Ramiz RZAYEV, the Chairman of the Supreme Court of the Republic of Azerbaijan
"Xalq" newspaper 20.05.2019
In modern times, the effectiveness and justness of the courts are considered as one of the criteria for assessing the democracy and the protection of human rights and freedoms in society and in the state. Strong, independent and effective judicial power plays an important role in providing these values.
After regaining its independence, Azerbaijan attaches great importance to the supremacy of law, protection of human rights and democracy. At the initiative of the President of the Republic of Azerbaijan Ilham Aliyev, who successfully follows the judicial and legal reforms, founded by the great leader Heydar Aliyev, qualitative changes took place in the development of justice in our country, legal bases for the court activities have been established, new courts have been established in the regions in order to enhance the capability of citizens to apply to the courts, the power of the courts has been expanded, the number of courts increased, and their financial maintenance has been improved, as well as substantial refinement of the judicial structure was achieved based on the transparent procedures of the selection of judges.
Successful reforms in the judicial system are of great interest in the international community, as well as the achievements of our country in this area, including the most transparent procedure of the selection of judge, the creation of a modern judicial infrastructure in accordance with the high standards, and the positive experience of Azerbaijan in the use of new innovative electronic systems are exemplary and highly esteemed by other countries.
The objective is to continually develop a high-profile justice system.
Reforms implemented in all areas to ensure the country's sustainable progress have led to the adoption of the decree "On Deepening Reforms in the Judicial-Legal System" dated April 3, 2019 by the President of the Republic of Azerbaijan. This document is a real indicator of the beginning of a new stage in the development of the judicial system and of the sustainability of judicial and legal reforms. The purpose of the decree is to accelerate the process of forming justice, which meets the needs of today and is highly respected in society. In order to achieve the intended goal the following tasks are set: to further expand the capability of citizens to apply to courts, to increase transparency in the activities of courts, to increase the effectiveness of judicial proceedings, to provide full and timely execution of court decisions, to enhance measures preventing the procrastination and other negative cases.
Along with the consideration of the fulfillment of certain tasks envisaged in the decree of the president, the instructions for those tasks are defined and specific terms for their implementation are specified. The decree states that "the social protection of judges and judicial staff should be improved, the works on upgrading the relevant infrastructure should be continued, and the use of modern information technology in court proceedings should be addressed in order to ensure the effective functioning of the justice mechanisms".
Judicial system as a mechanism of state protection is important in every legal state. By acting as an arbitrator, the judicial system simultaneously protects all areas regulated by law. The system of judicial bodies ensures the integrity of the constitutional structure, the rule of law, the unity of economic space, the property and non-property rights of individuals and legal entities, as well as freedom of economic activity.
The functioning of the judicial system, which must meet the need for legal, just and prompt resolution of disputes arising in the course of the implementation of rights and duties among the subjects of legal relations, requires constant improvement. This need stipulates the learning of the experience of different countries and international mechanisms regarding the rapid development of globalized world, the internationalization of economic, civil, family and other relations between people beyond the country, the continuous modernization of information and communication technologies, and accordingly the creation and regulation of the new legal relationships.
Justice is the criterion of truth
The measures aimed at improving the quality and effectiveness of justice set forth in the decree are addressed to ensure that every citizen of Azerbaijan lives in a state where he/she is confident about the protection of his/her rights and freedoms, to improve the welfare of the people and their living in a stable, legal state in the condition surrounded by trust and care. The provisions of the document serve as the legal support of the measures taken by the President of the Republic of Azerbaijan for promoting the care and attention to the people.
The decree constitutes the recommendations for the chairmen and judges of all courts of the Republic of Azerbaijan on complying with the principles of justice, law, impartiality, transparency, equality before the law and courts, and other principles of the Constitution and laws of the Republic of Azerbaijan in their activities in order to enhance the authority of the judiciary and to strengthen public confidence in the courts.
Strengthening public confidence in the courts, as well as public confidence in the laws, democratic values, and independent courts is a prerequisite for the existence of the state.
In reference to the fairness of justice, the Decree of the President of the country states that people apply to the courts for protecting their rights and freedoms and reaching justice. If the court's decision is fair, the citizens' hopes regarding appealing to the court and protecting their rights by the court come true, but when the decision is not fair, the judge, the court and the judiciary lose confidence.
In his speech at the opening of the Sheki court complex, the President of the Republic of Azerbaijan Ilham Aliyev also paid special attention to the fairness of justice: “...Everything in life should be established on the basis of justice. Of course, when justice is violated, some dissatisfaction arises, as well as the positive development of society encounters difficulties in general. Fair decisions increase people's confidence in the state and, at the same time, regulate our lives. All decisions must be fair. Judicial decisions adopted and reforms undertaken seek namely this goal.”
