CC BY
58
Eldar MAMEDOV
Vice-President of the International Association for Judicial Administration, Judge of the Constitutional Court of the Azerbaijan Republic
(Baku, Azerbaijan).
THE CONSTITUTIONAL COURT AND COURTS OF ORDINARY JURISDICTION IN AZERBAIJAN: THEORETICAL AND PRACTICAL PROBLEMS OF THEIR INTERRELATIONS
A b s
This article enlightens several factors concerning the building of a qualitatively new judicial system in the Azerbaijan Republic based on democratization of the judicial system and legal procedure. In this context, the creation of a Constitutional Court in the country has increased the possibility of obtaining judicial protection of human rights and freedoms and continues to have an influence on many other legal institutions and factors.
The article notes that although constitutional legal procedure, like cassation procedure (as well as procedure deriving from it by way of ancillary cassation), is carried out strictly with respect to law issues, these procedures should not be defined as the
r a c t
same thing. The Constitutional Court and Supreme Court are entirely different judicial bodies, each of which functions within the limits of its own jurisdiction in accordance with its own individual procedures.
The article also looks at several problems arising in practice relating to the review of cases and judicial acts deemed vitiated by the Constitutional Court. The author concludes that every entity of judicial enforcement should have a clear idea and understand the constitutional law in practice by making use of the corresponding decisions of the Constitutional Court, which in turn will make it possible to achieve uniform application of constitutional law and ensure legal stability.
I n t r o d u c t i o n
The division of state powers into legislative, executive, and judicial branches is one of the basic characteristics of a state ruled by law.1 In turn, judicial power plays a special role in the system of division of power by performing the task of resolving different kinds of disputes, conflicts, and other legal problems and ensuring the guaranteed right of each person to fair judicial examination (including the right of access to court and the judicial protection of rights and freedoms from illegal infringements).
Acquiring its independence and adopting the Constitution of a state dedicated to building a democratic, law-abiding, and secular state, the highest goal of which is to ensure human and citizen rights and freedoms, as well as profound political, economic, and social changes, required that Azerbaijan adopt new approaches to the way judicial power and the functioning of the judicial bodies are organized.
It is a well-known fact that in countries where an absolute monarchy and religious or estate institutions predominate, the emphasis is placed on state coercion and the use of an entire range of repressive structures. In such countries, courts also become part of the repressive machinery: they are centralized, subordinate, and accountable to higher courts, and they are managed by command-administrative methods. In contrast to them, in countries with a developed democracy, courts, while administering justice, exercise control in order to prevent abuse by the authorities, on the one hand, and to ensure that an individual does not break the law, on the other. In these countries, every person is guaranteed the right to seek judicial protection of his rights and freedoms.
When the Constitution was adopted in 1995, Azerbaijan rejected the legal system inherited from Soviet times, and the republic began carrying out judicial reform, keeping in mind the generally accepted international standards. This reform was aimed at building a qualitatively new judiciary based on democratization of the judicial system and legal procedure.
To emphasize the special role ofjudicial power, a separate chapter is devoted to it in the Constitution of the Azerbaijan Republic, consisting of 9 articles2 and covering questions relating to the organization of judicial power, the foundations of the judiciary, the fundamental principles and conditions of legal procedure, requirements for those wishing to be judges, guarantees of the independence and immunity ofjudges, as well as general provisions relating to specific institutions ofjudicial power. For instance, the Constitution provides that judicial power in the Azerbaijan Republic is executed only by courts administering justice—the Constitutional Court, the Supreme Court, courts of appeal, and other ordinary and special courts of the Azerbaijan Republic.3
In order to implement the constitutional provisions and ideas ofjudicial reform, a whole series of new laws and codes was adopted, new judicial power bodies were created and began functioning, and then a new judicial corps was formed and began working in Azerbaijan.
