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2009 Assessment

Azerbaijan: Integrity Indicators Scorecard

Azerbaijan: Integrity Scorecard Report > Sub-Category: Rule of Law
Indicators		Score
77	Is there an appeals mechanism for challenging criminal judgments?	75
78	In practice, do judgments in the criminal system follow written law?	25
79	In practice, are judicial decisions enforced by the state?	50
80	Is the judiciary able to act independently?	56
81	Are judges safe when adjudicating corruption cases?	100
82	Do citizens have equal access to the justice system?	71

Indicator and sub-Indicator Details

Is there an appeals mechanism for challenging criminal judgments?

77a: In law, there is a general right of appeal.

Score:

YES

Comments: Under Article 65 of the Constitution, every convicted person has a right to appeal for reconsideration of the judgment and also for pardon and mitigation of the sentence. Under Article 35 of the Code of Criminal Procedure, participants in a criminal case have a right to appeal to the superior court. Restriction of the convicted person's right to appeal is inadmissible.

References: The Constitution of the Republic of Azerbaijan; The Code of Criminal Procedure [ LINK ]

77b: In practice, appeals are resolved within a reasonable time period.

Score:

100

Comments: Generally, appeals are resolved within a reasonable time while some backlog may be expected, mostly in criminal cases. Politically sensitive cases may take longer time. It should be noted that for criminal cases the Criminal Procedure Code does not define a certain time period. As to civil cases, the legislation provides definite time periods for hearings in district courts, appellate courts, and the Supreme Court.

References: 1) Interview with Adil Ismayilov, an attorney, September 2009 2) Interview with Aynur Jafarova, National Coordinator of OSCE Trial Monitoring Project in Azerbaijan, September 2009

77c: In practice, citizens can use the appeals mechanism at a reasonable cost.

Score:

100

Comments: In general, citizens can use the appeals mechanism at a reasonable cost, which mainly includes the state fees and attorney fees. It should be noted that generally no state fee is needed in criminal cases. Legal representation fees vary from attorney to attorney.

References: 1) Interview with Alibaba Rzayev, an attorney, September 2009 2) Interview with Aynur Jafarova, National Coordinator of OSCE Trial Monitoring Project in Azerbaijan, September 2009

In practice, do judgments in the criminal system follow written law?

78: In practice, do judgments in the criminal system follow written law?

Score:

100

Comments: Corruption remains the main problem in the judiciary. In other words, judgments in the criminal system are often decided by factors other than written law, especially in high profile cases. It does not mean that it applies to all cases.

References: 1) Concluding observations of the Human Rights Committee on Azerbaijan, Aug. 13, 2009 [ LINK ] 2) US State Department Bureau of Democracy, Human Rights, and Labor, 2008 Human Rights Report on Azerbaijan, Feb. 25, 2009 [ LINK ] 3) Council of Europe Parliamentary Assembly Report on The Functioning of Democratic Institutions in Azerbaijan, June 6, 2008 [ LINK ] 4) 2008 Report of the Commission for Combating Corruption on Implementation of the National Strategy (2007-2011) for Increasing Transparency and Combating Corruption [ LINK ] 5) Materials of Legal Education Society [ LINK ] 6) Interview with Alibaba Rzayev, an attorney, September 2009

In practice, are judicial decisions enforced by the state?

79: In practice, are judicial decisions enforced by the state?

Score:

100

Comments: Judicial decisions in criminal cases are generally enforced by the state. There are some problems with enforcement of decisions in civil cases. It was also recognized by the judgment of the European Court of Human Rights in the case of Tarverdiyev v. Azerbaijan (Case # 33343/03 (July 26, 2007), [ LINK ]). The case concerns a violation of the applicant's right to a fair trial in terms of the failure to enforce a favorable judgment. The European Court found a violation of Article 6 by reasoning that non-execution of the judgment constitutes a gross violation of the right to a fair trial, and therefore in its judgment established the government's obligation to take appropriate measures to remedy the applicant's individual situation. The Court noted that whether such measures would involve reinstating the applicant in an equivalent job at an equivalent institution or, in case of impossibility to do so, granting him reasonable compensation for non-enforcement, or a combination of these and other measures, is a decision that falls to the respondent State. The Court, however, emphasizes that any measures adopted must be compatible with the conclusions set out in the Court's judgment.

