ON BEHALF OF THE REPUBLIC
OF AZERBAIJAN
DECISION
OF THE PLENUM OF THE
CONSTITUTIONAL COURT
OF THE REPUBLIC OF AZERBAIJAN
On conformity of Article 53.8 of the Code of Administrative Offences to Constitution and laws of the Republic of Azerbaijan
2 December, 2010 Baku city
attended
by the Court Clerk I.Ismayilov,
representative
of the addressed body – Mahir Mammadov, the senior adviser of
Scientifically-analytical Department of the Staff of Ombudsman,
representative
of respondent body – Ilgar Jafarov, senior adviser of Department for Administrative
and Military Legislation of Milli Majlis of the Republic of Azerbaijan,
expert
– Elshad Nasirov, senior lecturer of the Chair of Constitutional Law of Baku
State University,
specialists
– Abulfat Magerramov, Djeyran Kazimova, Hayala Abbasova, employees of the Ministry
of Social Protection of Population and Labour, Ministry of Finance of the
Republic of Azerbaijan and State Service of Migration,
has
examined in open session via special constitutional proceedings in accordance
with Article 130.VII of the Constitution of the Republic of Azerbaijan the
constitutional case on the basis of inquiry of Ombudsman of the Republic of
Azerbaijan on 30 July 2010 on conformity of Article 53.8 of the Code of
Administrative Offences to Articles 25, 71, 79, 147 and parts I and III of the
Constitution of the Republic of Azerbaijan.
Having heard the report of Judge S.Hasanova and statements of the representatives of the parties and opinion of expert and specialists, studied materials and examined the case, the Plenum of the Constitutional Court of the Republic of Azerbaijan
DETERMINED AS FOLLOWS:
Ombudsman
of the Republic of Azerbaijan in its inquiry to the Constitutional Court of the
Republic of Azerbaijan (hereinafter referred to as Constitutional Court) asked
for verification of conformity of Article 53.8 of the Code of Administrative
Offences (hereinafter referred to as CAO) approved by the Law of the Republic
of Azerbaijan of 11 July 2000 to Articles 25, 71, 79, 147 and parts I and III
of the Constitution of the Republic of Azerbaijan (hereinafter referred to as
the Constitution).
According
to Article 53.8 of the CAO involving of the foreigners or stateless persons by
the employer to the work without obtaining individual permits with violation of
the requirements of the legislation involves penalization on officials at the
rate of thirty thousand to thirty five thousand manats.
According
to the conclusion of a applicant in view of the fact that expression “employer”
provided in challenged norm covers the legal person, individual and official
and that the upper limit of the size of a penalty is set by provisions of the
general part of CAO, and penalty application against them penalty “at the rate
from thirty thousand to thirty five thousand manat” for the specified
administrative offense, violating the rights of individuals and officials does not
correspond to the criteria of justice which are put forward against the
normative legal act, and do not correspond to the abovementioned provisions of
the Constitution.
Plenum
of the Constitutional Court, in connection with the inquiry considers necessary
to note the following.
The
legislation on administrative offenses is based on the Constitution, the
universally recognized international legal norms and principles. Tasks of this
legislation include protection of the rights and freedoms of the person and the
citizen, his health, sanitary and epidemiologic wellbeing of the population,
public moral, property, economic interests of persons, a public order and
public safety, environment, ruled managements, strengthening of legality and
prevention of administrative offenses.
According
to Article 3 of the CAO, only person, who was declared guilty for committing
administrative violations under this Code and had performed a deed (action or
inaction) having all other signs of an administrative violation, shall be
called to account and punished.
According
to Article 12 of the CAO an administrative violation is characterised as a
guilty (deliberate or careless) deed (action or inaction), infringing upon
social relations protected by this Code, which would involve an administrative
liability.
The
persons who have reached 16 years upon performing the administrative violation
shall be called to account for an administrative violation. Foreigners and
persons without citizenship are called to account for administrative violations
committed in the territory of the Republic of Azerbaijan as per generally
accepted rules. Officials bear administrative responsibility for administrative
violations connected with non-fulfillment or improper fulfillment of their
duties. Legal persons including foreign legal persons bear administrative
responsibility for administrative violations under this Code as per generally
accepted rules (Articles 15.1, 15.6, 16 and 17 of the CAO).
