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RESOLUTION OF THE PLENUM OF THE CONSTITUTIONAL COURT OF THE AZERBAIJAN REPUBLIC

of July 23, 2004

About compliance of article 48 of the Criminal Code of the Azerbaijan Republic Constitutions 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), B. Garibova (judge-speaker), F. Babayeva, R. Gvaladze, E.Mamedova, I. Nadzhafova, S. Salmanova and A. Sultanov,

with participation of the court secretary I. Ismaylov,

agents of the parties in the constitutional legal proceedings of the judge of the Supreme Court of the Azerbaijan Republic M. Agazade, the employee of the Device Millie of Majlis of the Azerbaijan Republic S. Kerimov

according to part III of article 130 of the Constitution of the Azerbaijan Republic considered on proceeding in open court according to the procedure of the constitutional judicial proceedings the constitutional case on request of the Supreme Court of the Azerbaijan Republic of February 16, 2004 No. 8-1/2004, about compliance of article 48 of the Criminal Code of the Azerbaijan Republic to articles 41 and 42 of the same Code and article 63 of the Constitution.

Having heard the report of the judge B. Garibov, performance of agents of the parties in M. Agazade and S. Kerimov's constitutional legal proceedings, having studied and having discussed materials of the constitutional case, the Plenum of the Constitutional Court of the Azerbaijan Republic ESTABLISHED:

The Supreme Court of the Azerbaijan Republic in request notes that it according to the rule, stipulated in Clause 48 Criminal Codes of the Azerbaijan Republic, application of additional punishment in the form of deprivation of special, military or honorary title and the state awards is actually performed not by court, and by means of other body. And function of court for subjection of person to such type of punishment is limited to the direction of representation to the relevant state body. It contradicts regulations of the Constitution of the Azerbaijan Republic and regulations of the criminal law on purpose of criminal penalties only adjudications.

The Supreme Court of the Azerbaijan Republic also considers that such measure as deprivation of the perpetrator of special, military or honorary title and the state awards, cannot be regarded by the decision of extrajudicial body as the punishment applied for crime execution. On the other hand, the direction or after adjudgement for the purpose of acceptance of additional measures of punishment concerning the convict is not prescribed by court of submission to any body along with sentence in the criminal procedure legislation.

According to the above, the Supreme Court of the Azerbaijan Republic asks to check compliance of article 48 of the Criminal Code to Articles 41, 42 same Codes and article 63 of the Constitution of the Azerbaijan Republic.

In case papers there are official texts of Articles certified of Millie's Device of Majlis of the Azerbaijan Republic 41, of 42, 48 Criminal Codes of the Azerbaijan Republic (Criminal code).

Due to the request the Plenum of the Constitutional Court considers necessary to note the following.

According to article 80 of the Constitution of the Azerbaijan Republic, violation of the Constitution and the laws, including abuse of the rights provided by the Constitution and the Laws, or failure to carry out of the obligations specified in them, attract the responsibility established by the law. From this point of view, in more explicit form weight of responsibility, the deprivation and restrictions provided as effect of negative attitude for violation of the public relations protected by the penal legislation is shown.

Efficiency of the criminal and legal levers applied against crime is closely connected with their proportionality to specific features of person who made offense, degrees, to nature of public danger of the committed crime and also with individualization of responsibility and punishment.

Punishment as legal effect of crime, acts as indicator of extremely negative relation from the state on socially dangerous act made by the perpetrator.

According to article 41.1 UK, punishment is the measure of criminal and legal nature appointed according to the court verdict. Punishment is applied to person found guilty of crime execution and consists in creation of the deprivations set by this Code or restrictions of the rights and freedoms of this person.

It should be noted that proportionality, justice of punishment which shall be applied for committed criminal action and possibility of individualization are connected with circle of types of the punishments established within system of punishment (article 42 UK).

Depending on rules and conditions of application, execution, and also from features of impact and the legal nature of punishment in the penal legislation are subdivided into the main, the main and additional, additional.

According to article 48 UK if the court in case of condemnation of person for making of heavy or especially serious crime taking into account nature of crime, the identity of the guilty person and other circumstances of crime recognizes necessary to deprive of it special, military or honorary title and the state awards, then it directs the corresponding representation to the body which gave the special, military or honorary rank and the state awards.

And in article 43 of the same Code providing the main and additional types of punishment, this type of punishment is specified among the types of punishment applied only as additional punishment (article 43.3 UK).

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