of July 8, 2008
About interpretation of article 83.2 of the Criminal Code of the Azerbaijan Republic
Plenum of the Constitutional Court of the Azerbaijan Republic as a part of F. Abdullaev (chairman), S. Salmanova, F. Babayev, S. Gasanova, B. Garibov, R. Gvaladze (judge-speaker), E.Mamedova, I. Nadzhafova and A. Sultanova,
with participation of the court secretary I. Ismaylov,
representatives of the interested subjects of the chairman of Kyapyazsky district court of the city of Ganja I. Fattakhov, the main consultant of department of the Administrative and military legislation of the Device of Millie of Majlis of the Azerbaijan Republic I. Dzhafarov,
the expert - the acting as the dean of law department, the head of the department of the criminal law of the Baku state university д.ю.н., professor F.Samandarov, chairman of Judicial board for public vessels of the Supreme Court of the Azerbaijan Republic Sh. Yusifov, judge of the same court M. Agazade, judge of the Baku Appeal Court G. Mamedov,
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 judicial proceedings the constitutional case based on the appeal of Kyapyazsky district court of the city of Ganja on interpretation of article 83.2 of the Criminal Code of the Azerbaijan Republic.
Having heard the report of the judge R. Gvaladze, performance of legal representatives of the interested subjects and the expert, having studied case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic established:
In Kyapyazsky district court of the city of Ganja by consideration of criminal case of Ramin Aslanov under article 321.1 of the Criminal Code of the Azerbaijan Republic (further - UK) it was determined that earlier he was finally sentenced, according to the decision of Yasamalsky district court of the city of Baku of September 8, 2005, by articles 127.1 and 128 UK, on punishment in the form of 2 (two) years of corrective works, the beginning of the expiration of punishment was actually estimated from the moment of execution of sentence.
R. Aslanov was exempted by the decision of the senior legal executive of department of legal executives of Yasamalsky district court of June 8, 2007 from the established punishment, according to Item 3.4 of the resolution of Millie of Majlis of the Azerbaijan Republic of May 8, 2007 "About Amnesty devoted to memory of the national leader of the Azerbaijani people Heydar Aliyev".
R. Aslanov in October, 2007 was called up for active duty, however without any reasonable excuse and legal cause avoiding the military service, purposely evaded from the next military appeal.
Considering the above, Kyapyazsky district court in the address addressed to the Constitutional Court of the Azerbaijan Republic (daleekonstitutsionny Court) asks to give interpretation of regulation, for the purpose of clarity introduction whether the persons found guilty and condemned by the court verdict, but exempted from punishment based on the act of amnesty to the group of people belong, exempted from punishment, article 83.2 UK.
In connection with the address the Plenum of the Constitutional Court notes following.
According to article 83.1 UK, person condemned for crime execution is considered offender from the date of the introduction of conviction of court in legal force until removal or repayment of criminal record.
Apparently from Article essence, the criminal record is understood as legal effect of crime and punishment. Here the crime acts as primary act, and condemnation and application of punishment as its effect.
Lack of one of three specified bases (crime, conviction, punishment) excludes criminal record availability.
For this reason because of not removal in the matter of conviction of person, exempted from criminal liability on the bases provided in articles 72-74 UK, and persons exempted from punishment on the bases provided in articles 78 and 89 of the same Code are considered as not convicts.
Apparently from article 83.1 UK, the criminal record of person condemned on certain type of punishment for crime execution begins from the date of the introduction of conviction of court in legal force and proceeds both during all term of punishment, and after the termination of term of punishment within the terms established by the law.
However legal effects of criminal record have no permanent character and these effects are eliminated with its removal or repayment.
The penal legislation, having connected emergence of criminal record with purpose of any punishment, considers person exempted from punishment, not offender (article 83.2 UK).
However in article 83.2 UK there are no instructions concerning the bases of release from punishment of the defendant.
With respect thereto the Plenum of the Constitutional Court considers necessary to analyze the bases of release from punishment provided in the penal legislation.
The bases of release from punishment are provided in different Chapters of UK. Treat them conditional condemnation (Article 70), parole from serving sentence (Article 76), replacement of unexpired part of punishment with softer type of punishment (Article 77), release from punishment in connection with disease (Article 78), serving sentence delay to the expectant mothers and women having juvenile children (Article 79), release from serving sentence in connection with the expiration of prescriptive limits of conviction (Article 80), amnesty (Article 81) and pardon (Article 82).
The legislator on the solution of question about criminal record availability at persons who committed crime approaches not unambiguously.
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