15.03.2022

Plenum of the Constitutional Court of the Republic of Azerbaijan, chaired by Farhad Abdullayev, held a session.

At the court session was examined the constitutional case based on the request submitted by the Court of Appeal of Baku city on interpretation of Article 183.2 of the Code of Execution of Punishments of the Republic of Azerbaijan in connection with Articles 142.1, 383.1, 408.3 of the Criminal Procedure Code of the Republic of Azerbaijan and Article 82.4 of the Civil Procedure Code of the Republic of Azerbaijan.

Having heard the report of Judge R.Gvaladze, studied and discussed reports of representatives of interested parties – Chairman of Court of Appeal of Baku city M.Akberov, conclusions of specialists Chairman of the Criminal Board of Supreme Court H.Nasibov, Chief of the Department of Legal Support and Human Rights of the Prosecutor General's Office A.Osmanova, and Members of the Presidium of the Bar Association of the Republic of Azerbaijan M.Mustafayev and V.Babayev the Plenum of Constitutional Court of the Republic of Azerbaijan adopted decision.

The decision states that according to the meaning of Article 139 of the Criminal Procedure Code of the Republic of Azerbaijan, the acquisition of property belonging to the accused and confiscated as a result of the commission of a crime or the existence of income from this property, the presence of weapons, tools or other means used or intended to be used for the commission of a crime, and the existence of property obtained as a result of a crime committed by the accused, even if it does not belong to him/her must be proved during the criminal proceedings.

In accordance with Article 299.3.2 of the Criminal Procedure Code of the Republic of Azerbaijan, during the preparatory hearing the court shall examine whether the requirements of this Code were violated during the investigation. In this case, the court must give an appropriate legal assessment of the measures taken to secure the civil claim and possible special confiscation. If this does not happen at the preliminary hearing, the court must verify that the listed property actually belongs to the accused and in the case when there are a circumstances confirming that the arrest was imposed on the property not belonging to the accused, a legal assessment must be made as to whether the property was acquired as a result of the crime committed by the accused and a decision must be made to deregister the property, release it from custody and return it to its rightful owner.

Special confiscation shall be applied to property belonging to a person who is not the accused or who is not legally liable for his/her actions, in cases when there is substantiated evidence that the property was acquired by that person under the conditions listed in Article 99-1.3 of the Criminal Code of the Republic of Azerbaijan.

In accordance with Part I of Article 60 of the Constitution of the Republic of Azerbaijan and the requirements of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, it was decided to recommend to the Milli Majlis (Parliament) of the Republic of Azerbaijan to regulate the right to appeal to a court of a person whose interests have been affected by a court decision and who has not been involved in criminal proceedings.

In order to ensure the right to appeal to the court provided for in Part I of Article 60 of the Constitution of the Republic of Azerbaijan and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, until the issue is resolved in accordance with the law and in the case of a significant violation of his/her rights and legally protected interests a person who has not been involved in criminal proceedings, whose interests have been affected by a court decision, may be involved as a third party who has made independent claims on the subject matter of the dispute.

Such involvement shall be carried out in accordance with Article 55.1 of the Civil Procedure Code of the Republic of Azerbaijan, taking into account the legal positions reflected in the descriptive and substantiating part of this Decision.

Taking into account the legal positions reflected in the descriptive and substantiating part of this Decision and in accordance with Article 183.2 of the Code of Execution of Punishments of the Republic of Azerbaijan, it should be recommended to the Milli Majlis (Parliament) of the Republic of Azerbaijan to settle the dispute over who owns the property to be confiscated.

The decision comes into force from the date of its publication, is final, and may not be cancelled, changed or officially interpreted by any institution or official.