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

of May 12, 2009

About interpretation of Articles 397.1 and 397.2 of the Code of penal procedure 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), F. Babayeva, B. Garibov, R. Gvaladze, E.Mamedova (judge-speaker), I. Nadzhafova, S. Salmanova and A. Sultanov,

with participation of the court secretary I. Ismaylov,

representatives of the interested subjects, the head of department on maintenance of crown case of the Prosecutor General's Office of the Azerbaijan Republic, the counselor of state of justice of III degree I. Dzhafarov, main consultant of department

administrative and military legislation of the Device of Millie of Majlis of the Azerbaijan Republic of E.Askerov,

experts: head of the department of Criminal procedure of law department of the Baku state university, Candidate of Law Sciences, associate professor F.Abbasova and head of the department Legal objects of Azerbaijan University, Candidate of Law Sciences, associate professor A. Yusubov,

specialists: judge of the Supreme Court of the Azerbaijan Republic M. Agazade and judge of the Baku Appeal Court G. Mamedov,

according to part IV 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 on request of the Prosecutor General's Office of the Azerbaijan Republic in No. 08/4809 of January 30, 2009 about interpretation of the provisions provided in Articles 397.1 and 397.2 of the Code of penal procedure of the Azerbaijan Republic.

The constitutional court of the Azerbaijan Republic also addressed criminal procedure specialists, famous in Europe, to professor of Tilburgsky university of the Netherlands A. Van Kalmtutu and professor of the Berlin university of Frey of Germany H.Khorstkott, received their written opinions concerning case in point.

Having heard on case the report of the judge E.Mamedov, performance of legal representatives of the subjects interested in special constitutional legal proceedings, expert opinions and speeches of specialists and having obtained the opinions of foreign specialists, having studied and having discussed case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic established:

Prosecutor's office of the Azerbaijan Republic, having appealed to the Constitutional Court of the Azerbaijan Republic (further the Constitutional Court) with request, specified that, according to Article 397.1 of the Code of penal procedure of the Azerbaijan Republic (further the Code of Criminal Procedure), the Appeal Court checks correctness of establishment by Trial Court of the actual facts of the case, and also applications of regulations of the penal statute and of this Code. According to article 397.2 Code of Criminal Procedure, the actual circumstances established by Trial Court are checked by Appeal Court only within the petition for appeal or appeal protest. Observance of regulations of the penal statute by Trial Court and of this Code is checked by Appeal Court irrespective of arguments of the petition for appeal or appeal protest.

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