[7 November 2001]

[Original:  RUSSIAN]

 

 

                                               

*  The initial report submitted by the Government of Azerbaijan is contained in document CAT/C/37/Add.3; for its consideration by the Committee, see document CAT/C/SR.401, 404 and 406, and Official Records of the General Assembly, fifty-fifth session, Supplement No. 44 (A/55/44), paragraphs 64-69.

 

The information submitted by Azerbaijan in accordance with the consolidated guidelines for the initial part of the reports of States parties is contained in HRI/CORE/1/Add.41/Rev.2.

 

 

 

 

CONTENTS ( BY PARAGRAPHS)

 

     I.     INFORMATION ON NEW MEASURES RELATING

 TO APPLICATION OF THE CONVENTION ............................  1 - 203 

 

 Article 1 .........................................................................................  1 - 7 

 

 Article 2 .........................................................................................  8 - 89 

 

 Article 3 .........................................................................................  90 - 93 

 

 Article 4 .........................................................................................  94 - 110 

 

 Article 5 .........................................................................................  111 - 112 

 

 Article 6 .........................................................................................  113 - 125 

 

 Article 7 .........................................................................................  126 - 131 

 

 Article 8 .........................................................................................  132 - 134 

 

 Article 9 .........................................................................................  135 

 

 Article 10 .......................................................................................  136 - 147 

 

 Article 11 .......................................................................................  148 - 168 

 

 Article 12 .......................................................................................  169 - 172 

 

 Article 13 .......................................................................................  173 - 187 

 

 Article 14 .......................................................................................  188 - 194 

 

 Article 15 .......................................................................................  195 - 198 

 

 Article 16 .......................................................................................  199 - 203 

 

    II.     COMPLIANCE WITH THE COMMITTEE’S CONCLUSIONS

 AND RECOMMENDATIONS .....................................................  204 - 224 

 I. INFORMATION ON NEW MEASURES RELATING

 TO APPLICATION OF THE CONVENTION

Article 1

1.                 The Constitution of the Republic of Azerbaijan, adopted in 1995, contains fundamental provisions designed to prevent acts of torture and other cruel, inhuman or degrading treatment or punishment.

 

2.                 Article 46 of the Constitution states that the State shall protect the dignity of the individual and that there can be no justification for affronts to human dignity. No one may be subjected to cruel treatment or torture or to degrading treatment or punishment. The article further states that no medical, scientific or other forms of experiments may be conducted on any persons without their consent.

 

3.                 The new Code of Criminal Procedure and Criminal Code of the Republic of Azerbaijan entered into force on 1 September 2000. Article 15 of the Code of Criminal Procedure expressly prohibits the use of torture and other cruel, inhuman or degrading treatment or punishment in the conduct of criminal proceedings and lists actions by officials that fall under the category of inadmissible treatment. In their turn, articles 13 and 133 of the Criminal Code establish criminal liability for acts of torture and cruel treatment.

 

4.                 Under article 113 of the Criminal Code, entitled “Use of torture”, the inflicting of physical pain or mental suffering on persons held in custody or subject to other forms of deprivation of liberty is deemed to be a criminal offence.

 

5.                 Criminal liability is also incurred by the inflicting of physical or mental suffering through systematic beating or other violent acts (article 113.1 of the Criminal Code - “Cruel treatment”).

 

6.                 Article 113.3 of the Code categorizes as a criminal offence actions covered by articles 113.1 and 113.2 performed by, or at the bidding of, officials taking advantage of their official position with a view to extorting information from persons or forcing them to make confessions or with the aim of punishing them for actions which they have committed or are suspected of having committed.

 

7.                 At the same time, the principal factor preventing the Republic of Azerbaijan from fully implementing the Convention over its entire territory remains the continuing aggression by the neighbouring State of Armenia against Azerbaijan and its occupation of 20 per cent of the territory of Azerbaijan. According to a wide range of available data, human rights are systematically being violated in the occupied territories and Azerbaijani servicemen and hostages are being subjected to cruel treatment and torture.

 

Article 2

 

8.                 A human rights research institute has been set up under the auspices of the Azerbaijani Academy of Sciences, to promote research on human rights and freedoms and to broaden legal knowledge in this area.

 

9.                 Another important measure in the field of human rights was the reinstatement, in May 1995, of the system of presidential pardons and the establishment of a Pardons Commission under the head of State.

