ON BEHALF OF THE REPUBLIC OF AZERBAIJAN
DECISION
OF THE PLENUM OF THE CONSTITUTIONAL COURT
OF THE REPUBLIC OF AZERBAIJAN
On Interpretation of notion of “person who have committed a crime for the first time that does not represent a significant public danger” fixed in Articles 72, 73 and 74 of the Criminal Code of the Republic of Azerbaijan
25 December 2009 Baku city
The Plenum of the Constitutional Court of the Republic of Azerbaijan composed of Judges F.Abdullayev (Chairman), F.Babayev, S. Hasanova, B.Qaribov (Reporter Judge), R.Qvaladze, E.Mammadov, I.Najafov, S.Salmanova and A.Sultanov;
attended by the Court Clerk I.Ismayilov,
the legal representatives of interested parties: K.Alekberov, Judge of the Court of Appeal of Shirvan District, I.Jafarov, employer of the Department for Administrative and Military Legislation of Milli Majlis of the Republic of Azerbaijan, R.Shamsizade, Professor of the Criminal Law Board of Baku State University,
the invited persons - representative of the Prosecutor"s Office of the Republic of Azerbaijan, G.Bayramli and representative of the Supreme Court of the Republic of Azerbaijan, R.Alekperov
has examined in open session via special constitutional proceedings in accordance with Article 130.V of the Constitution of the Republic of Azerbaijanthe constitutional case on inquiry of the Court of Appeal of Shirvan District concerning the interpretation of notion of “person who have committed a crime for the first time that does not represent a significant public danger” fixed in the Articles 72, 73 and 74 of the Criminal Code of the Republic of Azerbaijan.
Having heard the report of Judge B. Garibov and statements of representatives of interested parties, opinions of expert and invited to court session persons, studied materials and examined the case, the Plenum of the Constitutional Court of the Republic of Azerbaijan
DETERMINED AS FOLLOWS:
According to the decision of Lachin district court of January 27, 2008 as a result of the dispute which arose because of use of a pasture land on October 15 and 17, 2008 according to Article 73 of the Criminal Code of the Republic of Azerbaijan (hereinafter referred to as CC) in connection with reconciliation on criminal case of S.Ahmedova"s charge on the basis of Article 128, M.Ahmedova, A.Ahmedova, I.Ahmedalieva, S.Gasanova and M.Gasanova on the basis of Articles 128 and 132 of CC the given persons were released from the criminal liability, and criminal prosecution in their relation was suspended. The court has come to a conclusion that as a result of absence of a sentence in force, defining fault of accused persons application of Article 73 of CC is possible from the point of view of Article 63 of the Constitution of the Republic of Azerbaijan (hereinafter referred to as Constitution).
The Deputy of the Prosecutor General of the Republic of Azerbaijan submitted the appeal protest on the given decision. In the protest, referring to Articles 16.1,17.1 and 27.1 and, marking both repeated and various crimes committed by a specified persons, necessity of their attraction to the criminal liability for each crime forming cumulative crimes, possibility of application of Article 73 of CC only concerning the person who have committed a crime for the first time that does not represent a significant public danger, was expressed the request for cancellation of the decision of court of the first instance (except for one person) and condemnation of accused persons.
Considering case on the basis of given protest the Judicial board on criminal cases and cases on administrative offences of Shirvan Court of Appeal addressed to the Constitutional Court with the view of interpretation of provision “person who have committed a crime for the first time that does not represent a significant public danger”, provided by Articles 72,73 and 74 of the Criminal Code of the Republic of Azerbaijan for elimination of disputes and ambiguities which arise in judicial practice by application of the given norms in relation of the person who has no previous convictions, in case of commitment by him one or several crimes which do not represent significant public danger and has no legal assessment.
In connection with the complaint Plenum of the Constitutional Court considers necessary to refer to some rules of the Constitution, the criminal, criminal proceeding legislation and also to consider the international agreements and practice of the European Court of Human Rights.
According to Article 63.1 of the Constitution everyone is entitled for presumption of innocence. Parts II and V given Article define that a person under suspicion of crime must not be considered guilty. Nobody may be accused of crime without the verdict of law court.
Being the conventional right, it is fixed in Article 11.1 of the Universal Declaration of Human Rights, Article 14.2 of the International Covenant on Civil and Political rights and Article 6.2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to the given provisions everyone charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.