Justice being a moral category is also based on moral and national values. Justice bears the meaning of "giving everyone his/her own right", "putting everything in its place". Justice is accepted as a criterion of truth.
Justice is considered to be a result or decision that is achieved through a well-functioning mechanism of the application of the law in justice. The application of the law to this or that specific situation is intended to achieve justice. Lady Justice with her eyes covered, with a sword in one hand, and scales in another hand is a symbol of that justice.
Justice is the starting point for the proper understanding and application of the law. The fairness of the court decision depends on the proper application of legislation and the rule of law. The Court must not confront justice and legitimacy. The decision made by the court must be consistent with the values of public opinion as it is an act of law enforcement.
The court's decision should be adopted based on law, at the same time the applicable law should be interpreted and applied in the prism of justice. Justice should be the beginning of the law's interpretation and its ultimate goal. Therefore, the court's decision not only must be legitimate and fair, but also the public must see and feel its justness.
According to Article 127 of the Constitution of the Republic of Azerbaijan, in consideration of legal cases judges must be impartial, fair, they should provide juridical equality of parties, act based on facts and according to the law.
According to Article 28 of the Criminal Procedure Code of the Republic of Azerbaijan, in the course of criminal proceedings, the judge must consider the case impartially and must not express interests other than those of the law. If a judge is personally interested in the results of the criminal proceedings in a direct or indirect way, he shall not be permitted to take part in the hearing of a criminal case or examination of other prosecution material.
The principle of impartiality of courts constitutes an integral part of the right to a fair trial, which is expressed in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to the standpoint of the European Court of Human Rights commenting on Article 6 of the Convention in some of its decisions, “the participating state has an obligation to establish its own judicial system so that the system meets the requirements of the clause 1 of Article 6. The impartiality is on the first place among these demands”.
Transparency of judicial review is one of the basic principles of democratic justice. On the one hand, the court's activity during administration of justice is monitored by the public, which increases the discipline of judges and their accountability in handling cases. On the other hand, feedback is provided: those involved in the trial are familiar with the activities of the court. The openness of the court hearing ensures the relation between the court and the community. This facilitates the educational function of the court.
The best form of courts dealing with public is to carry out legal proceedings in accordance with law and at the highest professional level. Public confidence in the judiciary will be enhanced if the parties are fully heard during the trial, and the parties and those who follow the court process are explained on why such a decision is made.
Humanization of the penal policy
The humanization of the penal policy and the decriminalization of crimes are always in the spotlight of the head of state. The preamble of the Decree of the President of the Republic of Azerbaijan "On improving work in the penitentiary system, humanization of the punishment policy and expansion of alternative punishments and procedural enforcement measures not associated with isolation from society" dated February 10, 2017 states that "the widespread use of detention measures that do not pose a major public danger during pre-trial and trial proceedings, and less severe crimes, including those involving economic activities, result in an increase in the number of imprisoned and overloaded facilities”.
According to this decree it is recommended to courts to investigate the existence of reasonable suspicion for person's involvement in a criminal offense and the existence of reasonable grounds for choosing a measure of restraint, to verify the evidence of impossibility to choose another preventive measure, continuous generalization of judicial practice regarding the assignment of the detention and imprisonment measure in the Supreme Court and to ensure the formation of fair judicial practice in this field. In accordance with this recommendation, the Supreme Court conducts an annual generalization of judicial practice, the results of which are discussed at the Plenum of the Supreme Court and appropriate steps are taken to implement the decree.
The Decree of the President of the Republic of Azerbaijan Ilham Aliyev dated April 3, 2019, states that regular analysis of the practice of protection and prosecution of state charges in courts and recommendation to the Prosecutor General's Office of the Republic of Azerbaijan to take measures to improve the quality of this activity will contribute to the humanization of the penal policy.
Legal support for the development of entrepreneurship
The decree sets the task to develop and submit the drafts for normative legal acts on a number of issues to the President of the Republic of Azerbaijan within two to six months. It is also planned to draft normative legal acts in the field of establishment of a court specialized on the issues related to tax and customs payments, compulsory state social insurance fee payments and other business-related disputes in order to facilitate entrepreneurs' application to court and to ensure that business disputes are being handled by judges having deeper legal knowledge and experience in the relevant field.