According
to Article 69.I of the Constitution, foreigners and stateless persons staying
in the Republic of Azerbaijan shall enjoy all rights and fulfil allduties equally
with citizens of the Republic of Azerbaijan, unless otherwise
provided by law or international treaty to which the Republic of Azerbaijan
is a party.
Bases
of implementation of the right to work of foreigners and stateless persons it
is regulated by the labor legislation of the Republic of Azerbaijan. According
to Article 13.1 of the Labour Code of the Republic of Azerbaijan (hereinafter
referred to as Labour Code) foreign citizens and stateless persons who have
entered into employment contracts are enjoy the same rights and have the same
obligations as defined in this Code, regardless of their length of stay in the
Republic of Azerbaijan, unless provided otherwise by law or an international
treaty to which the Republic of Azerbaijan is a party.
Employers
can involve the foreigner or the stateless person only after obtaining private
permission for implementation of paid labor activity on the territory of the Republic
of Azerbaijan, in an order established for them by the legislation (Article 13.4
of the Labour Code).
At
the same time, in the labor legislation fundamental obligations and employer's
liability, and also powers of the body exercising the state control in the
field of labour are defined. According to Article 12.2 of the Labour Code, the
employer violating the rights of workers, not fulfilling the obligations under
the employment contract, employing the persons who have not reached 15 years
age, attracting children to the activity dangerous to their life, health and a
spiritual condition, and also not observing the requirement of the present Code
in the order defined by the legislation is attracted to the corresponding
responsibility. According to Article 15.2 of the same Code the authority
implementing state control over the execution of Labour Legislation have the
right to require those persons guilty of Labour legislation violations to cease
their violations of the law, to hold these persons accountable in cases and the
manner determined by the Code of Administrative Offences of the Republic of
Azerbaijan and to table before the relevant authorities whether to hold said
persons liable for other infringements.
As
it is stated above, according to requirements of the labor legislation,
foreigners and stateless persons, can be involved by the employer via procedure
defined by the legislation only after obtaining the corresponding permission
from executive authority. Besides assignment on the employer of this duty, the
legislator also established administrative responsibility for non-execution of
this duty.
Discussed
administrative responsibility is defined in Article 53.8 of the CAO. In the
text of this Article for violation of requirements of the labor legislation the
employer, is specified as the subject imposed to a penalty being a type of an
administrative penalty.
According
to Article 3 of the Labour Code, the employer is a completely capable owner or
appointed (authorized) to them the director, the authority, having the right to
conclude, terminate or change conditions of the employment contract (agreement)
with workers, and also the individual who is engaged in business activity
without creation of the legal entity.
As
evident, the legal persons, individuals and officials are bear responsibility for
involving to work of the foreigner or the stateless person, with violation of
requirements of the labor legislation, and also without obtaining private
permission.
However,
in Article 53.8 of the CAO administrative responsibility provided for an
offense, concerns to the employer and precisely the size of a penalty applied
behind this offense being administrative penalty concerning legal person,
individual and official is not specified.
In
specified Article, in a case when expression “employer” is perceived only as
legal persons, individuals and officials, for commission of identical
administrative offense remain out of bounds of responsibility, and it in turn
does not promote execution of duties of the legislation of administrative
offenses and achievement of the objectives of an administrative penalty.
Thus,
the administrative penalty is a measure of responsibility and is applied with
the objective to bring up the person who has committed an administrative
violation in the spirit of following the Law and also to prevent committing the
new administrative violations both by aforementioned person and the others (Article
22 of the CAO).
Along
with that definition by the CAO of an administrative penalty as one of types of
an administrative penalty, there its criteria, the bottom and upper limits of
administrative penalties imposed for administrative offenses also are
specifically defined is given.
According
to Article 25.1 of the CAO the administrative penalty is the amount of money
fixed by judges, an authorized body (official) and is forcedly withdrawn from
the person who was found guilty, in favour of the state in cases provided by
this Code.