 

10.             Over the period 1996-2001, amnesty acts (six in total) and pardons have been adopted at the behest of the President in respect of 63,477 persons, 18,891 of whom have been released from detention.  The amnesty decision, adopted on 1 February 2001 by the Azerbaijani Parliament on the initiative of the head of State, pursuant to the admission of the Republic of Azerbaijan to membership of the Council of Europe, was swiftly passed into law.  In order to ensure the prompt and correct implementation of the Amnesty Act, the Minister of Justice promulgated an enacting order and ratified a plan of measures. Implementation of the Amnesty Act led to the release from detention of 2,429 convicted persons, 320 sentences were cut by one third and 4,703 persons were granted amnesties by the courts. It should be noted here that the Pardons Commission ruled that amnesties or pardons would not be granted to persons convicted of torture or other cruel, inhuman or degrading treatment or punishment.  Although there was no definition of the crime of torture in the country’s former criminal law and the crime was covered by article 168 of the Criminal Code, on action ultra vires, persons convicted under this article were also excluded from amnesties and pardons.

 

11.             With the help of foreign experts, including experts from Europe, a number of important statutes have been adopted to ensure protection of human rights and freedoms.  Thus, the Police Act and the Police Inquiries Act, adopted on 28 October 1999 and 28 December 1999 respectively, define the organization and powers of the police, with due regard for the European Convention on Human Rights, article 8 of which outlines the right to privacy and family life.  Interference in a person’s private life, including searches and other investigative measures not authorized by the courts (except as specified otherwise by law), are prohibited. The law in this area clearly outlines the grounds and procedure for arrest, specifying the powers of the police and the rights of detained persons.  It states that rights and freedoms may be restricted only by order of a court. It also provides for internal and external monitoring of police activities and establishes the right to challenge unlawful actions by police officers in the courts.

 

12.             The Procurator’s Office Act, adopted on 7 December 1999, significantly restricts many of the powers of the Procurator’s Office. Under the new Act, the Procurator’s Office has been stripped of powers which were a legacy of the old Soviet system and which do not properly belong within its jurisdiction. Redefining the powers of the Procurator’s Office as an arm of the judiciary, the Act acknowledges the true role of the courts in a democratic society. The principal role of the Procurator’s Office is to guide the procedural aspects of criminal prosecutions and to support the charges brought against suspects. Following the entry into force of the Penal Enforcement Code, with effect from 1 September 2000, the function of overseeing the execution of sentences was removed from the Procurator’s Office. The Act also establishes a system whereby the Procurator’s Office is monitored by the head of State, Parliament and the judicial authorities. Procedural actions previously performed by the Procurator’s Office and involving restrictions on human and civil rights and freedoms may now only be conducted with a court order and in accordance with a procedure and in cases prescribed by law.

 

13.             The Legal Profession and Legal Practice Act of 28 December 1999, which was drafted with the assistance of experts from the Council of Europe, the German Agency for Technical Cooperation (GTZ) and the World Bank, ensures the equality of the prosecution and the defence and establishes firm guarantees of the constitutional rights to legal protection, the right to a fair trial and the independence of the bar.  The Act spells out the fundamental principles governing the independence of defence lawyers in the performance of their duties.  Under the country’s law, defence lawyers may participate in all investigative actions and in trials, submit evidence and confer with their clients confidentially and without hindrance. The Act enshrines the legal status of lawyers, their independence and the basic principles of their self-regulation, thereby guaranteeing the independence of the legal profession.

 

14.             On 1 September 2000, the Criminal Code, the Code of Criminal Procedure, the Civil Code, the Code of Civil Procedure, the Code of Administrative Offences and the Penal Enforcement Code all entered into force. These instruments were drafted with the assistance of leading foreign experts on the basis of international and European standards.

 

15.             On 11 December 1998, the State Protection (Parties to Criminal Proceedings) Act was adopted, laying down a system of measures to guarantee the safety and social protection of victims, witnesses and other participants in criminal proceedings.

 

16.             Article 12 of the Code of Criminal Procedure obliges the authorities conducting criminal proceedings to ensure that the rights and freedoms of the parties to the proceedings are upheld.

 

17.             Articles 13-22 of that Code set out procedural safeguards for the following constitutional human and civil rights and freedoms:  the right to freedom, inviolability of the person and the home, protection of confidentiality, private life, honour and dignity, and the right to legal assistance.

 

18.             Article 442 of the Code states that petitions and applications concerning police inquiries and pre-trial investigations that encroach on the rights referred to above shall be considered under the judicial supervision procedure.