One of the directions to increase the economic power of the Azerbaijani state is the development of national entrepreneurship. The constant improvement of the business environment for the development of entrepreneurship in the country, the improvement of the legislative framework in this field, the availability of financial mechanisms to support entrepreneurship, and the establishment of a flexible mechanism for protecting the rights of entrepreneurs have provided great opportunities for success in this area. The development of entrepreneurship contributes to the production growth, creation of new work places, provision of food security of the country, as well as to the improvement of our country's reputation through the promotion of products produced in Azerbaijan to the world markets and, ultimately, keeping our country in the worthy place in the world community.
The development and adoption of new drafts of legal acts in these areas give new opportunities for the economic development of Azerbaijan as a whole.
Ways of increasing efficiency in the justice
Interference with the activities of courts is one of the issues that undermine the foundations of justice. Any interference in the judge's activities during the course of the trial may affect his impartiality and justness of the decision of the case. The publication of court-related records prior to the commencement of proceedings in the courts or during court proceedings, providing various information about judges or parties dealing with the case, and other interference in the legal process may negatively affect the impartiality and reputation of justice. Unfortunately, it should be noted that attempts to influence the legal process, whether through the use of the media or otherwise, are no exception. Although the clause 2 of the Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides for the limitation of the freedom of thought in order to safeguard the impartiality and reputation of justice, it has not been reflected in national legislation. We believe that it would be appropriate to make relevant changes to the legislation in order to ensure the interests of the judiciary.
Strengthening social protection of judges, court staff, and implementing measures to strengthen the material and technical basis of courts are also factors affecting the effectiveness of justice.
The decree also envisages the adoption of legal acts on clarification of the terms of conducting the forensic investigation and issuing expert opinions on civil cases, as well as on administrative offenses, economic and administrative disputes, and in the sphere of enhancing the rights of the parties to the legal proceedings regarding the appointment of expertise. In some cases, the difficulties in conducting forensic examinations and the loss of time in presenting expert opinions to the courts do not allow a fair trial to be completed within a reasonable period of time. Therefore, the Decree constitutes alternative mechanisms for forensic activities, including analysis of international experience on private expertise and the provision of relevant recommendations for increasing the effectiveness of the courts.
Provisions in regard with ensuring the independence of judges, establishing hotline for receiving relevant information in order to prevent the intervention in courts and eliminate other negative situations, increasing transparency in the assessment of the qualification of judges and court chairmen, improving the criteria applicable to this area, ensuring of judges' disciplinary responsibility for violations and cases enabling violations of the Code of Ethics of Judges are envisaged. This, on the one hand, promotes the independence of judges, impartial consideration of cases in the courts, ensures justness, and on the other hand, promotes the responsibility of judges for their professional activities, and for maintaining the high authority of the judge in society.
Provisions regarding publication of court decisions electronically to ensure greater transparency and impartiality in the administration of justice; random and automatic distribution of cases in courts; regular monitoring of courts' compliance with the requirements of the Law of the Republic of Azerbaijan "On Courts and Judges" in the field of prohibiting non-procedural relations are also reflected in the decree. I believe that conducting monitoring in these areas will increase the sense of personal responsibility and efficiency.
The Decree sets out a number of guidelines for achieving greater progress in the enforcement of judicial acts. Thus, it is envisaged to take strict measures to ensure enforcement of decisions of courts and other bodies within the time frame established by the law, to expand the use of the "electronic execution" information system, to prevent executive officers from procrastination and abuse.
The resolution of disputes beyond justice, in fact, has its roots in the national and moral values of the Azerbaijani people. In the Azerbaijani society, "aghsaggallar" (the elders) have long played a leading role in the settlement of disputes in society, and the word "aghsaggal" promotes stability in society, promotes the preservation of national-moral values, customs and traditions, and preserves national identity. The Law of the Republic of Azerbaijan “On Mediation” has already been adopted. Settlement of disputes with the help of mediators will help to reduce the workload of courts and to resolve disputes more quickly.
Today, the need for higher qualification has increased. Complex cases are being investigated in court cases according to the requirements of contemporary life. Judges need to constantly improve their skills and continue their training in order to cope. In this regard, modernization of the Forensic Examination Center of the Ministry of Justice of Azerbaijan Republic and the Academy of Justice, improvement in infrastructure and logistics, as well as guarantees associated with conducting clerical work in courts that are envisaged in the Decree, will also contribute to enhancing the prestige of justice.
Creation of unified judicial practice
It is also envisaged in the decree that the Supreme Court of the Republic of Azerbaijan should establish a single judicial practice and a mechanism for the implementation of this task in order to ensure the stability of the courts' approach to the settlement of legal issues and predictability of the legal position on the application of normative legal acts. The document also provides for the presentation of suggestions to the President of the Republic of Azerbaijan within two months regarding the serious measures to be taken for the establishment of a unified judicial practice in order to provide systematic approach to addressing the legal issues in the courts; regarding strengthening the activities in the field of learning and generalization of judicial practice in order to improve the quality of justice; as well as creating appropriate mechanism for eliminating systematic deficiencies.