Within the framework ofjudicial reform, comprehensive measures for reorganizing the judicial system were consistently carried out, new institutions ofjudicial power were created, the fundamental principles of independence were strengthened, the status ofjudges raised, judicial administration was decentralized, new rules, procedures, and proceedings in procedural legislation were established (including new appeal and qualitatively new cassation procedure), supervisory proceedings were eliminated, the functions of the procurator’s office in legal procedure were restricted, a higher level of realizing the right to qualified legal assistance was ensured, judicial review over the restriction of
1 The ideas about division of powers were formulated and conceptually justified as early as the 18th century by humanistic thinkers Montesquieu, Locke, Diderot, d’Alembert, Helvetius, and others. They form the basis of Western European and North American legislation. In Azerbaijan, as in other post-Soviet countries, they came into demand after the disintegration of the Soviet Union and formation of the newly independent states.
2 See: Constitution of the Azerbaijan Republic, Chapter 7, Arts 125-133.
3 See: Constitution of the Azerbaijan Republic, Art 125, the first and second parts.
such fundamental human rights as the right to freedom, the right to property, the right to personal immunity, the right to inviolability of residence during inquest and preliminary investigation was introduced, and many other innovations were applied aimed at carrying out justice in keeping with the law, within reasonable deadlines, without any preference, discrimination, or predilection, on the basis of a complete, objective, and comprehensive legal investigation with observance of the equality and adversary nature of the parties.
The creation of a Constitutional Court (CC) in the country has significantly increased the possibility of obtaining judicial protection of human rights and freedoms. On the one hand, this is due to its broad powers and vast opportunities in ensuring supremacy of the Constitution, but on the other hand, it should be kept in mind that the “Constitutional Court is an institution of democratic changes which functions in almost all post-totalitarian states for the purpose of protecting the new constitutional values and which ensures the stability of constitutions and the conformity to plan of constitutional development. It promotes adequate interpretation and introduction of generally accepted principles and standards of international law into the national legal systems, in so doing creating prerequisites for bringing the corresponding system closer to the others, primarily to the European legal system.”4
As in other countries, in Azerbaijan, relations between the Constitutional Court and other courts develop from their ties, which can be conditionally divided into institutional, procedural, and functional. Many legal factors influence these relations, including the special features of the judicial system, the competence of courts of ordinary jurisdiction, the model of constitutional review applied in the country, the possibility of appealing to constitutional review and ways of organizing it, the powers of the CC, the legal effect, and the consequences ensuing from the decisions of this court, etc. Therefore, in order to identify the gist of the problem of interrelations among these institutions of the judicial system, we will take at least a brief look at a few of these numerous factors.
Special Features of the Functioning of Courts of Ordinary Jurisdiction in the Azerbaijan Republic
All the courts in Azerbaijan, with the exception of the Constitutional Court, constitute a three-link system of courts of ordinary jurisdiction,5 which include courts of primary jurisdiction, appeal, and cassation instances.
Courts of ordinary jurisdiction are organized in conformity with the Azerbaijani Law on Courts and Judges and act according to special procedures, which are usually envisaged by the Civil Procedure Code, the Code of Administrative Offences, with respect to conducting administrative legal proceedings, and the Criminal Procedure Code of the Azerbaijan Republic.
Most courts of ordinary jurisdiction consist of courts of primary jurisdiction, most of which are district (city) courts. They examine civil and criminal cases (of crimes that do not present high social
4 V.D. Zorkin (Chairman of the Constitutional Court of the Russian Federation), “Voprosy kostitutsionnogo raz-vitiia,” in: Rol'Kostitutsii v stanovleniipravovoi gosudarstvennosti, Collection of speeches at a conference devoted to the 10th anniversary of the Constitution of the Azerbaijan Republic, Publication of the Constitutional Court of the Azerbaijan Republic, Baku, 2006, p. 170.
5 We uphold the concept that exists in many countries, according to which courts examining criminal and civil cases are classified as courts of ordinary jurisdiction.
danger or less grave crimes), other documents envisaged by Civil Procedure or Criminal Procedure legislation,6 as well as cases of administrative offences.