 

19.             Under article 90 of the Code, suspects have the following rights:

 

-        Not to testify against themselves or their next of kin;

 

-        To have the services of a lawyer from the moment of arrest or the moment they are informed of the preventive measure that is to be applied against them;

 

-        Freely to choose and dismiss their counsel and, should they decline the services of a lawyer, to defend themselves;

 

-        To meet their counsel in private, without restriction as to the number and duration of such meetings;

 

-        To inform their families and next of kin without delay at their place of residence, work or study about their detention by telephone or by other means;

 

-        To participate, at their own request, with the assistance of counsel, in investigative and other procedural measures.

 

20.             The order on the institution of criminal proceedings must be passed within 24 hours of arrest, failing which the detainee must be released. But even when criminal proceedings have been instituted, the initial period of preventive detention must not exceed 48 hours (a court must determine the appropriate preventive measure).

 

21.             Under article 85 of the Code of Criminal Procedure, investigators are obliged to uphold the right of suspects to the services of a lawyer from the moment of arrest, the laying of charges or the taking into custody. Under article 153 of the Code of Criminal Procedure, the criminal prosecution authorities must make arrangements for detainees to meet their lawyers or legal representatives in private. Detainees may, on a written application, decline the services of lawyers provided.  The Code of Administrative Offences provides for administrative detention of not more than three hours (except for certain cases specified in the Code, when the detainee may be held for up to 24 hours).

 

22.             Under the Criminal Code, the following are criminal offences: planning, preparing, launching or waging a war of aggression (art. 100); attacks on persons or organizations enjoying international protection (art. 102); genocide (art. 103); destruction of a population (art. 105); slavery (art. 106); deportation or forcible resettlement of a population (art. 107); persecution (art. 109); forcible detention (art. 110); racial discrimination (apartheid) (art. 111); deprivation of liberty in violation of international legal standards (art. 112); torture (art. 113); violation of the laws and customs of war (art. 115); violation of the standards of international humanitarian law during armed conflict (art. 116); and cruel treatment (art. 133). Finally, chapters XX, XXI and XXVII of the Criminal Code deal with offences against personal freedom and honour, the constitutional rights and freedoms of individuals and citizens and public morals.

 

23.             Section II of the Code of Administrative Offences makes provision for administrative proceedings to be brought in connection with offences against citizens’ political, social and economic rights.

 

24.             Azerbaijani law proscribes unlawful deprivation of liberty. This offence is covered by article 145, on the unlawful deprivation of liberty, of chapter 19 of the Criminal Code (Offences against personal liberty and dignity), which specifies various punishments for different types of unlawful deprivation of liberty. Unlawful deprivation of liberty covers such cases as effectively depriving persons of the opportunity to move about in unenclosed areas of their own free will, locking them indoors, tying them up, or forcibly detaining them by, for example, threatening them with a weapon. The law makes provision for strictly defined circumstances in which persons may be deprived of their liberty by a public body, namely, administrative detention, committal to a psychiatric hospital, coercive measures taken pursuant to criminal proceedings, and criminal punishment in accordance with a procedure prescribed by law. A citizen is entitled to detain another individual only in self-defence, or when the latter is committing an offence, or in emergencies. Any other form of detention constitutes unlawful deprivation of liberty. One form of this offence, according to the Criminal Code, is to deprive persons of their liberty by committing them to a psychiatric institution.

 

25.             Article 292 of the Criminal Code proscribes unlawful detention and remanding or holding in custody.  The article is designed to protect the inviolability of the individual, guaranteed by the Azerbaijani Constitution.  This article differs from the previous Criminal Code in that it extends the elements constituting this crime to include, alongside unlawful detention and short‑term imprisonment, unlawful remand in custody.  The sanctions provided in the article have also been considerably increased.

 

26.             Under article 290 of the Criminal Code, it is a criminal offence to institute criminal proceedings against knowingly innocent persons. The crime covered by this article flagrantly infringes the constitutional rights of citizens and the interests of justice. By contrast to the previous Criminal Code, the categories of persons capable of bringing criminal proceedings has been considerably extended, to include any official in whom this right is vested (judges, procurators, investigators and persons conducting initial inquiries).

 

27.             The Constitution enshrines the principle of the separation of the legislative, executive and judicial branches.  Based on that principle, the judiciary is an independent branch of State power; Azerbaijani law provides an array of guarantees of the independence of the judiciary and establishes conditions for significantly raising the status of the judiciary and of its representatives, the judges.  Azerbaijani courts have uniform legal status, i.e., they enjoy equal rights and guarantees and are all subject to the same obligations. Taken as a whole, the various elements of the status of the courts are designed to ensure the independence of judges.