According
to Article 25.5 of the CAO the amount of penalty measured at cost of the item,
being a direct object of the administrative violation may not exceed hundred
percent of the item value, and the amount of penalty measured at the sum of
outstanding credits, taxes—one hundred and fifty percent of these credits and
taxes.
It
should be noted that such distinction is directed on an individualization of
the infliction of penalty being a type of an administrative penalty and determining
of its sum, taking into account nature of perfect offense, the personality made
offense, degrees of his guilt, the property status, softening and aggravating
circumstances.
However,
the sum of a penalty provided by Article 53.8 of the CAO exceeds the size of a
penalty of the Code established by Article 25.5 for individuals ten times, and
concerning officials three times.
At
the same time, in view of the fact that expression “employer” in Article 53.8
of the CAO means concept legal person, individual and the official and on the
basis of Article 25.5 of the Code, penalty application in the form of an
administrative penalty for individuals of three thousand manats, for officials
of ten thousand manats for the specified administrative offense is not
excluded.
Plenum
of the Constitutional Court considers that such solution of a question is
violation concerning individuals and officials and does not correspond to the
principle of the right and justice at adoption of normative legal acts (the
equal relations to equal interests) So, the upper limit (thirty five thousand
manats) of penalty provided by the sanction of Article 53.8 of the CAO, makes
not the maximum limit (fifty thousand manats) of penalty established by the
general part of this Code for legal entities, and only 70 percent from it.
However, in sanctions of challenged article, because of not fixing of the size
of an administrative penalty concerning individuals and officials for the same
administrative offense, purpose of the upper limit of the penalty provided in Article
25.5 of the CAO for these persons is allowed. And it, in turn, can lead to
violation of the principles of equality before the law, a ban of restriction of
the rights and freedoms of the person and the citizen reflected in the
Constitution.
Along
with the specified it should be noted that in sanctions of the majority of
articles of special part of CAO providing responsibility for administrative
offenses made various subjects, responsibility of legal persons, individuals
and officials was differentiated. Not coincidentally, in Articles 53.1, 53.9
and 53.10 of the Code, providing separate administrative offenses for violation
of the labor legislation, responsibility of legal persons and officials acting
as “employer” it is defined separately.
However,
as opposed to this rule, despite of acting of individuals and officials along
with legal entities as “employer” as subject of the administrative offense
provided by Article 53.8 of the CAO, in the sanction of this article their
responsibility is not distinguished, concerning each of three subjects the sum
of an administrative penalty is generalized.
Such
circumstance, creating uncertainty and a contradiction between provisions of
the general and special parts of CAO, breaks the principles of respect of the
rights established by these Code and freedoms of the person and the citizen,
legality, equality before the law, justice and the principles directed on prevention
of administrative offenses.
One
of the basic principles of the legislation about administrative offenses is the
highest mark of the rights and freedoms of the person and the citizen. CAO provides
prevention by the state authorities (officials) violation of rights and
freedoms of human and citizen and respect for these rights and freedoms (Articles
5.1 and 5.2 of the CAO). According to Article 7.1 of the CAO, the persons who
have committed administrative violations are equal before the Law.
According
to Article 9.1 of the CAO reflecting in the principle of justice, the penalties
applied with regard to the person who has committed an administrative
violation, must be fair, i.e., to correspond to the character of the
administrative violation, circumstances of commitment, to be legal and proven.
It
is necessary to take into account that legal regulation of various branches of
the right has to be based on the principles of democracy reflecting the nature
and essence of the constitutional state provided in the Constitution, providing
the rights and freedoms of the person and the citizen. The constitutional
principles it is inseparably linked among them and form uniform set of the
legal origin being of identical importance for implementation, protection and guarding
of the legitimate interests of legal subjects.
