of January 12, 1999
About compliance of article 32 of the Criminal code of the Azerbaijan Republic parts IV of article 29 of the Constitution of the Azerbaijan Republic
Name of the Azerbaijan Republic
Constitutional court of the Azerbaijan Republic in structure: H. I. Gadzhiyeva (Chairman), judges: F. Babayeva, B. Garibova (judge-speaker), R. Gvaladze, E. Mamedova, S. Salmanova, A. Sultanov,
with participation of the court secretary I. Ismaylov;
the legal representative of the party which sent inquiry, the deputy attorney general of the Azerbaijan Republic N. Allakhverdiyev;
legal representative of defendant, head of department of the administrative and military legislation Millie of Majlis of the Azerbaijan Republic N. Safarov;
expert, head of the department of the Criminal law of the Baku State University of M. A. Rasulzade, doctor of jurisprudence, professor F. Samandarov;
experts: The judge of the Supreme Court V. I. Nazarov, the specialist of Management of the legislation of the Ministry of Justice of the Azerbaijan Republic N. Nabiyev, being guided by Item 1 of article 130 of part III of the Constitution of the Azerbaijan Republic, considered at the request of Prosecutor's office of the Azerbaijan Republic of November 30, 1998, No. 11/112 in proceeding in open court the constitutional case on compliance of article 32 of the Criminal Code of the Azerbaijan Republic of part IV of article 29 of the Constitution of the Azerbaijan Republic.
Having heard and having discussed B. F. Garibov's report, performances of legal representatives of the parties of N. Allakhverdiyev, N. Safarova, the expert opinion of F. Samandarov, opinions of specialists V. Nazarov and N. Nabiyev, the Constitutional Court of the Azerbaijan Republic ESTABLISHED:
According to part IV of article 29 of the Constitution of the Azerbaijan Republic: "Nobody can be dispossessed. Complete confiscation of property is not allowed."
In article 32 of the Criminal Code of the Azerbaijan Republic it is determined that confiscation of property consists in forced uncompensated taking in property of the state of all or part of the property which is private property of the convict.
The request of Prosecutor's office of the Republic contains request to check compliance of provisions of article 32 of the Criminal Code of the Azerbaijan Republic to part IV of article 29 of the Constitution of the Azerbaijan Republic.
Due to the case in point the official text of article 32 of the Criminal Code of the Azerbaijan Republic, the copy "The Universal Declaration of Human Rights are attached to case papers.", the Law of the Azerbaijan Republic of November 06, 1991 "About return according to the procedure of amnesty of the apartment houses confiscated and withdrawn by courts of the Azerbaijan Republic", "The list of the property which is not subject to confiscation according to the court verdict", approved by the Decree of Presidium of the Supreme Council of the Azerbaijan Republic on September 15, 1980.
The property right is one of the conventional basic rights and cornerstone of the democratic, constitutional state fixing the supreme human values. The universal value of the property right found the reflection in a number the international documents.
By the accepted United Nations on December 10, 1948 to "Universal Declaration of Human Rights" in Article of the 17th it is specified: "Each person has the right to own property as solely, and together with others. Nobody shall be randomly deprived of the property."
The constitution of the Azerbaijan Republic recognizes and protects the property right. Among the basic rights which found reflection in the Constitution of the Azerbaijan Republic about freedoms of man and citizen, there are Articles regulating the property right, including the right of private property. In part one of article of the 13th Constitution of the Azerbaijan Republic, it is noted that the property is inviolable and is protected by the state.
Earlier confiscation of property was one of fundamentals of criminal law and in the Criminal Code of the Azerbaijan Republic accepted on December 8, 1960 is provided in quality of additional measure of punishment.
According to article 32 of the Criminal Code of the Azerbaijan Republic "confiscation of property consists in forced uncompensated taking in property of the state of all or part of the property which is private property of the convict."
According to the penal legislation punishment not only is penalty for the committed crime, but also aims at correction, re-education of convicts, and also the prevention of making of new crimes. Stipulated in Article 32 Criminal Codes of the Azerbaijan Republic confiscation of all property does not answer the punishment purpose. So, confiscation of all property aggravates provision not only the convict, but also being in its dependence of minor children, aged parents, the wife (husband) infringes at their property rights.
Taking into account it, and also proceeding from concepts of justice and humanity the Supreme Council of the Azerbaijan Republic adopted on November 06, 1991 the Law "About return according to the procedure of amnesty confiscated and withdrawn by courts of the Azerbaijan Republic."
It should be noted that according to part IV of article 32 of the Criminal Code of the Azerbaijan Republic "confiscations the objects necessary for the convict and persons who are in its dependence according to the list this in appendix to this Code are not subject." In case of such provision, provided by part I of article 32 of the Criminal Code of the Azerbaijan Republic, confiscation of all property, has formal character.
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