 

28.             Under article 113 of the Courts and Judges Act of 10 June 1997, the following constitute grounds for relieving judges of their functions:

 

-        Submission of a written application to resign from office at their own request;

 

-        Handing down by a court of an enforceable guilty verdict against a judge or a ruling imposing coercive measures of a medical nature;

 

-        Determination by a court that the judge is legally incompetent or of limited legal competence;

 

-        Death;

 

-        Determination by the court that the judge is deceased or has disappeared without trace;

 

-        Failure by candidate judges to meet the requirements stipulated by the Act for the office of judge;

 

-        Conduct by judges of activities incompatible with their office;

 

-        Renunciation of Azerbaijani citizenship and adoption of the citizenship of another State or the undertaking of obligations to another State;

 

-        Finding by a special judicial commission set up by the Supreme Court that, for reasons of illness, the judge has been unable to perform his or her duties over a period of more than four months;

 

-        Commission of acts resulting in the institution of disciplinary proceedings for a second time within a period of one year.

 

29.             The independence of the judiciary is guaranteed and enshrined by the Constitution and statutes of the Republic of Azerbaijan. The Courts and Judges Act is intended to ensure the administration of justice in Azerbaijan and to establish the independent judiciary provided for in the Constitution.  The Constitutional Court called for by the Azerbaijani Constitution was established in 1998 and occupies a prominent position in the country’s judicial system, playing a key role in developing legal standards and ensuring respect for human rights in Azerbaijan. According to the Constitutional Court Act, the Constitutional Court is an autonomous State body, which is organizationally, financially and in every other way independent of legislative, executive and other judicial bodies (art. 6).  In carrying out their functions, the judges of the Constitutional Court are independent and subordinate only to the Azerbaijani Constitution (art. 11). To date, the Constitutional Court has adopted a number of decisions designed to bring the country’s laws and the orders and decisions adopted by the executive authorities into line with the provisions of the Constitution.

 

30.             The independence of judges is ensured by their absence of political bias, irremovability, and inviolability for the duration of their term of office; by the independence of the operation of the judiciary and the legally prescribed procedure for the administration of justice; by the prohibition of any restrictions on or interference in the judicial procedure; by measures to ensure the personal safety of judges and provide them with material and social guarantees; and by the rule that judgements of the court are mandatory and may not be revisited.

 

31.             Under the Constitution, the Courts and Judges Act and the Constitutional Court Act, persons appointed to the office of judge may not engage in political activity or join political parties.  Judges are irremovable for the duration of their term of office and may not be transferred to another post without their consent.  Judges have the rights of independence, irremovability and inviolability.  The inviolability of judges means that they may not be subject to criminal or administrative prosecution, to arrest or detention, or to searches of their property or person, nor may they be compelled to appear before the authorities. When the actions of judges contain indicia of a crime, they may be removed from office by the procedure outlined in article 128, paragraphs 4 and 5, of the Azerbaijan Constitution. Judges who have been removed from office may be subject to criminal prosecution and held in short-term detention only with the consent of the disciplinary bench of the Supreme Court. The inviolability of judges is further safeguarded by the stipulation that the consent of this body must be obtained, since the disciplinary bench naturally wishes to obtain as weighty as possible evidence of the involvement of a judge in a crime. Upon acquittal, or in the absence of facts and circumstances constituting a breach of the law, or of evidence that an offence has been committed, the powers of a judge who has been removed from office are restored.  The inviolability of judges also extends to their residence, workplace, transport, means of communication, correspondence and personal property and documents.

 

32.             The regulations on inviolability, which establish one of the core elements of the status of judges, are thus intended to safeguard the foundations of the constitutional system, namely, the separation of powers and the autonomy and independence of the judiciary from external and arbitrary action or influence, and to prevent judges from being harassed on account of their work.

