Azerbaijan, Baku, 24 November / Trend corr. K.Zarbaliyeva/ So far, the Azerbaijani Parliament (Milli Majlis) has not fulfilled the Constitutional Court's (CC) decision concerning removal of contradictions between Articles 87.6.14, 89.4.12, 422.3 and 420.3 of the Criminal Procedural Code (CPC).
The criminal and procedural legislation envisages rights of examination of cases, participation in study of materials of case of injured person, civil plaintiff and their legal representatives in cassation order. Although in accordance with these regulations, the injured person has a right to lodge a complaint against a decision of court at the Supreme Court Plenum, the Article 420.3 restricts this right. Under requirement of the article, the Supreme Court cannot examine a complaint against a decision without a protest of Prosecutor General's Office.
From the abovementioned decision, the CC follows that the legislation makes providing of injured person's rights depend on position of the public prosecutor and this fact restricts injured person's rights in criminal procedure. Taking into consideration this, the Constitutional Court came to following conclusion: basing on that injured person's right to lodge a complaint at the supreme juridical instance to toughen punishment is not included in the Constitution, it should be described in the Criminal and Procedural Code.
The CPC as not comprised an order, under which right of examination of case and participation in study of materials of civil plaintiff and their legal representatives will be realized.
The CC believes that a decision of the Supreme Court Plenum on cases, examined in cassation order, can affect legal interests of injured person and civil plaintiff.
Participation of injured person and civil plaintiff in examination of case at the Supreme Court Plenum provides realization of justice on the base of disputable principle.
As right of lodging complaints in additional cassation order and providing participation of injured person and civil plaintiff in examination of case bases on requirements of the Constitution, this right should be included in the CPC, the CC's representatives believe.
The legislative body was commissioned to remove the abovementioned shortages and restrictions. However, so far, the Azerbaijani Parliament has not yet fulfilled the abovementioned decision of the CC.
According to Anar Babayev, the Director of the Department on Control over Execution of Court Sentences of the Constitutional Court, so far the Constitutional Court has submitted 18 recommendations to the Parliament, five to the Cabinet of Ministers, and one to the Prosecutor General's Office.
The Cabinet did not execute two sentences out of five, while the Parliament executed 60% of the sentences (30% completely, 20% partially and 10% indirectly).
According to Babayev, the sentences unexecuted by the Parliament include the Constitutional Court's sentence On Comments to Article 75 of the Criminal Code dated 27 December 2006; On Article 1079.2 of the Civil Code and Articles 15 and 18/1 of the Law on Notary dated 29 July 2007; on the basis of the request by the Prosecutor General's Office On Comments on Provision 'Refusal of Public Prosecutor and Special Prosecutor from Criminal Prosecution' stipulated in Articles 43.1.1, 314.2 of the Criminal and Procedural Code dated 15 February 2008; On Comments to Article 228.5 of the Criminal Code dated 27 May 2008; On Comments to Article 21 of the Law on Basics of Conscription to Military Service and Article 180.3 of the Code on Execution of Sentences dated 22 September 2008.
The Constitution says that the Plenum of the Constitutional Court makes decisions on behalf of the Azerbaijan Republic. These decisions are final and cannot be cancelled, changed or officially commented by any body or person.
According to Unit 9 of Article 130 of the Constitution, decisions of the Constitutional Court enjoy binding force in the territory of Azerbaijan. After a decision takes force it shall be unconditionally executed. Ranking persons who do not execute the sentences of the Constitutional Court shall bear responsibility in the order envisaged by the legislation.
The judge of the Supreme Court, Muzeffer Agazade said Parliament's non-fulfilment of two resolutions by the Constitutional Court creates serious problems in the work of the Court and causes violation of rights of the claimants. He also added that non-fulfilment of the Constitutional Court's resolutions by the authorized structures leads to an increase in the complaints of citizens regarding the courts. Agazade thinks that delay or non-fulfilment of the resolutions by the Constitutional Court is explained through the absence of responsibility of the officials.
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Babayev said his department is not authorized to take any punishment measures against those not executing court sentences. Law on Constitutional Court does not indicate punishment measures for non-execution of sentences of the Constitutional Court. "As the Law does not include mechanism of control over the execution of sentences, it is impossible to exercise control over the execution of sentences of the Constitutional Court," Babayev said.
He said Constitutional Court faces problems in executing sentences related to private complaints. He said there are sentences passed by the Constitutional Court on individual complaints that courts do not take into consideration a legal position of the Constitutional Court. Chairman of the Constitutional Court Farhad Abdullayev said non-execution of sentences of the Constitutional Court creates serious problems and casts a shadow on reputation of courts. Those not executing court sentences should be held responsible both criminally and morally, he said.
"Non-execution of sentences means ignoring decisions of court system. In practice, lawsuit is filed against those not executing court decisions. However while comparing decisions about making criminally responsible with the number of non-executed sentences, one can see obvious difference. If the sentence is not executed for inadequate reasons, it can be subject of discussions in this case," Abdullayev said.
Abdullayev decried CC decisions as legal irresponsibility said CC does not exercise control over the execution of sentences.
"We do not have opportunities to impose any sanction or to pressure in case sentences are not executed," CC chairman said.
The chairman considers that there is no need in creation of an agency, which would carry out decisions by the Constitutional Court, and the agency might reduce the authority of the court.
"Everybody should know that decisions made by the Constitutional Court must be, undoubtedly, carried out. For this purpose a juridical culture must be formed. I think that the problems aroused due to fulfillment of the decisions by the Constitutional Court will be removed soon," the chairman said.
Khanlar Hajiyev, the judge of the European Court and first chairman of the Constitutional Court, does not see a necessity to establish special institutes, which will occupied with fulfillment of decisions by the Constitutional Court.
According to Hajiyev, one of the key goals of the establishment of constitutional courts in post-communistic countries was to provide viability to the Constitution itself. According to Hajiyev, the capacity of political and legal institutes of countries to carry out decisions of Constitutional Court depends on the democracy and superiority of law, and on the legal political culture.
"It is difficult to compare Azerbaijan with the Great Britain, where the authority of court's decision is stable. There is not a need to trace the fulfillment of court's decisions. The rate of respect to court's decisions is proportional to the rate of the democracy culture.
The aforesaid problems in Azerbaijan will be removed as integrating to European democratic and lawful areas, Hajiyev said. Touching upon the implementation of Constitutional Court's decisions by the Parliament, Hajiyev accepted the availability of problems in this sphere. However, the Parliament does not reject to fulfill the decisions made by the Constitutional Court, but delays to accept decisions.
According to Hajiyev, problems in the legislation could be tackled through corresponding decisions of the Constitutional Court. "Attitude to such a judicial lawmaking is ambiguous, especially by lawmakers," Hajiyev noted.
Non-fulfillment of a decision by the Constitutional Court might cause serious crisis. Hajiyev does not believe in that the situation with fulfillment of the Constitutional Court's decisions is at the same rate. If a crisis will happen then a person has a right to make a court appeal to fulfill court's decision by forcible means.
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