Is the judiciary able to act independently?

80a: In law, the independence of the judiciary is guaranteed.

Score:

YES

Comments: Under Article 127 of the Constitution, judges are dependent only on the Constitution and laws. Judges shall act impartially, fairly, based on the equality of the parties, facts, and law. Direct and indirect restriction of the court proceeding, illegal influence, threat and interference due to any reason are not allowed. Article 8 of the Law on Courts and Judges as well as Article 25 of the Code of Criminal Procedure also stipulate the principle of independence of judges in criminal proceedings.

Article 100 of the Law on Courts and Judges more specifically describes the principle of independence of judges, which includes the following guarantees: depoliticizing of judges during their terms of office; inalterability and immunity; restrictions on appointment, liability, and termination of their office; independent nature of the judiciary; regulation by law; prohibition of any restrictions and interferences in court proceedings by any party; ensuring personal safety of the judges; financial and social safeguards.

References: The Constitution of the Republic of Azerbaijan; The Law on Courts and Judges; The Code of Criminal Procedure [ LINK ]

80b: In practice, national-level judges are protected from political interference.

Score:

100

Comments: In practice, national-level judges are not protected from political interference. Judges are commonly influenced by politics and personal biases or incentives especially in the alleged politically-motivated high profile cases. The fact that at the end the president of Azerbaijan appoints the Supreme Court, appellate court and Constitutional Court judges subject to parliamentary confirmation and lower court judges without parliamentary confirmation leads to a strong influence of the executive over the judiciary.

80c: In law, there is a transparent and objective system for distributing cases to national-level judges.

Score:

YES

Comments: According to the Law on Courts and Judges, the president of a court is in charge of distributing cases taking into account the volume and number of the case (Articles 22, 28, 30-4, 34, 39, 45, 57, 66, 83, 84). Thus, the case assignment system is under the discretion of the president of the court in all three court tiers: district courts, appellate courts as well as the Supreme Court. However, there are some discussions on moving to a blind assignment system.

References: The Law on Courts and Judges [ LINK ]

80d: In law, national-level judges are protected from removal without relevant justification.

Score:

YES

Comments: Article 128 of the Constitution regulates the immunity of judges. Under this provision, judges are immune. A judge may be held criminally liable only in accordance with the law. Judges' authority may be stopped only based on reasons and rules envisaged by the law. In case judges commit a crime, the president of the Republic of Azerbaijan, based on the opinion of the Supreme Court, may bring the issue in Parliament (Milli Majlis) with the initiative to dismiss judges from their posts. Respective opinions of the Supreme Court must be presented to the president of Azerbaijan within 30 days after his request. The decision about the dismissal of judges of the Constitutional Court, Supreme Court and Economic Court is taken by Parliament with 83 votes, whereas the decision about the dismissal of other judges is taken by Parliament with 63 votes out of 125 votes. Furthermore, Article 101 of the Law on Courts and Judges also regulates the immunity of judges.

References: The Constitution of the Republic of Azerbaijan; The Law on Courts and Judges [ LINK ]

Are judges safe when adjudicating corruption cases?

81a: In practice, in the last year, no judges have been physically harmed because of adjudicating corruption cases.

Score:

YES

Comments: In the last year, no judges have been physically harmed because of adjudicating corruption cases.

81b: In practice, in the last year, no judges have been killed because of adjudicating corruption cases.

Score:

YES

$Scoring Criteria :: YES: A YES score is earned if there were no documented cases of judges being killed related to their involvement in a corruption case during the study period. YES is a positive score. NO: A NO score is earned if there were any documented cases where a judge was killed because of his/her participation in a corruption trial. The relationship between a mysterious death and a judge\'s involvement in a case may not be clear, however the burden of proof here is low. If it is a reasonable assumption that a judge was killed in relation to his or her work on corruption issues, then the indicator is scored as a NO. Corruption is defined broadly to include any abuses of power, not just the passing of bribes.$

Comments: In the last year, no judges have been killed because of adjudicating corruption cases.

Do citizens have equal access to the justice system?

82a: In practice, judicial decisions are not affected by racial or ethnic bias.

Score:

100

Comments: Generally, judicial decisions are not affected by racial or ethnic bias.