 

33.             The following constitutional principles concerning judicial procedure provide important safeguards for the fair administration of justice:

 

-        Principle of the subordination of judges to the Constitution and laws of Azerbaijan: In hearing cases, the courts shall be guided by the Constitution, the laws and other statutory instruments of the Republic of Azerbaijan, and also by international treaties to which Azerbaijan is a party;

 

-        Principle of the adversarial nature of legal proceedings: According to article 23 of the Constitutional Court Act, the Constitutional Court shall not be bound by the arguments and evidence adduced by the parties to a dispute and must proceed to investigate and examine the issues comprehensively and dispassionately;

 

-        Principle of openness of court proceedings:  Under the Constitution, the Courts and Judges Act and the Constitutional Court Act, all court proceedings shall be held in open court.  Cases shall be heard in camera only in circumstances prescribed by law. All court judgements shall be made public;

 

-        Principle of equality before the law and the courts: Justice in Azerbaijan shall be administered on the basis of the equality of all before the law and the courts, regardless of race, nationality, official position, opinions, membership of political parties, trade unions or other social organizations;

 

-        Principle of the right to defence at any stage of proceedings: No one may be deprived of the right to protection by the courts. Suspects, accused persons and defendants are guaranteed the right to defence as provided for under Azerbaijani law;

 

-        Principle of the presumption of innocence:  Article 63 of the Constitution and article 11 of the Courts and Judges Act state that justice shall be administered on the basis of the presumption of innocence, in other words, that all persons accused of the commission of a crime shall be considered innocent until such time as their guilt has been proved by the legally established procedure and a sentence has been handed down by a court and entered into force;

 

-        Principle of the prohibition of changing legal jurisdiction: Article 62 of the Constitution and article 15 of the Courts and Judges Act prohibit changes to the legal jurisdiction assigned under Azerbaijani law and the unwarranted removal of cases from judges.

 

-        Principle of the collegial nature of judicial proceedings and the direct administration of justice:  Under article 4 of the Courts and Judges Act and articles 5, 25 and 26 of the Constitutional Court Act, the work of the courts shall be based on the principles of the primacy of the Constitution and of fairness, independence and the rule that the courts must speak with one voice;

 

-        Principle of the prohibition of interference in judicial proceedings: Azerbaijani courts shall administer justice in a manner consistent with the high status of the judiciary, which ensures that all procedural requirements may be satisfied and which precludes encroachments on judges’ freedom to express their opinions. Breaches of the provisions relating to the administration of justice shall incur the liability prescribed by law;

 

-        Principle of impartiality and fairness:  A judge who has heard a case in a court of first instance, a court of appeal or a court of cassation is debarred from taking part in further judicial proceedings on the same matter.

 

34.             The Azerbaijani Constitution, which underpins the radical democratic reforms under way in the country, sets out the main areas for the extensive judicial and legal reform process being conducted in Azerbaijan.

 

35.             The rules of procedure applied in the Azerbaijani judicial system, which are spelled out by the Constitution and the laws of Azerbaijan, and also the court statutes of the courts, safeguard the legality of the system and strengthen the independence of the judiciary, enabling it to function smoothly.

 

36.             In response to the need to safeguard human rights and freedoms radical democratic legal reforms have been carried out in Azerbaijan. In order to give effect to the provisions of the Constitution a presidential order was passed in February 1996 establishing a legal reform commission, composed of prominent legal experts, judges, law professors and law-enforcement officials.

 

37.             As part of the legal and judicial reform process in Azerbaijan, a range of measures has been carried out to bring the legal and judicial system into line with international and European standards.

 

38.             One of the first steps in this legal and judicial reform process was to draw up a master plan for its implementation, setting out its main tasks and purposes ‑ namely, to ensure the independent functioning of the judiciary in the context of a State based on the rule of law and to uphold the rights of citizens to a fair trial and to have access to legal assistance.

 

39.             The judicial and legal reform process being systematically conducted in Azerbaijan is designed to strengthen and safeguard the implementation of human and civil rights in all areas.

 

40.             A three-tier legal system has been established in the country, comprising courts of first instance, courts of appeal and courts of cassation, and the system has been in force since 1 September 2000.

 

41.             The Azerbaijani judicial system also provides for the operation of a jury court, which will enter into operation once the appropriate legislative instruments have been adopted and entered into force.

 

42.             Particular attention is given to the provision of material and social guarantees to judges, an essential measure in ensuring their independence and impartiality. Notwithstanding the social and economic hardships currently experienced by the country, in its concern to ensure the genuine independence of judges, the State has taken steps to increase their salaries. Currently, judges’ salaries paid to judges are the highest paid to any State officials, and are several times higher than those of other categories of citizens. At the same time, efforts are being made to identify other types of material incentives for judges and these will undoubtedly enhance the efficiency of their work and strengthen their independence.

 

43.             As part of the process to create a new judicial system and establish an independent and impartial body of judges, a presidential decree was adopted on 1 December 1998 on application of the Courts and Judges Act and measures to implement the judicial reform process, pursuant to which a judicial and legal council was established, which reports to the head of State and whose members comprise the presidents of the Constitutional, Supreme, Economic and Appeal Courts, the Supreme Court of the Naxçivan Autonomous Republic and the Serious Offences Court, and also the Minister of Justice.