Specialized courts for economic disputes and military courts are also considered courts of primary jurisdiction. The first group of courts only examines civil cases of disputes between legal or natural persons engaged in business activity without a legal status or with the status of an individual businessman, and the second only examines criminal cases of crimes that do not present a high social danger or less grave crimes and are considered military crimes, crimes against military service, or crimes committed by servicemen.
The Court for Cases of Grave Crimes and the Military Court for Cases of Grave Crimes occupy a special place among the courts of primary jurisdiction. They differ from district (city) courts and military courts in that their jurisdiction correspondingly applies to the entire territory or to all the military units of the country’s Armed Forces garrisons,7 examine only criminal cases of grave or especially grave crimes, and do this exclusively as full bench courts (in the presence of three judges).8
All courts of primary jurisdiction examine cases within their competence at judicial sittings in keeping with the regulations of procedural legislation with the participation of the parties and other participants in the trial. They resolve on the merits the legal disputes and conflicts under review, for which they must draw up a full, comprehensive, and objective picture of all the circumstances of the case, give an appraisal of the evidence presented by the parties in court and, after correctly applying the standards of substantive and procedural legislation, issue a final judicial decision (judgment).
This judgment of a court of primary jurisdiction comes into force upon expiry of the deadline envisaged by procedural legislation for lodging a complaint (protest),9 which courts of appeal are responsible for examining.
These courts10 also belong to the system of courts of ordinary jurisdiction, essentially being regional courts of secondary jurisdiction. They examine complaints (protests) exclusively in full bench judicial sittings (in the presence of three judges) with the participation of all the parties and other participants in the trial in conformity with the rules of appeal proceedings. Courts of appeal choose the scope of such proceedings themselves based on the requirements of procedural legislation, specific arguments of the complaint (protest) applicants, and keeping in mind the circumstances of previous legal proceedings in courts of primary jurisdiction.
Courts of appeal have the right to verify the correctness of the actual circumstances of the case established by courts of primary jurisdiction and the standards of substantive and procedural legisla-
6 For example, documents concerning statements about the protection of electoral rights, documents regarding complaints against decisions, acts (omission to act) of officials, documents regarding the execution of judicial decisions (judgments), documents regarding the execution of judicial review during inquests and preliminary investigation, and so on.
7 In keeping with the amendments introduced on 30 December, 2005 into the Law of the Azerbaijan Republic on Courts and Judges, the creation of a Court for Cases of Grave Crimes in the Nakhchivan Autonomous Republic is also expected.
8 In conformity with Art 359 of the Criminal Procedure Code, in some cases, the law-giver examines criminal cases in these courts with the participation of the jury. But the provisions of procedural legislation relating to proceedings with the participation of the jury will come into force in conformity with the Law of the Azerbaijan Republic on the Approval, Coming into Force of the Criminal Procedure Code and Legal Settlement of Issues Relating to This upon completion of judicial reform and after the adoption of a special law.
9 In keeping with Art 360 of the Civil Procedure Code of the Azerbaijan Republic, the deadline for submitting a complaint (protest) regarding civil cases is one month from the day the court of primary jurisdiction issues its decision. In conformity with Art 384.1 of the Criminal Procedure Code, the deadline for submitting a complaint (protest) regarding criminal cases is 20 days from the moment the court of primary jurisdiction issues the judgment.
10 In conformity with the amendments introduced on 30 December, 2005 into the Law of the Azerbaijan Republic on Courts and Judges, the functioning of the Supreme Court of the Nakhchivan Autonomous Republic is envisaged in this capacity, as well as five courts of appeal located in the cities of Baku, Ganja, Sumgayit, Ali Bairamli, and Sheki.
tion applied by them. According to the results, they may leave in force, change, or annul judicial decisions (judgments) adopted previously under corresponding cases (documents) by courts of primary jurisdiction, and issue essentially new judicial decisions (judgments).
Any decision (judgment) of a court of appeal immediately comes into force after it has been announced. However, the participants in the trial have the right to submit a cassation appeal (protest) in the way and by the deadline set forth by procedural legislation,11 the examination of which falls within the jurisdiction of the Supreme Court of the Azerbaijan Republic.