The
basis of the principles reflected in the CAO is made by provisions of the
Constitution, including part I and V of Article 25, part I and II of Article 71
of the Constitution. According to the specified norms, everyone is equal before
the law and court. Everyone is guaranteed equal rights in any proceedings
before state authorities and bearers of public authority
that decide upon his rights and duties. To observe and protect the rights and
freedoms of the person and the citizen, fixed in the Constitution an obligation
of bodies of legislative, executive and judicial authorities. No one may
restrict the exercise of rights and freedoms of man and citizen.
These
principles are reflected in the international acts connected with human rights,
including in the Universal Declaration of Human Rights, the International Covenants
“On civil and political rights” and “On
economic social and cultural rights”, in the European Convention on Protection
of Human Rights and Fundamental Freedoms.
Plenum
of the Constitutional Court notes that the legislator at fixing of
administrative offense and other offenses, at imposing of responsibility for
their commission possesses appropriate authority. However, in all cases such
regulation has to be carried out according to a principle of equality,
including with the Constitution requirement that normative legal acts have to
be based on the right and justice (the equal relations to equal interests) and should
not contradict to Constitution (parts I and III of Article 149 of the
Constitution). Requirements concerning legal certainty follow from the
constitutional principles concerning a rule of law, and that normative legal
acts have to be based on the law and justice.
According
to the formed legal position of the Constitutional Court concerning an essence
and value of the principle of legal certainty, the principle of legal certainty
acts as one of the basic aspects of the rule of law. It is very important that
any law or any of its provisions should meet with a principle of legal
certainty. Norms of law should be unequivocal and clear for ensuring of it. It,
in its turn, should give to everyone a confidence of protection of rights and
freedoms and possibility to foresee the actions of applicators of law. Requirements
concerning legal certainty follow from the constitutional principles of a
prevalence of the right, conformity of regulatory legal acts to the law and
justice (to equal relations to equal interests). The uncertainty of the
contents of legal norm, which create at application of law the possibility for
unlimited opinions, leads to infringement of rule of law which should base on
one or another normative legal act, principles of equality before the law and
court (decision of Plenum of the
Constitutional Court of 22 September 2008 “On interpretation of provisions of
Article 21 of the Law “On Basics of Call-up to Military Service in the Republic
of Azerbaijan” and Article 180.3 of the Code of the Republic of Azerbaijan “On
Execution of Punishments”).
Along
with it, Plenum of the Constitutional Court once again notes that at determining
by legislature of a type of an administrative penalty for any administrative
offense, the principles of proportionality and the balances being components of
the rule of law which is reflected in the Constitution also have to be
considered.
According
to abovementioned, Plenum of the Constitutional Court comes to such conclusion
that Article 53.8 of the CAO has to be recognized as null and void because of
discrepancy to parts I and V of Article 25, to parts I and II of Article 71,
parts I and III of Article 149 of the Constitution.
According
to Article 94.1.17 of the Constitution the Milli Majlis of the Republic of
Azerbaijan defining crimes and other violations of law, and establishing
liability for the commission thereof.
Plenum
of the Constitutional Court considers that Article 53.8 of the CAO has to be
brought into accord with parts I and V of Article 25, parts I and II of article
71, parts I and III of article 149 of the Constitution, it has to be
recommended to Milli Majlis of the Republic of Azerbaijan to establish an
administrative penalty for the administrative offense provided in this article
separately for individuals, legal persons and officials.
In
view of the fact that implementation of this recommendation will require a
certain term, Plenum of the Constitutional Court according to part X of Article
130 of the Constitution considers as expedient to recognize Article 53.8 of the
CAO as null and void since 1 June 2011.
Being guided by Article 130.7 of the Constitution of the Republic of Azerbaijan, Articles 52, 62, 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.
To recognize Article 53.8 of the CAO as null and void because of discrepancy to
parts I and V of Article 25, parts I and II of Article 71, parts I and III of
Article 149 of the Constitution.
2.
To recommend to Milli Majlis of the Republic of Azerbaijan to bring Article
53.8 of the CAO to conformity with parts I and V of Article 25, parts I and II
of article 71, parts I and III of article 149 of the Constitution, to determine
an administrative penalty for the administrative offense provided in this Article
separately for individuals, legal persons and officials.
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 can not be cancelled, changed or officially
interpreted by any body or official.