 

44.             The Judicial Supervisors and Bailiffs Act and the presidential decree of 5 January 2000 adopted pursuant thereto establish a special service to coordinate the work of judicial supervisors and bailiffs in the Ministry of Justice and to follow up the work of the judicial authorities and to enforce court judgements pertaining to civil cases, economic disputes, administrative offences and criminal cases not involving the deprivation of liberty, as well as the decisions of other bodies the enforcement of which has been assigned by law to the bailiffs. Under the new conditions in the country, the Ministry of Justice bears a heavy burden of responsibility and its present-day role is of particular importance as one of the bodies chiefly responsible for the country’s judicial and legal policies.

 

45.             An investigative department has been established within the Ministry of Justice to prosecute criminal violations of the law.  At the same time, to preclude any influence in the workings of the courts by the executive authorities in the Ministry, the Ministry’s Judicial Control Service - a legacy of the Soviet era-  has been abolished. To ensure better cooperation with local and international non-governmental human rights organizations and to safeguard the rights of convicted persons in places of detention, a human rights division has been created in the Ministry of Justice.

 

46.             Other laws adopted to safeguard the constitutional principles of the independence of the judiciary and the equality of the parties to proceedings include the State Protection (Judicial and Law Enforcement Officers) Act, the Compensation (Injuries to Private Individuals resulting from Unlawful Actions of Initial Inquiry Authorities, Pre-Trial Investigation Authorities, the Procurator’s Office and the Courts) Act and the State Protection (Parties to Criminal Proceedings) Act.

 

47.             In chapter 32 (Criminal breaches of the law), the Criminal Code provides liability for the following types of crimes:  obstructing the administration of justice and the conduct of preliminary investigations (art. 286), attempts on the lives of persons responsible for the administration of justice or the conduct of preliminary investigations (art. 287), making threats or perpetrating acts of violence relating to the administration of justice or the conduct of preliminary investigations (art. 288), contempt of court (art. 289), etc.

 

48.             The passing of the presidential decree of 17 January 2000 on upgrading the rules for the selection of candidates for judgeships in the Republic of Azerbaijan was an important landmark in the process of reforming the judicial and legal system in Azerbaijan. Under this decree, it was decided that judges should be selected on the basis of a transparent procedure consistent with international requirements and following a process of examinations and interviews to determine the candidates best suited for the posts.

 

49.             As part of this process, a number of essential steps were taken by the Judicial and Legal Council and an appropriate legal and regulatory framework was established to standardize the selection procedure for candidate judges, including the preparation of new selection rules which were ratified and published in the press.

 

50.             The procedure for the selection of judges, which has been brought into line with these rules under the scrutiny of the public, international institutions and foreign and local non-governmental human rights organizations, and also a special independent expert, has been unanimously recognized by all observers as objective, impartial and transparent.  A large number of positive appraisals in the press bear witness to the success of this process and even candidates who were not selected have expressed a high opinion of its merit.

 

51.             As a result, the number of judges in Azerbaijan has been increased by 60 per cent.  The country’s judges now include representatives of all aspects of the legal profession, including independent lawyers, academics, military personnel, law-enforcement officials and judicial officers. In the process of selecting judges, primary consideration was given to the candidates’ legal expertise and general competence, their personal and moral qualities, their analytical skills and their capacity for logical thought. Importance was also attached to their suitability for the high office of judge and the prior service of candidates who had already worked as judges was also taken into consideration.

 

52.             New progressive laws which came into force in Azerbaijan on 1 September 2000 stand as an important landmark in the process of enhancing and strengthening the country’s legislative framework and bringing it into line with international standards.  In this context, particular importance attaches to the organization of special courses and other measures to ensure that judges are au fait with international norms and standards, and to familiarize them with the progressive experience of other countries in the area of the administration of justice.  To this end, contacts have been forged with such bodies as the Soros Foundation, the Association of American Jurists, and the German Agency for Technical Cooperation agency (GTZ). Plans are currently on the drawing board to extend such cooperation through the United Nations, the Council of Europe and the Organization for Security and Cooperation in Europe (OSCE).