The presumption of innocence also is fixed in Article 21 of the Code of Criminal Procedure of the Republic of Azerbaijan (hereinafter referred to as CCP). According to the given Article, any person suspected of committing an offence shall be found innocent if his guilt is not proven in accordance with this Code and if the court did not adopted a final decision to that effect (Article 21.1 of CCP).
Even if there are reasonable suspicions as to the guilt of the person, this not causes the latter to be found guilty. The accused (the suspect) receives the benefit of any doubts which cannot be removed in the process of proving the charge in accordance with the provisions of this Code, within the appropriate legal proceedings. He likewise receives the benefit of any doubts which are not removed in the application of criminal law and criminal procedure legislation (Article 21.2 of CCP).
The accused shall not be obliged to prove his innocence. It is for the prosecution to prove the charge or to refute the evidence given in defense of the suspect or the accused (Article 21.3 of CCP).
Some other norms of CCP, including provisions of Articles 138.2, 139.0.4, 233.11, 351.1-351.4 also provide a presumption of innocence.
Thus, the presumption of innocence fixed in the Constitution, the international agreements and the state legislation excludes recognition of the person guilty beyond of criminal condemnation of this person by court. In this sense a presumption of innocence, reflecting an objective legal status, protects the face involved as accused or suspected of commission of crime in its early recognition as guilty of commission of crime. The substance of the given guarantee influences on regulation of criminally-procedural relations, and in the future and on an establishment and realization of criminally-legal relations. Besides, the presumption of innocence represents itself as one of the guarantees fixed in the Constitution of other human rights, and also guarantees of protection of honor and dignity of everyone, provided in Article 46.
This position has found the reflection in the decision of the European Court of Human Rights of February 6, 2007 on case of Garycki v. Poland. In the given decision it was specified that the presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of a fair trial that is required by paragraph 1. The presumption of innocence will be violated if a judicial decision or a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he was guilty before he was proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court or the official regards the accused as guilty. A premature expression of such an opinion by the tribunal itself will inevitably run foul of the said presumption (Paragraph 66).
However conclusions reflecting opinion on guilt of the person should differ from a conclusion expressing «the suspicious status». The first conclusion breaks presumption of innocence, last conclusion in the several cases considered by court (paragraph 62 of the decision of August 25, 1987 on case of Lutz v. Germany and paragraph 31 of the decision of March 26, 1996 on case of Letsher v. Netherlands) was recognized as admissible.
The fact that constitutional control bodies of some other member states of the Council of Europe sharing the given position deserves a special attention. Thus, Federal Constitutional Court of Germany in the decision of December 1, 1986 specified that act punished by punishment can be established without realization of criminal justice and the formulation of specific conclusions for the given condemnation does not contradict to presumption of innocence even with a case of an establishment of the given act before definitive conviction of court.
On the basis of the aforesaid, it is possible to come to a conclusion what to formulate the suspicious status of commitment by the person of a crime is possible as during preliminary investigation, and during judicial trial. Thus, in case of presence of firm well-founded suspicions of previously commitment of one or several crimes and in case of bringing an action against the given person as a result of these suspicions subjection of the person to criminal prosecution as the person before committed a crime without the sentence of court which has come to effect is possible. It does not contradict to presumption of innocence. The issue of guilt or innocence of the person decides by a sentence of court make on the merits of the case.
From this point of view, despite an establishment during preliminary investigation of firm well-founded suspicions on commitment of several criminal acts, the recognition on the basis of a presumption of innocence of act as for the first time made referring to no make decision which has come to effect, at least on one of these crimes can lead to refusal as to the objective validity of frequency of committing of crimes or occurrence of set of crimes.
And it depriving of the content of institutes «frequency of committing of crimes», provided in Article 16 and «set of crimes» reflected in Article 17 of acting Criminal Code, does possible application only institute of relapse of crimes in connection with crimes not providing frequency as qualifying sign in an especial part.
Thus, according to Article 16.3 of CC the crime does not be admitted as repeatedly committed, if for crime the person in the order provided by the law was released from the criminal liability or the previous conviction for the crime committed by the person was extinguished or removed. Article 17.1 of CC establishes that Set of crime forms include two or more crimes, provided by various Articles of the present Code, and if a person was not condemned or released from the criminal liability on the lawful grounds for committed crimes, and also if time for attraction to criminal liability on one of these crimes have not expired.