The Supreme Court (SC) heads the system of courts of ordinary jurisdiction in our country. It is the highest judicial body for civil, criminal, and other cases relating to the proceedings of ordinary and special courts and functions exclusively as a court of cassation.12
Four collegiums of the SC are engaged in the examination of cassation appeals (protests): for civil cases; for cases of economic disputes; for criminal cases; for cases of military courts. They all function as full bench courts (in the presence of three judges) and hold special judicial sittings with the participation of representatives of the parties to the case on which the protest was made.
The Collegiums of the Supreme Court only have the right to verify whether courts of appeal correctly use the standards of substantive and procedural legislation. According to the results of the judicial sitting, they may pass a resolution to leave in force, change, or annul judicial decisions (judgments) adopted by courts of appeal in corresponding cases (documents) and send the case to be examined once more by a court of appeal. The Supreme Court collegiums do not have the right to establish the actual circumstances of the case, but can, by annulling the previous decision, issue essentially new judicial decisions on civil cases, keeping in mind the actual circumstances of these cases established by courts of primary jurisdiction and courts of appeal.13
Within the deadline set forth in procedural legislation,14 resolutions of the SC collegiums may be appealed by way of ancillary cassation proceedings by lodging an appeal (protest) or by making a representation by the Chairman of the Supreme Court.15
Protests are examined by the Supreme Court Plenary Session, which is made up of a chairman, deputy chairman, chairmen of the collegiums, and judges of the Supreme Court possessing equal rights. The Plenary Session gathers at special sittings no less than once every three months, sets to work in the presence of no less than two thirds of its members, and adopts resolutions by a majority vote of those present.16
The Supreme Court Plenary Session may re-verify on the merits the correctness of application by courts of the standards of substantive and procedural legislation and, depending on the results, leave in effect, change, or cancel previously issued decisions on this case. Just like the collegiums of
11 In compliance with Art 405.1 of the Civil Procedure Code, the deadline for submitting a cassation appeal (protest) regarding civil cases is 3 months from the day the decision is adopted. In compliance with Art 410.1 of the Criminal Procedural Code, cassation appeals (protests) regarding criminal cases may be lodged from the day a verdict is issued: in the case of a sentence of acquittal within six months; in the event of a judgment of conviction if the verdict must be aggravated (deterioration of the legal status of the accused)—within 12 months; in the event of a judgment of conviction due to innocence of the accused or the need to alleviate (improve) his legal status—within 18 months.
12 See the first part of Art 131 of the Constitution of the Azerbaijan Republic.
13 The provision envisaging this right appeared recently, that is, seven years after the Civil Procedure Code was adopted, as the result of introducing amendments into this Code by the Law of the Azerbaijan Republic of 17 April, 2007. It should be emphasized that there is no such provision in the Criminal Procedure Code.
14 In compliance with Art 426.2 of the Civil Procedure Code, the deadline for submitting a complaint (protest) or representation by way of ancillary cassation regarding civil cases is two months from the day the resolution is adopted by the collegium. In compliance with Art 423.2, a complaint (protest) or representation by way of ancillary cassation regarding criminal cases may only be submitted within 12 months from the day the disputed resolution is passed.
15 In accordance with Art 423 of the Civil Procedure Code, this representation regarding civil cases may only be submitted on the basis of addresses by persons not involved in the case, if the judicial acts affect their interests.
16 In compliance with Art 80 of the Law of the Azerbaijan Republic on Courts and Judges, at least two thirds of those present is required to adopt resolutions on the annulment of judicial decisions due to aggravation of the legal status of the convict, a judgment of acquittal, or a resolution on halting proceedings in a criminal case.
the Supreme Court, the Plenary Session does not have the right to establish the actual circumstances of the case.