 

53.             In international practice, the overall system for the upholding of human rights and freedoms includes, alongside guarantees at the State level, arrangements for the regulatory participation of public institutions. Prominent among these is the institution of the ombudsman, or Commissioner for Human Rights. An ombudsman’s bill has been drafted for the purpose of establishing this institution in Azerbaijan and the working methods of the ombudsman’s office will be suited to specific Azerbaijani conditions and the national legal system. A range of international measures relating to the establishment of the institution of the ombudsman in Azerbaijan have been held, with the active involvement of the Ministry of Justice.

 

54.             Thus, the ombudsman project has been studied, together with experts from the Bureau for Democratic Institutions and Human Rights of OSCE and the General Directorate for Human Rights of the Council of Europe, at various seminars and conferences both in Baku (in November 1999, July and November 2000), and in Paris, Ankara, St. Petersburg and Minsk.  At these meetings, participants discussed the prospects for the establishment of such an institution in Azerbaijan, and engaged in a comprehensive exchange of views on the topic. They agreed on the need to study the experience of the Council of Europe in this area.

 

55.             The ombudsman’s bill which, was prepared with the assistance of international bodies, has already passed through its third reading in Parliament.

 

56.             The Constitution grants aliens and stateless persons the right to exercise the same rights and fulfil the same obligations as Azerbaijani citizens, unless specified otherwise by law or an international treaty to which the Republic of Azerbaijan is a party. The rights of aliens and stateless persons may be restricted only in accordance with international legal standards and Azerbaijani law.

 

57.             A number of steps of a legislative, organizational and economic nature have been taken to improve the conditions under which persons are detained and held in custody and to bring them into line with international standards.

 

58.             On 9 January 1993, the President of Azerbaijan adopted a decree reorganizing the system for the enforcement of court decisions, the first such legislative act passed in any of the countries of the former USSR, which was designed to improve the system for enforcing court decisions, to enhance the organization of work in this area and to ensure that the system for the enforcement of penalties functioned independently of the authorities responsible for conducting initial inquiries and investigations. In early 2000, pursuant to a presidential decree of 9 October 1999, remand centres were placed under the jurisdiction of the Ministry of Justice. One outcome of the reforms to the correctional system was to grant human rights organizations access to places of detention in Azerbaijan. The importance attached by Azerbaijan to the promotion and protection of human rights and to cooperation in this area with international organizations, including those of a human rights profile, led to the signing on 1 June 2000 and the entry into force on 9 June of the same year of an agreement between the Azerbaijani Government and the International Committee of the Red Cross (ICRC). As a result, ICRC representatives already enjoy unrestricted access to convicted persons in places of detention in Azerbaijan and the results of their visits are regularly published in the Committee’s reports.

 

59.             On 11 January 1999, the President of Azerbaijan signed into law a decree on measures to strengthen the legality and ensure the proper procedure for the enforcement of penalties and the implementation of legal reform in correctional labour establishments and remand centres.  Pursuant to this decree, a State reform commission has been set up, directed by the Prime Minister and answerable to the President. The decree outlines measures for the further improvement of conditions for the detention of convicts and persons held in custody, to improve the infrastructure facilities of penitentiary establishments and remand centres and to bring them into line with international standards, and to improve the social protection afforded to their staff and to raise their salaries. In compliance with the decree, the salaries paid to the staff of penitentiary establishments and remand centres has more than doubled since 1 July 1999.

 

60.             Pursuant to this same presidential decree, the State reform commission has prepared a programme of measures, ratified by the Azerbaijani Government on 26 May 1999. This programme sets out legislative, organizational and other measures to improve the work of penitentiary establishments and remand centres and to enhance the conditions for the detention of convicts.  Under the programme, the Government has taken steps to increase the amount and calorific content of prison rations, to improve medical services for persons held in penitentiary establishments and remand centres, to uphold the right of convicted persons to make telephone calls and to set in place the necessary conditions for the full exercise of their rights to the freedom of belief, etc.

 

61.             A decree on additional measures for the implementation of legal reforms in Azerbaijan and to improve the work of judges, correctional labour establishments and remand centres, signed by the President on 9 October 1999, makes provision for additional measures to implement the legal reforms designed to improve the work of the courts, penitentiary establishments and remand centres, to create new, mixed profile penitentiary establishments, further to improve the conditions for the serving of sentences, to provide better medical services for convicted persons and to set up a training centre for the training and further training of the staff of penitentiary establishments and remand centres.

 

62.             Following recommendations by experts from the Council of Europe, a presidential decree was adopted on 9 October 1999, transferring remand centres from the jurisdiction of the Ministry of Internal Affairs to that of the Ministry of Justice. Pursuant to the decree, three remand centres have now been placed under the jurisdiction of the Ministry of Justice. Further measures are set out in the decree to improve the conditions for the detention of persons held in custody.

