ON BEHALF OFREPUBLIC OF AZERBAIJAN
DECISION
OF THE CONSTITUTIONAL COURT
OF REPUBLIC OF AZERBAIJAN
On interpretation of Articles 26 and 96 of the Criminal procedure Code of the Republic of Azerbaijan
15 July 2011 Baku city
The Plenum of the Constitutional Court of the Republic of Azerbaijan composed of Farhad Abdullayev (Chairman), Sona Salmanova, Fikret Babayev, Sudaba Hasanova , Rovshan Ismaylov, Jeyhun Garajayev (Reporter-Judge), Isa Najafov and Kamran Shafiyev;
attended by the Court Clerk I.Ismaylov,
the legal representatives of the subjects interested in special constitutional proceedings: Sahibhana Mirzoyev, Judge of the Baku Court of Appeal and Jamal Ramazanov senior advisor of department of military and administrative legislation of Administration of the Milli Majlis of the Republic of Azerbaijan
experts: Firuza Abbasova, Ph.d. in law, Associate Professor, head of the Criminal Procedure Board of the Law Faculty of Baku State University,
Shahin Yusifov, Chairman of Criminal Board of the Supreme Court of Republic of Azerbaijan,
in accordance with Article 130.6 of the Constitution of the Republic of Azerbaijan examined in open judicial session via special constitutional proceedings the case on request of Baku Court of Appeal concerning interpretation of Articles 26 and 96 of the Criminal procedure Code of the Republic of Azerbaijan,
having heard the report of Judge Jeyhun Garajayev, the reports of the legal representatives of the subjects interested in special constitutional proceedings and experts, the Plenum of Constitutional Court of the Republic of Azerbaijan
DETERMINED AS FOLLOWS:
In its request Baku Court of Appeal asked the Constitutional Court of Republic of Azerbaijan (hereinafter referred to as the Constitutional Court) to give interpretation of Articles 26 and 96 of the Criminal Procedure Code of Republic of Azerbaijan (hereinafter referred to as CPC).
In the request it is pointed out that by the verdict of Garadagh district of Baku city of July 14, 2010, A. Hasanova was found guilty of committing a crime provided for in Articles 177.2.1 and 177.2.2 of the Criminal Code of Republic of Azerbaijan (hereinafter referred to as CC), and sentenced her to the penalty of deprivation of liberty for a period of 5 (five) years. By the decision of the Court of Khatai district of Baku city on her conditional - prescheduled release from sentences from April 22, 2009 according to Article 76.6.3 of CC abolished the sentence of punishment imposed by a court sentence of Ali-Bayramli city of August 21, 2007, according to section 67.1 of the CC, connected with present punishment and preserved the final sentence of imprisonment for a period of 5 (five) years of 6 (six) months.
A. Hasanov, hiving filed an Appeal against this sentence, asked to review the case but did not challenge the evidence and the offence.
By the decision of the Criminal Board of Court of Appeal (hereinafter referred to as the CC of the Baku Court of Appeal) of September 8, 2010 the verdict of Garadagh district of Baku city of July 14, 2010 was left unchanged and the Appeal was not upheld.
Further, the Criminal Board of the Supreme Court of Republic of Azerbaijan (hereinafter referred to as the CB of the Supreme Court) concluded that the investigation carried out conceding A. Hasanova suffered from serious procedural violations and by its decision of January 26, 2011 cancelled the decision of the Court of Appeal of Baku on prior review of August 30, 2010 and the final judicial review of September 8, 2010, then returned the case to the Baku Court of Appeal for a new trial within the stage of preliminary consideration.
In the above-stated judgment of the Supreme Court it is stated that the suspect or accused who is not acquainted with the Latin Azeri alphabet graphics, shall get the documents in the Cyrillic alphabet, which he can read. Thus, in the interrogation of the accused A.Hasanov, stating that she is fluent in reading in Azeri with Latin graphics but have the difficulties in writing, requested to write her testimony on the Cyrillic alphabet. In that decision it is indicated that that an alien not speaking the State language of proceedings materials and Azerbaijani not knowing the Azeri alphabet with Latin graphics on which are the proceedings materials in fact are in the same position. Both a foreigner who does know the language of proceedings and Azerbaijani not knowing the Azeri Latin alphabet are deprived of the ability to read and follow the proceedings materials and thus effectively to defend against the charges.