In practice, the Plenary Session’s resolutions come into force immediately after they have been signed by the Supreme Court chairman. And in special cases, they may be reviewed, but only during proceedings upon the discovery of new circumstances, or proceedings in case of the discovery of new facts relating to the violation of rights and freedoms.17
The Constitutional Court in the Judicial Power System
Although it belongs to the branch of judicial power, the Constitutional Court in Azerbaijan is essentially a sui generis court. We should take heed of the following in order to understand its purpose, place in the country’s judicial system, and powers with respect to establishing fundamental legal standards.
Any contemporary Constitution, following the attributes of a law-abiding state, confirms the supremacy of the law and guarantees respect for and the observance of human rights and freedoms. However, it is not enough just to have a Fundamental Law that meets these requirements. Judicial review must also be exercised to ensure that no one violates this Law. It is also very important that the power system itself (including its legislative, executive, and judicial branches) does not abuse its possibilities.
The Constitutional Court is responsible for carrying out this review in full conformity with the “European” model ofjudicial constitutional review18 in Azerbaijan. The Constitution not only places the Constitutional Court at the head of judicial power, but also, in contrast to other courts, directly stipulates all its powers.19
The CC in our country is the highest body of constitutional justice. It has broad powers of constitutional review which courts of ordinary jurisdiction cannot and do not have by the very virtue of their nature.
The Constitutional Court verifies the normative legal acts of the legislative and executive bodies, as well as acts of municipalities, for their conformity to the Constitution and/or normative legal acts of the Azerbaijan Republic which have greater juridical force in the legal hierarchy, as well as juridical acts for their conformity to the Constitution or laws of the Republic.
In addition to this, the CC interprets the Constitution and laws; it resolves disputes relating to the division of powers between the branches of power, verifies and confirms the results of elections of
17 Proceedings on new facts relating to the violation of rights and freedoms set forth in Azerbaijan both by the Civil Procedure Code (Chapter 44-1, Art 431.1-431.4), and the Criminal Procedure Code (Chapter I.III, Arts 455-460) as procedures necessary for reviewing adopted legal decisions by way of resolutions of the Constitutional Court of the Azerbaijan Republic or decisions of the European Court on Human Rights performed by courts of ordinary jurisdiction.
18 The idea of the European model proceeds from the fact that continental law recognizes the supremacy of the law and the subordinate role of judicial practice. This is why there is no desire to give the right to control the constitutionality of laws and other acts to courts of ordinary jurisdiction. After World War II, this idea has been actively used to protect the democratic achievements. So many countries have created special courts or quasi-legal departments (they are often provisionally united under the general name of Constitutional Court), the main task of which is to ensure the supremacy of the Constitution. Today, constitutional courts function in Albania, Austria, Belgium, Brazil, Bulgaria, Colombia, Costa Rica, Croatia, the Czech Republic, Egypt, Germany, Greece, Hungary, Italy, Macedonia, Mongolia, Poland, Portugal, Rumania, Serbia and Montenegro, Slovakia, Slovenia, Spain, Turkey, and other countries, including in most of the new, post-Soviet states.
19 The powers of the Constitutional Court are set forth in Arts 86, 88, 102, the second and third parts of Art 104, the first part of Art 107, the third through seventh parts of Art 130, and Art 153 of the Constitution of the Republic of Azerbaijan.
parliamentary deputies; officially announces the results of the country’s presidential election, resolves issues relating to his impeachment in the event he commits a grave offence, his dismissal from his post in the event he resigns or is incapable of performing his duties for health reasons; issues conclusions regarding proposals to amend the Constitution, and so on.
It should be emphasized in particular that the Constitutional Court does not have the right to make decisions on amendments to the text of the Constitution of the Azerbaijan Republic adopted at a referendum,20 due to its nature as a court that verifies acts falling under its jurisdiction for their conformity precisely to the Constitution. In this way, the Constitution, which serves as the basis for executing standard control on the part of the CC, can in no way simultaneously be its object.
Although the Constitutional Court in the Republic may resolve disputes relating to the division of powers between the power branches, it does not settle questions of competence between different courts of ordinary jurisdiction.
