Law on normative acts).
As seen from this article, the European Convention on Human Rights and Fundamental Freedoms (which is ratified by the Republic of Azerbaijan on the 25th of December, 2001), EU treaties as well as international treaties of Azerbaijan are essential constituent part of the legislative system of the Republic of Azerbaijan. In the case if the provisions of the national legislation violate the European Convention on Human Rights, the national courts of Azerbaijan shall use exclusively the norms of the abovementioned international document.

As the result of ratification of the European Convention on Human Rights and other documents of the Council of Europe by Azerbaijan, the necessary amendements on incorporation of the provisions of these international documents are included into the legislation of the Republic of Azerbaijan.

As for the judicial power of the judgments of the European Court of Human Rights, according to the provisions of the European Convention on Human Rights (Article 46) and the order provided by the legislation of the Republic of Azerbaijan, these judgments shall be implemented in an obligatory, timely and precise manner by all natural and legal persons on the territory of the Republic of Azerbaijan. There is no need in any additional prescriptions for the implementation of these judgments. However, in the case of necessity national courts of Azerbaijan are authorized to pass corresponding writs in this connection.

According to the point 6 of the 19 January 2006 Presidential Decree the Supreme Court of the country, the Courts of Appeal, and also the Supreme Court of Naxichivan Autonomous Republic are recommended to organize work on the European Court of Human Rights case-law studying and its application in judiciary practice.

C.4. Where legislation violating provisions of the ECHR has been applied in legal proceedings concluded by a final, non-appealable decision, are the following remedies available in your country before a possible application to the Court in Strasbourg:

- a direct application for reopening of the proceedings?

In compliance with Article 432 of the Civil Procedure Code of Azerbaijan (Reopening of a case) the judicial acts, which have entered into the legal force may be reopened under newly revealed circumstances. Below are the reasons for the reopening of the judicial proceedings:

1. in the event if the decisive facts which had not been known during the trial have been revealed after the pronouncement of the judicial acts;
2. determined by the Court sentence which has entered into legal force wittingly given false evidences, false expert decision, false interpretation, falseness of the papers or material evidences, thus bringing to illegal or unjustified judgement;
3. determined by the Court sentence which has entered into legal force criminal actions of parties, other persons participating in a case, or their representatives, or criminal acts of judges committed during the case trial;
4. repeal of judgement, sentence and resolution of the Court or another Body, which served as a reason for pronouncement of the judicial acts.

The Supreme Court Plenum reopens the judicial acts which have entered into the legal force. Having considered the application on the reopening of a case, the Supreme Court Plenum of Azerbaijan either complies with an application and repeals the judgement or rejects it. In the case of judicial act repeal, the case is referred to the relating Court.

D. The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism

Questions

D.1. Has your country incorporated the Council of Europe recommendations and resolutions in its legislation or taken special measures to distribute and publicise these instruments? Has your country adopted substantive and procedural measures specifically applicable for cases where a suspicion about terrorism exists? What means does your country use to reconcile the demands of security and of the protection of human rights in cases where suspicion about terrorism exists? Please indicate the measures taken, in particular in the fields of criminal law, admission, exclusion and deportation of aliens, and preventive actions.
Can you quote some specific cases where the question about such a reconciliation was raised?

In the beginning of the century terrorism is unanimously rated like one of the most dangerous occurrence, threatening the international law and order, international relations and interests, international security of states, life and health of the population of all the planet. Azerbaijan has been suffering from the terrorism for a long time. Since the beginning of armenian aggression their terrorist groups made 32 terrorist acts against Azerbaijan, in the result of which scores of innocent people died.

Azerbaijan is a party to all nine European conventions in the sphere of counteraction to the terrorism. In the whole these documents form rather wide base for cooperation of states on different aspects of execution of justice on the corresponding criminal cases. In this connection there were made corresponding amendments and additions with an aim of improvement of the national legislation of the Republic of Azerbaijan. We will count some of them.

The Act of the Republic of Azerbaijan against Terrorism has been in effect since 1991. According to the Article 1 of this Act, terrorism is determined as fulfilment of explosions, fires or other actions representing threat to life of people, drawing of damage to their health, causings of significant property damage or occurrence of other socially dangerous consequences, with the purpose of infringement of public safety, making a panic among the population or rendering of influence on decision-making by bodies of the government or the international organizations, and also threat of fulfilment of similar actions with same purpose.

The Criminal Code of the country provides amenability for terrorism and financing of terrorism, act of terrorism and androlepsy, deliberately false information about an act of terrorism, organization of criminal association, stealing of air and water transport or railway train, attack on establishments that are under the international defense, illegal production of weapons, theft or extortion of arms, ammunition, explosive and explosive assembly, creation of armed units or groups unprovided by legislation.

The Law of the Republic of Azerbaijan on Extradition of persons who have committed a crime forbids qualifying the acts of terrorism as crimes of political character; it provides their extradition for bringing to criminal liability. Over period of time run out from the events of 11 September 2001 the corresponding services of the country have established and extradited more than 30 foreign citizens connected with terrorist activity; 8 active members of such international terrorist organizations as “Al-Kaida”, “Al-Jamaa”, “Al-Islamiya” and “Al-Jikhad” are among them.

The Act of the Republic of Azerbaijan on Refugees and IDPs excludes accordance of refugee’s status to a person, who has committed a crime against the world, upon humanity or humanness, war crime, as well as a person, who has committed a grave crime of non-political character before being extradited to Azerbaijan. The organization acting on the territory of Azerbaijan (it’s branch or representative) shall be liquidated by the court decision, its property shall be confiscated if it is connected with terrorist activity. The Act of the Republic of Azerbaijan on Legal Redress on criminal cases is widely used as well.

The criminal legislation of Azerbaijan refers terrorism and the relating criminal acts to the serious crime category. In compliance with the provisions of the Courts and Judges Act of Azerbaijan, the Serious Crimes Court of the Republic of Azerbaijan considers this category according to collegial principle. At the hearings with suspicion on terrorism, the most experienced in this area judges with the corresponding international and national training are appointed.

Over the last year in Azerbaijan two verdicts on participation in terrorist organisations as well as preparation and carrying out of terrorist acts in the territory of Azerbaijan were past in compliance with Article 214 of the Criminal Code of Azerbaijan (Terrorism). In addition, in the year 2005 the Serious Crimes Court, and then the Court of Appeal tried the case and past the sentence on extradition of the Turkish citizen, where she was wanted for participation in terrorist organisation.



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