Thus, in the decision of CB of the Supreme Court it is stated that according to Article 26.2.2 of CP, the right to use the services of an interpreter free of charge during the investigation and court hearings, to be fully familiar with all documents relating to the case and criminal prosecution and to use their mother tongue in court. And the absence of this implies the violation of Article 25 of CPC.
In its turn, the Baku Court of Appeal in its request noted that with regard to the application of rules governing the requirements of proceedings there is an ambiguity.
So, within the meaning of the relevant provisions of the CPC, the right to the assistance of an interpreter can be enjoyed by a person who is fluent in language but not by a person who does not know the alphabet of written proceedings. For this reason, from the point of view of the requirements of Article 26 of the CPC it would be wrong to equalize the procedural situation of these two individuals. At the same time, it is incorrect to consider a person who is not capable to write in Azeri with Latin graphics as illiterate. Unlike to a foreigner who does not know the Azeri language, an Azerbaijani not knowing Latin, during proceedings can speak in his native language as well as apply and challenge the relevant procedural actions in his native language.
At the same time, in the appeal it was pointed out that the translation of documents with Latin letters into Cyrillic is not provided for in Article 96 of the CPC that defines the procedural status of the specialist in criminal proceedings.
According to the applicant, the interpretation of Articles 26 and 96 of the CCP will pave the way for the formation of the unified judicial practice in connection with these issues.
As regards the issue raised in request the Plenum of Constitutional Court notes as follows:
Purpose the criminal procedure law of the Republic of Azerbaijan is to define the legal procedures for criminal prosecution and defend of a suspect or accused person. CPC defining these procedures ensures that a person who has committed a crime shall possess equal (balanced) opportunities in the process of bringing to criminal responsibility. So, the law provides the legal basis for equality of opportunities between the prosecution and the defence.
In the criminal process the language is one of important means. Knowledge of the language used in the criminal proceedings creates the possibility of the suspect or accused to defend his position and interests. Lack of knowledge of the official language of proceedings creates certain difficulties for the defence. From this point of view, the language used in the criminal proceedings referred to in Article 26 of the CPC should be carried out in accordance with the principles of the legal equality of all before the law and the courts (art. 11 of the CPC), legal aid, the right to protection (art. 19 CCP), etc. principles.
International legal acts in the field of human rights defines as important the knowledge by a suspect or accused of proceedings language, as one of the significant and important tools for the effective implementation of their protection. In points “a” and “f” of paragraph 3 of Article 14 of the International Covenant on Civil and Political Rights it is stated that In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
According to paragraph 2 of Article 5 of the European Convention on Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as Convention), Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.And subparagraph “a” of paragraph 2 of Article 6 of the Convention provides that Everyone charged with a criminal offence shall be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him.
The criminal-procedural requirements of international standards related to language, provides for the full and effective use of means to protect every person accused of a crime.
For the realization of the right to protection of a number of rights there is the right of direct acquaintance of the accused with documents available in the materials of the criminal case (Article 91.5.2, 91.5.3, 91.5.18, 91.5.20-91.5.23, etc.). Direct (personal) exercise of these rights depends on the knowledge of the suspect or accused of the language used in the criminal proceedings, as well as his ability to read and familiarize with documents made in this language. In its turn, Article 92.3.4 of the CCP gave the body conducting criminal proceedings, the obligation to provide the suspects and accused persons who does not speak the language of the criminal proceedings with defence counsel, as regards those who do not know the Latin Azeri alphabet graphics in which the proceedings are conducted, or completely illiterate persons in the CCP, there is no similar provision.
One should take into account that the equalization of the status of holders of Azerbaijani language but not able to read documents implemented in Latin graphics with those who can read documents made in the Cyrillic alphabet according to Article 26.2 of the CPC is unacceptable. Article 26 of the CCP is applied to persons who do not possess Azeri language or speak the language partially and do not understand it completely.
As a symbol of the Republic of Azerbaijan, the Azeri language is one of the core topics of its independence: the language of the Azerbaijani people are one of the main factors for its national being.
According to Article 21 of the Constitution, the State language of Azerbaijan is Azeri. The Republic of Azerbaijan ensures the development of the Azeri language.
In paragraph 9 of the Decree of the President of the Republic of Azerbaijan "On perfection of measures for the use of the state language" signed on June 18, 2001 it is required to transfer into Latin graphics before August 1, 2001 of all Azeri-language newspapers, magazines, newsletters, books and other printed products. This Decree states that there should be defined the responsibilities for the conduct of covert or overt propaganda against the State language, resisting the use and development of the Azeri language, attempts to limit its rights to prevent the use of Latin script.