Apparently, for a recognition of the person committed two or more crimes as committed a repeated crime or non beginning of sets a crime, the legislator demands that, implemented in its relation criminally-legal measures for earlier committed act (acts) the begun criminal prosecution has been suspended (or criminal prosecution on the basis of Articles 39 or 40 of CC did not begin) or the previous conviction imposed on it after condemnation has been extinguished or removed and thus criminally legal consequences of committed act have been eliminated. The given approach follows from a duty of plenipotentiary state structures to pursue and reach punishments for all crimes made by the guilty person (including cases of presence of frequency of crimes or set of crimes), to protect interests of the person, society and state from criminal encroachments (part IV, VII, XI ofArticle 127 of the Constitution, Article 5,6,7,8 and 9 of CC) thus strictly observing principles of legality of equality before the law, responsibility for fault, justice and humanism, both fixed in the Constitution, and found the reflection in norms of CC and as a whole not extending on justice.
Thus, the legislator has connected the person not having a previous conviction made or not committed a repeated crime or occurrence-nonoccurence of set of a crime as a rule with legal consequences of criminal prosecution of the given person. And it in turn has special significance for application of institute of relief from criminal liability of given person in a case not bringing an action against it for one or several crimes which does not represent a significant public danger made earlier as a result of firm well-founded suspicions on criminal prosecution spent.
According to Articles 72 and 73of CC the person who have committed a crime for the first time that does not represent a significant public danger, can be released from the criminal liability if he has voluntary pled guilty, actively promoted disclosing of a crime, has indemnified or has otherwise removed the harm caused as a result of a crime or if he has reconciled with victim and has compensated cause to him or has removed caused harm. Also, according to Article 74 the person who have committed a crime for the first time that does not represent a significant public danger or less serious crime, can be released from a criminal liability if will be established, that committed act or a person who has made act owing to change of conditions, is ceased to be socially dangerous.
On the basis of Articles 40.2 and 43.3 of CCP a criminal case may not be commenced or may be discontinued if the person is absolved of criminal responsibility by decision of the preliminary investigator and investigator, with the agreement of the prosecutor or during the trial.
Similar privilege treatment of the legislator to crimes not represent a significant public danger, crimes connected with change of situation, and also less grave crimes, unlike the relation to grave and especially grave crimes, serves to lawful public interest. Thus, in a case if the person who has made guilty acts, concerning a category of such crimes, satisfying a condition specified in norms of the given criminal law, proves to be not so not representing to public danger, its correction in order to avoid similar behavior and observance of the rules of coexistence accepted by a society is reached, thus without involving it in the criminal liability.
Such treatment creates restriction for possibility of released from the criminal liability fixed in Articles 72, 73 and 74 of CC, for persons before committed a crime that not received a legal estimation. For this reason, the right of the person to release from the criminal liability, for the first time subjected to criminal prosecution, even at commitment of several criminal acts, should not be limited.
Plenum of the Constitutional Court considers that the right to release from the criminal liability for the person to whom accusation for earlier made one or several crimes which are not representing a significant public danger has not been brought, or owing to change of situation or less grave crime, fixed in Articles 72, 73 and 74 of CC, should be observed.
Considering the above-stated Plenum of the Constitutional Court considers that notion of «person who have committed a crime for the first time that does not represent a significant public danger » fixed in Articles 72, 73 and 74 of CC covers the person for the first time committed one of this kind of crimes or such crimes but with which relation for the given acts has not been accused.
Also, from the point of view of criminal law, it is necessary to consider that in case of absence or, removals or previous conviction repayments, the crime which is not representing the significant public danger is considered as first time committed.
Being guided by part VI of Article 130 of the Constitution of the Republic of Azerbaijan, Articles 60, 62, 63, 65-67 and 69 of the Law of the Republic of Azerbaijan “On Constitutional Court”, the Plenum of the Constitutional Court of the Republic of Azerbaijan
DECIDED:
1. The notion of “person who have committed a crime for the first time that does not represent a significant public danger” provided for by Articles 72, 73 and 74 of the Criminal Code of the Republic of Azerbaijan shall be regarded to the person who for the first time committed one of this kind of crimes or several crimes for which he was not accused.
2. The decision shall come into force from the date of its publication.
3. 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’.
4. The decision is final and can not be cancelled, changed or officially interpreted by any body or official.
Chairman Farhad Abdullayev