The establishment of a unified judicial practice also provides the basis for the formation of the juridical position during application of national legal provisions on human rights and freedoms at the national level, and for the interpretation and application of these provisions in the light of the precedents of the European Convention for the Protection of Human Rights and Fundamental Freedoms and European Court.
According to Article 131 of the Constitution of the Republic of Azerbaijan, Supreme Court of the Azerbaijan Republic is the highest judicial body on civil, criminal and other cases; it shall administer the justice via the cassation procedure; it gives explanations as per practices in activity of law courts.
Besides being at the top of the court pyramid, the cassation court has a characteristic feature:
The cassation court is the only such instance in our country. Its reflection in the Article 77 of the Law of the Republic of Azerbaijan "On Courts and Judges" as a basic principle comes from "a unification of judicial proceedings", which includes a single interpretation, explanation and application of legal norms throughout the state as an integral part of the ultimate goal of the cassation instance.
According to Article 96 of the Constitution, the Supreme Court also has the right of legislative initiative.
Thus, the Constitution distinguished three categories of powers of the Supreme Court:
1) to administer justice in cassational procedure;
2) to give explanations on issues concerning the practice of courts;
3) to act on legislative initiative.
The Supreme Court exercises its power to administer justice in cassational procedure by reviewing appeals for acts of the courts of appeals as a court of cassation and examining the proper application of material and procedural law.
The Supreme Court also carries out effective works in the field of the implementation of the legislative initiative, summarizing various categories of cases and discussing them in the Plenum, writing commentary letters, conducting seminars, zone consultations, writing books and articles, sending individual decisions of the European Court for interpreting and learning, creating unified judicial practice by reading lectures to judges, candidate for supremacy, and lawyers.
Appropriate explanations for the purpose of ensuring correct and uniform application of international legal norms, provisions of the Convention and precedents of the European Court in the decisions of the Plenum of the Supreme Court of the Republic of Azerbaijan "On the activity of courts in the field of protection of human rights and freedoms during the administration of justice" and "On the application of the provisions of the European Convention "On the Protection of Human Rights and Fundamental Freedoms" and the Principles of the European Court of Human Rights".
However, there are some important works to be implemented in the area of creating a unified judicial practice. We believe that, following the provisions of the decree, the Supreme Court will adequately fulfill its role as the Supreme Court.
"E-court" is a requirement of the day
The Decree, signed by President Ilham Aliyev on April 3 this year, envisages the assurance of the completion of organizational works related to the application of the “E-court” information system aimed at further enhancing of the accessibility and transparency of justice; the creation of appropriate functional opportunities for effective search based on various criteria for court decisions being published; the implementation of measures to encourage individuals and legal entities to use this information system.
Order of the Head of State on approval of the "State Program on Development of Communication and Information Technologies in the Republic of Azerbaijan for 2010-2012 (Electronic Azerbaijan)”, Decree dated May 23, 2011 “On certain measures in the sphere of an arrangement of e-services by governmental bodies” and other regulatory legal acts have created a legal framework for efficient operation.
The Decree of the President of the Republic of Azerbaijan dated February 13, 2014 on the establishment of the “Electronic Court” information system, including public access to the information in the Republic of Azerbaijan should be considered as an important step forward in enhancing the efficiency of justice.
The Supreme Court of the Republic of Azerbaijan has been implementing the “Electronic Court” information system since 2016, and the application of this system has led to improved quality of e-services, improved information provision, and increased efficiency.
However, we believe that there is a wide range of possibilities for using the "E-court" system. "E-court" will provide citizens with access to the court, will ensure transparency of the legal process, as well as remote administration of judicial proceedings if necessary, the formation of a common court practice, online monitoring of the court proceedings, etc., and will turn into the significant mean in the improvement of the level of justice.
Increasing the total number of judges in the judicial system of the Republic of Azerbaijan by 200 people will undoubtedly have an impact on the reduction of the workload of judges, and on the improvement of the quality of judicial decisions and the justice in general.
In general, the measures envisaged in the decree serve one purpose - to enhance the prestige of justice and the unity of the state and the people.
President Ilham Aliyev's constant attention to the judicial reform process increases confidence in implementation of the duties set out in the decrees and recommendations given, as well as in the development of a modern, credible and highly respected court system that fully guarantees the right to judicial protection of our people, as in other developed European countries.
Undoubtedly, the duties set out in the decree and the recommendations of Mr. President will be successfully implemented properly using the conditions created.
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