It is in accordance with this Decree that the Code of Administrative Offences of the Republic of Azerbaijan establishes the liability. In accordance with Article 315-1 of that Code the Propagation against official language, maintaining the resistance to use and development of Azeri, attempt to limit the sphere of its use and also prevention of application of the Azei latin alphabet in Azerbaijan there is provided for administrative punishment.
According to Article 14 of the law of Republic of Azerbaijan “On the official language in the Republic of Azerbaijan” of September 30, 2002 the alphabet of the State language of the Republic of Azerbaijan is Azeri alphabet with Latin graphics. Article 11.4 of this Decree stipulates that criminal proceedings in the courts of Republic of Azerbaijan shall be conducted in the State language. Given the historical development of Azerbaijan, Article 15.3 of this law states that the Arabic alphabet and the Cyrillic which played an important role in the history of Azerbaijani writing culture can be used in special cases (in dictionaries as the pointer references in scientific journals, etc.). the mentioned exceptional cases do not concern the formal turnover of the modern Azeri language with Latin graphics.
Bearing in mind the above mentioned, the Plenum of the Constitutional Court considers that in criminal proceedings there must be strict compliance with the requirements of Article 21 of the Constitution, Article 26 of the CPC, as well as the relevant provisions of the Law on the State language of the Republic of Azerbaijan and the Decree "On perfection of measures for the use of the state language".
As it gets evident from request, in the case of criminal proceedings in the territory of the Republic of Azerbaijan in the state language, the procedural status of the person holding the Azeri language but not being able to read the alphabet Latin script, shall not be covered by the concept of "parties to criminal proceedings who do not know the language of the criminal proceedings”, and within individual procedural assistance he should get the assistance of not translator but a specialist. Thus, there was formed the practice of the participation of a specialist in the criminal process to familiarize with the materials of the criminal prosecution of those who do not know how to read documents implemented in Latin graphics.
In this connection, it should be noted that the CPC does not provide for obligation to provide an interpreter to a suspect or the accused possessing oral Azeri language but not knowing the alphabet with Latin graphics. This has the objective reasons. In Article 7.0.29 of CPC the expert and translator are among persons participating in criminal proceedings and there are determined their particular functions and purposes. Thus, in accordance with Article 96.1 of CPC A specialist shall be a person who has no personal interest in the proceedings, appointed by the prosecuting authority to assist in investigative and other procedures through his special knowledge and skills in science, technology, the arts and other professional fields, with his consent.
For example, a teacher participating in the interrogation of a minor victim, suspect or accused or witness, is considered a specialist. An expert may be appointed from among those proposed by the parties to criminal proceedings. According to Article 99.1 of the CPC, The interpreter shall be a person who has no personal interest in the criminal proceedings and is appointed with his consent by the prosecuting authority to translate the case documents as well as all the verbal exchanges held during court hearings and investigative or other procedures. The interpreter may be appointed from the list of interpreters proposed by the parties to the criminal proceedings.
As one can see, within the meaning of the law, the mission of interpreter is a translation from one language to another and a specialist’s mission consist of assisting the implementation of the criminal justice process, taking advantage of the specialized knowledge and skills. In Articles 26.2, 90.7.11, 90.7.12, 91.5.11, 91.5.12, 99.1 and 99.2 of the CCP provides for interpreter for anyone who does not speak the language in which the criminal proceedings is held. According to the requirement of Article 99.2 of this Code, the interpreter shall have fluent knowledge of the language used during the court proceedings and the target language. .
The Plenum of Constitutional Court notes that in a criminal trial one should inform, about the contents of documents drawn in official language, the person who possesses the oral Azeri language but is not acquainted with the Latin alphabet. At first sight there is the inevitability of the process of transliteration. Transliteration means the writing of one alphabet letters in other alphabets. In language science there are types, principles and rules of transliteration. Transliteration is not translation of words or text but the technical transfer from one graphical system to another. A more accurate transliteration of the texts can be produced by philologists who have knowledge in language science.
For a transfer from the old Cyrillic to modern Latin Azeri the special knowledge is required. So, during transfer within Azeri language from Cyrillic to Latin alphabet the transliteration of specialist has already been used. The transition from Cyrillic to Latin alphabet has finished and there are rules for writing Azeri words in Cyrillic by Latin graphics.
