of January 12, 2011
About interpretation of some provisions of Articles 293.1 and 297.0.4 of the Code of penal procedure
Name of the Azerbaijan Republic
Plenum of the Constitutional Court of the Azerbaijan Republic as a part of F. Abdullaev (chairman), Sona Salmanova, Fikret Babayev, Sudaby Gasanova, Raphael Gvaladze, Iza Nadzhafova (the judge - the speaker) and Kyamrana Shafiyeva
with the assistance of the court secretary Ismail Ismailov, representatives of the interested subjects of the employee of the Device Millie of Majlis of the Azerbaijan Republic Ilgar Dzhafarov and the judge of Binagadinsky district court of the city of Baku Vugar Gasanov,
the expert - the manager of department of criminal procedure of the Baku State University, the doctor of philosophy by right, associate professor Firuza Abbasova,
the specialist - the chief of staff of the Sumgayit Appeal Court Muzaffar Agazade.
according to part VI of article 130 of the Constitution of the Azerbaijan Republic considered on proceeding in open court according to the procedure of special constitutional legal proceedings the constitutional case in communication by the appeal of Binagadinsky district court of September 20, 2010 about interpretation of Articles 293.1 and 297.0.4 of the Code of penal procedure of the Azerbaijan Republic.
Having heard the report of the judge I. Nadzhafov, speech of representatives of the interested subjects, the expert opinion, speech of the specialist in case, having studied and having discussed case papers the Plenum of the Constitutional Court of the Azerbaijan Republic established:
The Binagadinsky district court of the city of Baku appealed to the Constitutional Court of the Azerbaijan Republic (further - the Constitutional Court) in connection with interpretation of provisions of the article 293.1 "the obvious crime which is not constituting big public danger" and the article 297.0.4 "person who made the act provided by the penal statute" of the Code of penal procedure of the Azerbaijan Republic (further - the Code of Criminal Procedure) from the point of view of articles 25 and 71 of the Constitution of the Azerbaijan Republic (further - the Constitution), and also article 6 of the European Convention "About Human Rights Protection and Fundamental Freedoms".
In the address it is specified that during consideration of the case concerning Sh. Rustamov based on article 132 of the Criminal Code of the Azerbaijan Republic (further - UK) on materials of the simplified pre-judicial production, uncertainty from the point of view of application of the provisions "the obvious crime which is not constituting big public danger" and "person who made the act provided by the penal statute" of regulations of the criminal procedure legislation arose. So, the characteristics specifying detection of offenses, considered according to the procedure of the simplified pre-judicial production are indistinctly provided in these provisions and also whether has person who made act, the corresponding procedural status.
The plenum of the Constitutional Court in connection with the questions which are brought up in the address considers necessary to note following.
The circumstances causing necessary interpretation of the normative-right act are enshrined in article 46 of the Law of the Azerbaijan Republic "About regulatory legal acts". According to this Article, interpretation is determination of contents of the regulatory legal act, the explanation of essence and the purposes, terms used in the legislation.
Providing and protection of rights and freedoms of man and citizen, security of person and the safety accepted in democratic society, the constitutional state as the supreme universal values is main objective and task of the constitutional activities of state bodies.
For the purpose of protection of the state and public concerns, and also legitimate interests of person against the acts contradicting the law, the criminal procedure legislation established whether act, the reflecting essential elements of offense is, crime, whether it is charged by person guilty of crime execution, and also processes of law of criminal prosecution and protection of person, suspect and person accused of making of the acts provided by the penal statute.
Protection of the personality, society and state against criminal encroachments, bystry disclosure of crimes, exposure and criminal prosecution of persons who committed crime with carrying out comprehensive, complete and objective clarification of all circumstances connected with criminal prosecution, administration of law for the purpose of punishment of persons accused of crime execution with establishment of their fault and rehabilitation of guilty persons are the main objectives of criminal judicial proceedings (article 8 Code of Criminal Procedure).
In view of the fact that according to the criminal procedure legislation criminal prosecution is assigned to the prosecutor, the investigator, the investigator, and also injured person and the special prosecutor as the parties of accusation collection, check and assessment of the seized evidence, acceptance and execution of the relevant proceeding decisions concerning the suspect and the accused person, and also protection in court of the brought charge with production of evidence constitute content of their criminal procedure activities.
From this point of view, preliminary inquiry (inquiry and pretrial investigation) determined in the Code of Criminal Procedure as pre-judicial stage of criminal trial is component of the procedural legal mechanism directed to disclosure of crime by investigative actions and other methods of collection, check and assessment of proofs, exposure and punishment of the accused person, recovery of the broken public relations.
The criminal procedure legislation determines such types of preliminary inquiry by criminal cases as inquiry and pretrial investigation. Inquiry too, in turn, was subdivided into two independent branches realized in the form of legal proceedings of urgent investigative actions for the criminal cases requiring obligatory pretrial investigation, and the pre-judicial simplified production on some explicit crimes which are not constituting big public danger (Article 214. 1, 214.1.1, 214.1.2 Codes of Criminal Procedure).
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