ON BEHALF OF AZERBAIJAN REPUBLIC
D E C I S I O N
OF THE CONSTITUTIONAL COURT
OF AZERBAIJAN REPUBLIC
On Interpretation of Articles 67, 70 of the Criminal Procedure Code and Articles 179, 181 of the Criminal Code of Azerbaijan Republic as to their Conformity with Article 66
of the Constitution of Azerbaijan Republic
29 December, 1998 Baku city
The Constitutional Court of Azerbaijan Republic composed of Kh.Hajiyev (Chairman), Judges: F.Babayev, B.Garibov, R.Gvaladze, E.Mamedov, S.Salmanova, А.Sultanov (Reporter Judge),
joined in the proceedings by: the Court Clerk I. Ismayilov;
N.Allahverdiyev, Deputy Prosecutor General of Azerbaijan Republic;
legal representatives of the subject interested in special constitutional proceedings: N.Safarov, Head of the Administrative and Military Legislation Department of Milli Majlis;
expert: F.Samandarov, Head of Criminal Law Board of the Law faculty of the Baku State University named after М.E.Rasulzade, doctor of jurisprudence, professor;
in accordance with Article 130.4 of the Constitution of Azerbaijan Republic has examined in open judicial session via special constitutional proceedings the case by the petition of the General Prosecutor"s Office of Azerbaijan Republic of 30 November 1998 N 11/111 concerning the interpretation of Articles 67 and 70 of the Criminal Procedure Code of Azerbaijan Republic as to their conformity with Article 66 of the Constitution of Azerbaijan Republic.
Having heard and discussed the report of Judge А.Sultanov, statements of the representatives of the interested subjects N. Allakhverdiyev and N. Safarov, conclusion of the expert F. Samandarov, the Constitutional Court of Azerbaijan Republic
D E T E R M I N E D A S F O L L O W S:
In accordance with Article 66 of the Constitution of Azerbaijan Republic no one can be forced to testify against himself/herself, his/her wife/husband, children, parents, brother, sister.
Article 67 of the Criminal Procedure Code of Azerbaijan Republic prescribes that any person who knows any circumstances on case can be called to testify and he / she is obliged to give evidences he / she possesses and to characterise the personality of the accused.
Article 70 of the Criminal Procedure Code of Azerbaijan Republic stipulates that a witness and a victim shall bear responsibility under Article 181 of Criminal Code for refusal to testify and responsibility under Article 179 of Criminal Code for giving of wittingly false evidences.
In its petition the General Prosecutor"s Office of Azerbaijan Republic asks to clarify the possibility to bring to the criminal responsibility under Articles 179 and 181 of Criminal Code of Azerbaijan Republic the persons listed in Article 66 of Constitution of Azerbaijan Republic in case of commitment of offences stipulated by mentioned Articles of the Criminal Code.
In connection with the petition, the official texts of the mentioned Articles of the Constitution of Azerbaijan Republic, Criminal Procedure Code of Azerbaijan Republic and Criminal Code of Azerbaijan Republic certified by Milli Majlis of Azerbaijan Republic are enclosed to the constitutional case.
From the materials of the case it is evident that:
Article 67 of the Criminal Procedure Code of Azerbaijan Republic stipulates a call of any person as the witness to testify who knows any circumstances on criminal case and the duty to give the evidences about circumstances he / she knows; Article 70 of Criminal Procedure Code stipulates the appropriate responsibility under Article 179 and 181 of Criminal Code of Azerbaijan Republic for refusal to testify and for giving of wittingly false evidences.
According to Article 66 of the Constitution of Azerbaijan Republic nobody can be forced to testify against himself/herself, wife (husband), children, parents, brother, sister.
In connection with these two issues it is necessary to take into account the following:
In accordance with Article 147 of the Constitution of Azerbaijan Republic, the Constitution of Azerbaijan Republic posseses the highest legal power.
The requirements of Article 66 of Constitution of Azerbaijan Republic serve to widen the application of humanistic principles inherent in a democratic society, prevention of disintegration of the related connection in Azerbaijan Republic, what has the great importance from universal and educational points of view for the rights and freedoms of the citizens and also serve for strengthening of family and blood relations.
Articles 67 and 70 of the Criminal Procedure Code of Azerbaijan Republic should be applied in conformity with Article 66 of Constitution of Azerbaijan Republic.
According to provisions of Article 66 of Constitution of Azerbaijan Republic the refusal of the persons listed in above-stated Article to testify or giving of false evidences by virtue of the blood relations during investigation on criminal case, cannot be the reason for bringing them to the responsibility under Articles 179 and 181 of Criminal Code of Azerbaijan Republic on the basis of Article 70 of the Criminal Procedure Code of Azerbaijan Republic.
At the same time, none of the constitutional provisions forbid a person to give voluntarily evidences concerning relatives. There are no barriers to bringing to the criminal responsibility for deliberate giving of false evidences by persons listed in Article 66 of Constitution of Azerbaijan Republic if someone of them gives evidences voluntarily. In connection with Article 66 of the Constitution of Azerbaijan Republic, when giving interpretation of Articles 67, 70 of Criminal Procedure Code of Azerbaijan Republic and Articles 179 and 181 of Criminal Code of Azerbaijan Republic it is necessary to mention Article 82 (non-informing of state crimes) and 180 (non-informing of crimes) of Criminal Code of Azerbaijan Republic.
Being interpreted on the basis of the General Prosecutor"s Office"s petition the issue is directly connected to non-informing of crimes.
Thus, bringing to the criminal responsibility of the persons listed in Article 66 of Constitution of Azerbaijan Republic for refusal to testify on crime committed by their close relatives, should be regarded as compulsion to testify.
On the basis of the above stated and being guided by Article 130.6 of the Constitution of Azerbaijan Republic, Articles 75, 76, 78, 81, 83 and 85 of the Law of Azerbaijan Republic “On Constitutional Court”, the Constitutional Court of Azerbaijan Republic
D E C I D E D:
1. Articles 67 and 70 of Criminal Procedure Code of Azerbaijan Republic, Articles 179, 181, 82 and 186 of Criminal Code of Azerbaijan Republic must be applied in conformity with Article 66 of Constitution of Azerbaijan Republic.
2. When applying Article 67.2 of Criminal Procedure Code of Azerbaijan Republic the requirement of Article 66 of Constitution of Azerbaijan Republic concerning prohibition of compulsion to testify against himself/herself, wife (husband), children, parents, brother, sister must be taken into account.
3. Any person refusing to testify against himself/herself, wife (husband), children, parents, brother, sister, if this person was forced to testify and has given the wittingly false evidences, cannot be brought to responsibility under Article 70 of the Criminal Procedure Code of Azerbaijan Republic and Articles 179 and 181 of Criminal Code of Azerbaijan Republic.
4. The person who cannot be forced to testify can be brought to responsibility under Article 179 of Criminal Code of Azerbaijan Republic for giving false testimonies in case when he/she testifies voluntarily.
5. Taking into account the provisions of Article 66 of Constitution of Azerbaijan Republic, the person, who cannot be forced to testify, cannot bear responsibility under Articles 82 and 186 of Criminal Code of Azerbaijan Republic for non-informing of the crime committed by some of the relatives listed within the above-stated Article of the Constitution of Azerbaijan Republic.
6. The decision comes into force from the date of its publication.
7. The decision is subject to publication in "Azerbaijan" newspaper and “Bulletin of the Constitutional Court of Azerbaijan Republic”.
8. The decision is final and cannot be cancelled, changed or interpreted by any body or official.
Chairman Khanlar Hajiyev