The Plenum of the Constitutional Court stresses that issue of communication of documents in the official State language to the suspect or accused not knowing the Latin graphics must be approached from the point of view of effective tools for the protection. In criminal justice to the suspect or accused there shall be allocated enough means to build his defence at the proper level. These tools include: familiarization with the materials of the case; a clear understanding of the accusation brought against him; making any procedural actions etc.
In the decision on the case of Kamazinski v. Austria of December 19, 1989, the European Court of Human Rights found the violation of subparagraph “a” of paragraph 3 of Article 6 of the Convention stated Paragraph 3 (e) (art. 6-3-e) signifies that a person "charged with a criminal offence" who cannot understand or speak the language used in court has the right to the free assistance of an interpreter for the translation or interpretation of all those documents or statements in the proceedings instituted against him which it is necessary for him to understand or to have rendered into the court’s language in order to have the benefit of a fair trial. However, the European Court of Human Rights noted that by giving to complainant a counsel who speaks the language of trial for the purpose of protection the State implements the requirements of subparagraph a of paragraph 3 of Article 6.
More effective assistance to the suspect or accused who possesses oral Azeri language but does not know the alphabet with Latin graphics can be rendered by his lawyer (Defender), a member of the Bar Association of the Republic of Azerbaijan participating in the criminal process, knowing the State language fluently, and performs the interests of the defence.
From this point of view, the Plenum of the Constitutional Court considers that the body conducting the criminal proceedings, in the interests of justice must ensure the suspect or the accused possessing oral Azeri language but not knowing the Latin alphabet, with counsel.
According to the legal positions formed by the Plenum of Constitutional Court concerning interpretation of certain provisions of Article 92.12 Criminal Procedure Code of Republic of Azerbaijan of May 20, 2011, the right to protection, together with the legitimate interest of the person is also a guardian of the interests of justice and represents the social value. Since the legal relationships arising in connection with getting of legal aid reflect the public interest, it indicates the State of abandonment to its constitutional obligations. This requires the adoption of positive measures for the protection of the rights of individuals by the State when necessary. In this sense, the need to ensure the right of the accused to high qualified legal assistance, fair and thorough investigation of the circumstances of the case and ultimately is aimed at the rational administration of justice.
In its decision on the case Lagerblom vs Sweden of January 14, 2003, the European Court of Human Rights noted that the authorities conducting the criminal process by assigning to the suspect or accused a counsel should take into account the specific circumstances of the case.
The Plenum of the Constitutional Court considers that despite knowledge of the language of criminal proceedings a person, deprived of his ability to familiarize with documents by reading them directly because of ignorance of the Latin Azerbi alphabet graphics in which the procedural documents are written, is considered as restricted in his procedural rights. The procedural situation of persons who do not know an alphabet and those not knowing the language should not be equalized. But the securing the of the rights of persons who do not know an alphabet shall not be less than the rights of people who do not know the language of the criminal proceedings. Suspected or accused in this position must be provided by the bodies engaged in the criminal process with a counsel.
According to the above-mentioned the Plenum of the Constitutional Court comes to the following conclusion:
-in criminal proceedings there should be a strict compliance with the above indicated provisions of Article 21 of the Constitution, Article 26 of the CPC and the Law on the State language of the Republic of Azerbaijan and the Decree "On perfection of measures for the use of the state language";
-in the criminal proceedings, the suspect or the accused speaking the State language of the Republic of Azerbaijan but not knowing the alphabet of the language with Latin graphics, for the sake of the interests of justice must be provided with a counsel.
Being guided by part IV of Article 130 of the Constitution of the Republic of Azerbaijan and Articles 60, 63, 65-67 and 69 of the Law of the Republic of Azerbaijan “On Constitutional Court”, Plenum of the Constitutional Court of the Republic of Azerbaijan
DECIDED:
1. In criminal proceedings there should be a strict compliance with the above indicated provisions of Article 21 of the Constitution, Article 26 of the CPC and the Law on the State language of the Republic of Azerbaijan and the Decree "On perfection of measures for the use of the state language";
2. In the criminal proceedings, the suspect or the accused speaking the State language of the Republic of Azerbaijan but not knowing the alphabet of the language with Latin graphics, for the sake of the interests of justice must be provided with a counsel.
3. The decision shall come into force from the date of its publication.
4. The decision shall be published in “Azerbaijan”, “Respublika”, “Xalq Qazeti” and “Bakinskiy Rabochiy” newspapers, and “Bulletin of the Constitutional Court of the Republic of Azerbaijan”.
5. The decision is final, and may not be cancelled, changed or officially interpreted by any body or official.
Chairman Farhad Abdullayev