Organization of the Court, the procedure for conducting constitutional proceedings, ensuring the status of judges, and other issues regarding the functioning of this body are regulated by the Law on the Constitutional Court, which also sets forth that the main tasks of the CC are ensuring the supremacy of the Constitution and protecting the rights and freedoms of each person.21 It carries out the very important tasks of deciding what restrictions shall be placed on these rights and freedoms and of establishing the permissible limits of these restrictions.
It is important to note that “when constitutional review is exercised in the sphere of law-making (rule-making), constitutional courts simultaneously carry out the additional function of assisting legislative activity, both with respect to its improvement and development (through the “negative” and to a certain extent “positive” legislative powers of constitutional courts), and in confirming the constitutional principles in the legislative process. In particular, the legal positions of the Constitutional Court contained in its decisions form the basis for future legislative regulation and act as its criteria, parameters, and peculiar models.22
It should be noted that, within the framework of certain conditions and limits, the Constitution grants the law-giver powers to regulate human and citizen rights and freedoms by adopting laws and corresponding normative acts that regulate the conditions and rules for realizing human and citizen rights and freedoms, as well as the guarantees of their protection and the forms of liability for their violation. But the regulation of human rights and freedoms is in most cases accompanied by the opposition of individual and public interests, as well as of the incompatible rights and legitimate interests of different individuals. This delicate problem is frequently resolved by the Constitutional Court by checking the constitutionality of legislative acts.
German legal expert Klaus Stern had the following to say about this: “The existence of all basic rights, even in cases where they follow from natural human rights is reasoned, on the one hand, by the State’s participation in the protection and provision of these rights, and, on the other, by the same State’s opposition to these rights. There is only one way out of this dilemma—to draw a fine differentiating line between the protection of basic freedoms and their restriction.”23
If, for some reason, the legislature or law-enforcement bodies did not do this before, the Constitutional Court’s main task now consists precisely in making this differentiation, protecting human rights and freedoms, intercepting their violations, and preventing unjustified restrictions on the part of the Fundamental Law.
20 See Art 154 of the Constitution of the Azerbaijan Republic.
21 See Art 1.2 of the Law of the Azerbaijan Republic on the Constitutional Court.
22 See: N. Vitruk (judge of the Constitutional Court of the Russian Federation), “Vystuplenie na temu ‘Avtoritet kostitutsionnogo pravosudiia v kontekste osushchestvleniia ego funktsii v gosudarstvakh novoi demokratii,” in: Samostoiatel’nost i avtoritet sudebnoi vlasti,” Collection of conference documents, Publication of the Constitutional Court of the Azerbaijan Republic, GTZ and ABA CEELI, Baku, 2002, p. 246.
23 Quoted from: Obshchaia teoriia prav cheloveka, Norma Publishers, Moscow, 1996, p. 157.
The generally accepted restrictions on human rights and freedoms act as criteria making it possible to define the degree of an individual’s freedom and protection. And the Constitutional Court essentially establishes the correlation of the restrictions imposed by means of various acts, the Constitution, and laws, relying in so doing not only on the principle of supremacy of the Constitution and the priority of human rights and freedoms, but also on other generally accepted norms of contemporary international law. They form a single whole in the activity of the Constitutional Court, which, proceeding from this, is called upon to ensure unity of all the judicial practice and rule-making activity of the state authorities and municipalities adopting various acts.
As a rule, the Constitutional Court in Azerbaijan cannot initiate constitutional court proceedings on its own initiative.24 Until recently, in order to start up the court’s mechanism, an inquiry was required from one of six entities (the President, the Milli Mejlis (parliament), the Cabinet of Ministers, the Supreme Court, the Procurator’s Office of the Azerbaijan Republic, or the Ali Mejlis (parliament) of the Nakhchivan Autonomous Republic), invested with this right, since they represent the power system. Keeping this in mind, to ensure more effective use of constitutional review for the purpose of protecting human rights and freedoms, the range of entities with the right to appeal to the Constitutional Court was increased by introducing amendments into the Constitution at a national referendum on 24 August, 2002. As a result, each entity was granted the right to lodge a complaint with the CC. Courts of ordinary jurisdiction could appeal to the CC for an interpretation of the Constitution or laws, and ombudsman with an inquiry to verify the constitutionality of normative legal acts of legislative or executive power, as well as of the acts of municipalities and courts.
