of February 15, 2008
About interpretation of provision in case of refusal of the state prosecutor and private prosecutor of the criminal prosecution provided in Articles 43.1. 1, 314.2 Codes of penal procedure of the Azerbaijan Republic at the request of Prosecutor's office of the Azerbaijan Republic
Name of the Azerbaijan Republic
Plenum of the Constitutional Court of the Azerbaijan Republic as a part of F. Abdullaev (chairman), F. Babayev, S. Gasanova, B. Garibova (judge-speaker), R. Gvaladze, E.Mamedova, I. Nadzhafova, S. Salmanova and A. Sultanov,
with participation of the court secretary I. Ismaylov,
legal representatives of the interested subjects - the head of department of protection of crown case of the Prosecutor General's Office of the Azerbaijan Republic I. Dzhafarov, the representative of Department of the administrative and military legislation of the Device Millie of Majlis of the Azerbaijan Republic I. Dzhafarov,
the expert - the associate professor of criminal procedure of the Baku state university, Candidate of Law Sciences F.Abbasova, invited to meeting of the judge of the Supreme Court of the Azerbaijan Republic M. Agazade, the judge of the Baku Appeal Court S. Mirzoyev according to part IV of article 130 of the Constitution of the Azerbaijan Republic No. 13/214 considered according to the procedure of special constitutional proceeding in proceeding in open court at the request of Prosecutor's office of the Azerbaijan Republic of October 17, 2007 the constitutional case on interpretation of the provision "in case of refusal of the state prosecutor and private prosecutor of criminal prosecution" provided in Articles 43.1. 1, 314.2 Codes of penal procedure of the Azerbaijan Republic.
Having heard on case the report of the judge B. Garibov, performance of legal representatives of the interested subjects, expert opinions and persons invited to meeting, having studied and having discussed case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic established:
The prosecutor's office of the Azerbaijan Republic in the request specifies that, it agrees reflected in the Code of penal procedure of the Azerbaijan Republic (further - the Code of Criminal Procedure) to the principle of the competitiveness of the parties fixed in part VII of article 127 of the Constitution of the Azerbaijan Republic (further - Constitutions), the court, free from powers of accusatory bias, turned from criminal prosecution authority into the arbitrator fairly and without prejudice considering the criminal cases and materials connected with criminal prosecution on court sessions.
In request, referring on Article 21. 3, 32.2.3, 32.2.8, 38.4 and 41.3 the Codes of Criminal Procedure establishing powers of the party of accusation also the fact that according to requirements of article 43.1 of this Code if during legal proceedings the state prosecutor and the private prosecutor refused criminal prosecution, the court issues the decree on the termination of criminal prosecution concerning the person accused is noted.
The body which sent inquiry based on article 318.1 Code of Criminal Procedure setting limits of legal proceedings specifies that the court has the right to requalify act of the person accused from serious crime on softer criminal action, and also to exclude separate Items from the charge brought against it. From this point of view, at the same time that its powers are connected only with relief of provision of the person accused, it is limited to amount of the held charges by the state prosecutor and there cannot be heavier, than this accusation. Otherwise it can become the reason of transfer of accusatory powers to court, violations of number of the principles, balance between the parties of accusation and protection.
In request it is noted that when considering the case in court, in rare instances, despite partial refusal of the state prosecutor of accusation, such refusal is not accepted by court, the court verdict imposes the penalty which is taken out on the basis of the charge brought during preliminary inquiry.
Thus, the Prosecutor's office of the Azerbaijan Republic asks to give interpretation about whether includes partial refusal of participants of process of the accusation in the provision "in case of refusal the state prosecutor and the private prosecutor from criminal prosecution" provided in articles 43.1.1 and 314.2 Codes of Criminal Procedure (retraining of the relevant article of the Criminal Code of the Azerbaijan Republic comprising qualified signs of actus reus in the criminal action of simple structure providing responsibility for the same act, or brining a charge to the accused person for making of crimes various Articles provided in the Criminal Code of the Azerbaijan Republic, refusal of accusation under one or several Articles).
The plenum of the Constitutional Court in connection with permission of the questions which are brought up in request considers necessary to analyse some provisions of the criminal procedure legislation concerning role of court, the status, the rights and obligations of the Parties of protection and accusation in criminal trial.
In the Azerbaijan Republic, as well as in any democratic and legal country, recognition of rights and freedoms of man and citizen, their providing and protection are announced by the prime target of the state.
From this point of view in all regulated legal relationship including criminal procedure legal relationship one of the main conditions is the management of the basic principles provided by the Constitution and the basic rights and freedoms affirmed in it.
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