of March 19, 2002
About Articles 87.6. 14, 89.4.12 and 422.3 Codes of penal procedure of the Azerbaijan Republic
Name of the Azerbaijan Republic
Constitutional court of the Azerbaijan Republic as a part of the Chairman H.Gadzhiyev, judges F. Babayev, B. Garibov, R. Gvaladze, E.Mamedov, S. Salmanova, A. Sultanova (judge-speaker),
with participation of the court secretary I. Ismaylov
legal representatives of the subjects interested in special constitutional proceeding, the judge of the Supreme Court of the Azerbaijan Republic M. Agazade, the head of department of the military and administrative legislation of the device Millie of Majlis of the Azerbaijan Republic N. Safarov,
expert-doctor of jurisprudence, professor of department of Criminal procedure of law department of the Baku State University R. Iskenderov,
according to part IV of article 130 of the Constitution of the Azerbaijan Republic considered at the request of the Supreme Court of February 06 of the 2002nd year, No. 8-1/2002 in proceeding in open court according to the procedure of special constitutional legal proceedings case on compliance of Articles 87.6. 14, 89.4.12 and 422.3 Codes of penal procedure of the Azerbaijan Republic Constitutions of the Azerbaijan Republic.
Having heard the report of the judge A. Sultanov, performance of legal representatives of the interested subjects in special constitutional proceeding M. Agazade and N. Safarov, the expert opinion of R. Iskenderov, having studied materials of the constitutional case,
The constitutional court of the Azerbaijan Republic ESTABLISHED:
It is provided in Article 87.6.14 of the Code of penal procedure of the Azerbaijan Republic that the victim has the right to submit appelyatsionny both the writ of appeal on sentence and other court orders, and the civil claimant based on article 89.4.12 of the Code has the right to give appeal or the writ of appeal on sentence and other court order in the part concerning the claim.
According to Article 422.3 of the Code of penal procedure according to the procedure of the additional cassation only the convict or at its request the lawyer has the right to bring the claim. The Supreme Court of the Azerbaijan Republic in request asks to check compliance of Articles 87.6. 14, 89.4.12 and 422.3 Codes of penal procedure of the Azerbaijan Republic Constitutions of the Azerbaijan Republic.
Due to the request the Constitutional Court of the Azerbaijan Republic notes following.
In essence consideration requires explanation of the following questions. First, whether the victim and the civil claimant as participants of criminal procedure the right of submission of the claim according to the procedure of the additional cassation have; secondly, whether their participation in consideration of the case according to the procedure of the additional cassation is possible.
In the presence of good causes to believe that as a result of the act provided by the penal statute, to physical person moral, physical or material harm is done, to the legal entity moral or material harm, to the civil claimant material damage, specified persons can be acknowledged as the victim or the civil claimant on the basis of the resolution of the investigator, the investigator, the prosecutor or court (Article 87. 1, 87.3, 87.4, 89.1, 89.4 of the Code of penal procedure).
Persons recognized as the victim and the civil claimant both during inquiry and the investigation and in legal procedure, having the equal rights, can freely perform the rights and obligations provided by Articles 87. 6, 87.7, 89.4 and 89.5 of the Code of penal procedure, in necessary cases according to Articles 87.6. 89.4.12 Codes to give 14, appeal and writs of appeal on their resolutions, actions, including on sentences and other court orders.
It should be noted that according to Articles 87.6.17 and 89.4.14 of the Code of penal procedure the victim and the civil claimant have rights to participate in consideration of criminal case according to their claims in cassation procedure, according to the procedure of the additional cassation either on newly discovered facts, or in the presence of objections on the claim of other participants of criminal procedure. However in Article 422 of the Code of penal procedure the right of giving by the victim and civil claimant of the claim according to the procedure of the additional cassation, and the right of their participation when considering the case according to the procedure of the additional cassation is not provided in Article 427 of the Code of penal procedure.
Providing the right of submission of the claim of the victim and civil claimant according to the procedure of the additional cassation proceed from provisions of the Constitution of the Azerbaijan Republic and rules of international law.
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