of February 22, 2012
About interpretation of article 66.5 of the Criminal code of the Azerbaijan Republic
Name of the Azerbaijan Republic
Plenum of the Constitutional Court of the Azerbaijan Republic as a part of Farkhad Abdullaev (chairman), Sona Salmanova, Fikret Babayev, Sudaby Gasanova, Rovshan Ismailov, Dzheykhun Garadzhayev, Raphael Gvaladze, Iza Nadzhafova and Kyamrana Shafiyeva (judge-speaker),
with participation of the court secretary Ismail Ismailov,
representatives of the interested subjects - the judge of Hazaria district court of the city of Baku Dzheykhun Gadimov and the main consultant of Department of the administrative and military legislation of the Device of Millie of Majlis of the Azerbaijan Republic Eldar Askerov,
the expert - the head of the department of the criminal law and criminalistics of the Baku State University, the doctor of jurisprudence of professor Firudin Samandarov,
specialists - the chairman of Criminal board of the Supreme Court of the Azerbaijan Republic Shakhin Yusifov, the judge of the Baku Appeal Court Aflatun Gasymov, the prosecutor of Management on maintenance
crown case of the Prosecutor General's Office of the Azerbaijan Republic of Hasan Mansurov
according to part VI of article 130 of the Constitution of the Azerbaijan Republic considered in proceeding in open court according to the procedure of special constitutional legal proceedings the constitutional case in connection with the appeal of Hazaria district court of the city of Baku of November 4, 2011 about interpretation of article 66.5 of the Criminal Code of the Azerbaijan Republic.
Having heard the report of the judge Kyamran Shafiyev, speech of representatives of the interested subjects and specialists, the expert opinion on case, having researched and having discussed case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic established:
Hazaria district court of the city of Baku, having appealed to the Constitutional Court of the Azerbaijan Republic (further - the Constitutional Court), asks to give interpretation to article 66.5 of the Criminal Code of the Azerbaijan Republic (further UK) from the point of view of disclosure of sense, the concepts provided in it "after adjudgement", "before adjudgement" and "convict".
In the address it is specified that according to sentence of Hazaria court of January 26, 2011 the accused A. Mukhtarov was found guilty under article 132 of the Criminal Code, however to the introduction of this sentence in its relation in legal force, committed the crimes provided in articles 178.2.2 and 132 of the Criminal Code.
According to Hazaria district court appointment in similar situations of court practice to the person accused of punishment not under article 66.5 of the Criminal Code, and based on the rules established in Article 67. Can give 1, in court practice to unreasonable deterioration in its provision, violation of the rights and legitimate interests. Also according to sense of article 83.1 of the Criminal Code, for recognition of person by the convict the conviction of court pronounced in its relation shall take legal effect.
Due to the request, the Plenum of the Constitutional Court considers necessary to note the following.
According to part VIII of article 71 of the Constitution of the Azerbaijan Republic (further the Constitution) nobody can bear responsibility for act which at the time of making was not recognized offense.
Along with imperativeness of prediscretion in the law of this act, at the time of making as the crime is the right covers also the requirement about compliance to the law of punishment for making of this crime and procedures for its appointment. The similar right found the reflection also in article 15 of the International Covenant on Civil and Political Rights and in article 7 of the European convention on human rights protection and fundamental freedoms (further the Convention).
Due to the specified provision the European Court of Human Rights specified that in any system of the legislation, including the penal legislation, it is as if accurate the legal status was formulated, there is inevitable element of judicial interpretation. Always there will be need for explanation of the moments raising doubts and for adaptation to the changing circumstances. Really, in Convention state members forward development of the penal legislation by means of judicial lawmaking is well taken roots and necessary part of legal tradition. Article 7 of the Convention cannot be understood as putting beyond the law gradual modification of regulations of criminal liability by means of judicial interpretation from case to case when providing the fact that final evolution corresponds to being of crime and the predvidena (Moiseyev against Russia, on October 9, 2008, 62936/00, § 234) can be reasonable.
From the created legal line item of European Court to become it is clear that the clearness of the law is caused not only its text, and also the interpretation created in court practice.
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