 

63.             As noted above, Azerbaijan’s Penal Enforcement Code entered into force on 1 September 2000. The code differs significantly from the Correctional Labour Code, which had been in force since 1 June 1971. Under the new code, for the first time, the procedure for the enforcement of all types of punishment included in the country’s new criminal code is entirely governed by statutes. Azerbaijan’s new law is designed to ensure increasingly humane conditions for the serving of sentences, particularly those involving the deprivation of liberty for fixed terms and life sentences.

 

64.             In drafting the new code, it has been brought fully into line with the provisions of the country’s Constitution, other laws adopted since the entry into force of the country’s basic law and the decisions of the Constitutional Court which relate to convicted persons.  In the code, more extensive consideration is given to the requirements of international legal instruments relating to civil rights and freedoms, including those of convicted persons. Thus, when developing the code, recourse was had to the provisions of such international instruments relating to the treatment of convicted persons as the Standard Minimum Rules for the Treatment of Prisoners of 1955 and the European Penitentiary Rules of 1987.

 

65.             This code includes among its tasks (art. 2.2) regulating the procedure and conditions for the enforcement and serving of all kinds of punishments and sentences, determining the means of correction for convicts, and protecting their rights, freedoms and lawful interests.  The Penal Enforcement Code (art. 3) takes due account of international treaties to which Azerbaijan is a party, relating to the enforcement of punishments and the treatment of convicted persons.

 

66.             If standards different to those provided by the code are established by an international treaty to which the Republic of Azerbaijan is a party, it is the rules of the international treaty which prevail.

 

67.             The Penal Enforcement Code is based on the precept that convicted persons may not be subjected to torture, violence or other cruel or degrading treatment, in accordance with the principles and standards of the Constitution, the country’s laws and international law.

 

68.             Article 7 of the code sets out the principles of the (penal) enforcement legislation and of the correctional system.  The penal enforcement legislation is based on the principles of lawfulness, humane treatment, democracy, the quality of convicted persons before the law, the tailoring of punishments to the offences in question, the rational use of coercive measures and other procedures for the correction of convicted persons, the fostering in them of respect for the law and the strengthening of the corrective force of punishments.

 

69.             The code includes an entire chapter, comprising six articles (arts. 9-14), on the legal status of convicted persons, the first such provisions in Azerbaijani law.

 

70.             Under the code, the staff of the establishment or authority carrying out the punishment are required to treat convicted persons in a civil manner.

 

71.             Under article 9 of the code, convicted persons may not be subjected to cruel or degrading treatment.  Coercive measures may only be applied against convicted persons where this is prescribed by law.

72.             Article 9.1 of the code states that the Republic of Azerbaijan shall respect and safeguard the rights, freedoms and lawful interests of convicted persons, shall ensure legality in the application of corrective measures and shall guarantee their legal protection and personal safety in the administration of their punishments.

 

73.             Under the law, in the administration of punishments, convicted persons shall be guaranteed the same rights and freedoms as all citizens of Azerbaijan, with the derogations and limitations established by the Criminal Code, the Code of Criminal Procedure, the Penal Enforcement Code and other laws. Convicted persons may not be exempted from the performance of their duties, except in cases provided by law.

 

74.             Convicted aliens and stateless persons shall enjoy the rights and bear the responsibilities established by international treaties to which the Republic of Azerbaijan is a party, by the law on the legal status of aliens and stateless persons, with the derogations and limitations established by the Criminal Code, the Code of Criminal Procedure, the Penal Enforcement Code and other legislation of Azerbaijan.

 

75.             The rights and duties of convicts, and also the limitation of those rights and duties, are determined by the Penal Enforcement Code and by other legal and regulatory instruments, in accordance with the arrangements and conditions for the serving of specific sentences.

 

76.             The code stipulates that, in the administration of penalties and serving of sentences, convicted persons shall have the following rights:

 

-        To serve their sentences in conditions which safeguard the dignity of their person;

 

-        To engage in socially useful work;

 

-        To rest;

 

-        To receive pensions or social benefits;

 

-        Pursuant to a medical finding, to receive free medical assistance, including first aid, in outpatient or inpatient facilities (an order issued by the Minister of Justice on 2 February 2000 on compliance with obligations deriving from the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment stipulates that, when detainees are remanded in custody, they must immediately undergo a medical examination);

 

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