82b: In practice, women have full access to the judicial system.

Score:

100

Comments: In practice, women generally enjoy full and equal status in the eyes of the courts. There are no exceptions or practices in which women are treated differently by the judicial system.

82c: In law, the state provides legal counsel for defendants in criminal cases who cannot afford it.

Score:

YES

Comments: Article 61 of the Constitution provides that everyone has the right to a high quality legal assistance. In cases prescribed by law, legal aid should be rendered free, at the expense of the government. Article 19.4.4 of the Code of Criminal Procedure and Article 20 of the Law on Advocates and Advocate Activity also ensure legal counsel in criminal cases for defendants (and also for accused persons) who cannot afford it.

References: The Constitution of the Republic of Azerbaijan; The Code of Criminal Procedure; The Law on Advocates and Advocate Activity [ LINK ]

82d: In practice, the state provides adequate legal counsel for defendants in criminal cases who cannot afford it.

Score:

100

Comments: Indigenous' right to free legal representation is a constitutional right that applies both to criminal and civil cases. However, the implementation of this right in practice is far below the standards. One of the primary reasons for that is the low payment to attorneys for their work that leads to incompetent representation. Under Article 19.3 and 20.1 of the Law on Advocates and Advocate Activity, the amount and procedure for rendering pro-bono legal aid to indigenous people is determined by the executive body. Pursuant to the decision of the Cabinet of Ministers on Amount of Payments Paid to Attorneys, Interpreters, Specialists, and Experts, currently the per hour pay of public advocates is about US$1. This means that if an attorney works non-stop eight hours a day, his/her monthly salary will be about US$176 USD (8*22=176). For comparison, it should be noted that the government pays salaries of about US$1,760 per month (depending on experience, rank, title, this could be more) to a public prosecutor. Accordingly, as we see, the per hour pay of prosecutors is US$10 (1760:22:8=10). In this regard, the difference in remuneration between public attorneys and public prosecutors is ten-fold. This, in fact, constitutes a clear violation of the principle of equality of arms and leads to unprofessional representation and flaws of state-provided legal aid.

82e: In practice, citizens earning the median yearly income can afford to bring a legal suit.

Score:

100

Comments: In general, citizens earning the median yearly income can afford to bring a legal suit unless corruption is not an issue. Officially, legal suit fees mainly include the state fees, court fees, and attorney fees. It should be noted that generally no state fee is needed in criminal cases. Legal representation fees vary from attorney to attorney. In practice, it usually ranges between US$50-5,000.

82f: In practice, a typical small retail business can afford to bring a legal suit.

Score:

100

Comments: In general, a typical small retail business can afford to bring a legal suit unless corruption is not an issue. Officially, legal suit fees mainly include the state fees, court fees, and attorney fees. It should be noted that generally no state fee is needed in criminal cases. Legal representation fees vary from attorney to attorney. In practice, it usually ranges between US$50-5,000.

82g: In practice, all citizens have access to a court of law, regardless of geographic location.

Score:

100

Comments: Generally, courts are available to most citizens. Some citizens may be unable to reach a courtroom at low cost due to location. Until recently, the jurisdiction of the Appellate Court located in capital Baku used to apply to the whole territory of Azerbaijan and it was very difficult for people who lived in regions. However, on Jan. 19, 2006, the president promulgated the decree on modernization of the justice system, which among other things, provided for the establishment of five regional Appellate Courts in regions. Thus, currently, there are six appellate courts in Azerbaijan, one in capital Baku and five in the big regions.

However, an apparent shortage of lawyers exists, especially outside the capital Baku. For instance, according to the deputy chairman of the Collegium of Attorneys, there is no lawyer in the south regions of Astara and Lerik. In case of emergency, the Collegium invites attorneys from nearby regions. For example in Nakhchivan (population 300,000 people), there are only three attorneys, of whom two in fact live and practice in capital Baku.

References: 1) Concluding observations of the Human Rights Committee on Azerbaijan, Aug. 13, 2009 [ LINK ] 2) Materials of Legal Education Society [ LINK ] 3) Interview of Farhad Najafov, the Deputy Chairman of the Collegium of Attorneys to the Radio Liberty, Program "Context" [ LINK ] 4) Interview with Alibaba Rzayev, an attorney, September 2009