Court proceedings held in the Constitutional Court may be of two types: ordinary and special. Under ordinary proceedings, issues are examined regarding the conformity of normative legal acts of the legislative or executive bodies, as well as of the acts of municipalities to the Constitution and/or normative legal acts of the Azerbaijan Republic which have greater juridical force in the legal hierarchy. All other issues relating to the competence of the CC are examined according to special constitutional legal proceedings.25
Persons or bodies sending an inquiry, request, or complaint to the Constitutional Court, or persons or bodies that adopted the act regarding which the inquiry, request, or complaint is lodged, are the parties in ordinary constitutional legal proceedings. Special constitutional legal proceedings are participated in by the entities interested in them. All parties and entities in the corresponding type of constitutional proceedings have similar rights and obligations.
For example, in any form of constitutional proceedings, they have the following rights: to participate in and speak at judicial sittings; to present evidence and other documents; to submit proposals and petitions on questions regarding the case; to ask for witnesses and experts to be invited to court; to make a last plea; and to familiarize themselves with the minutes of the judicial sitting and make comments about it. In addition, in ordinary constitutional proceedings, the parties have the right to get acquainted with the materials of the constitutional case; to take excerpts from these materials and make copies; to participate in studying the evidence; to ask questions of each other, the witnesses, and the experts; and to protest against the petitions, evidence, and opinions voiced in the addresses of the other party.
The obligations of the parties and entities in each form of constitutional proceedings are as follows: respect for the Constitutional Court; observance of the requirements of the legal proceedings; appearance in the Constitutional Court at the scheduled time; respect for the procedure set forth by the Constitutional Court Statute; and immediate execution of instructions of the person chairing the CC sitting.
24 The only case was envisaged by Art 107 of the Constitution of the Azerbaijan Republic, in correspondence with which the Constitutional Court initiates the procedure of impeachment of the President of Azerbaijan and completes it after the Supreme Court has drawn its conclusion and held special hearings in the Milli Mejlis of Azerbaijan.
25 See Art 41 of the Law of the Azerbaijan Republic on the Constitutional Court.
In cases where the Supreme Court has submitted an inquiry to the Constitutional Court, it will also be considered the applicant’s party, but if this court or the courts of ordinary jurisdiction have duly appealed to the CC with an inquiry to interpret the Constitution or laws, the initiator of this inquiry will be considered an entity interested in special constitutional proceedings. On the other hand, if a decision of the Supreme Court (and this is also possible at the same time as other judicial acts) is challenged in the Constitutional Court, the SC shall be considered the respondent on that challenge.
The Constitutional Court of Azerbaijan consists of nine judges. They are distributed between two chambers which make decisions on the acceptance of inquiries, requests, or complaints for court examination. Constitutional cases are heard on the merits by the CC Plenary Session, to which all of its judges belong and who all enjoy (including the chairperson) equal rights in constitutional legal proceedings and have one vote in the adoption of decisions. The examination of inquiries, requests, or complaints is carried out with a full bench, at open judicial sittings, with the adversary nature of the parties and interested entities and with experts and specialists invited if necessary. Legal proceedings in the Constitutional Court are held in the state language,26 court decisions of the issues examined on the merits are adopted in a conference-room in the form of Plenary Session resolutions by a majority of votes of the judges.27 These resolutions come into force since the time decided by the Constitutional Court itself.
In the event the unconstitutionality or unlawfulness of the acts disputed is established on the basis of CC Plenary Session resolutions, they or some of their provisions are deemed vitiated. Resolutions of the Constitutional Court are final and binding in the Azerbaijan Republic; they may not be annulled, changed, or officially interpreted by anyone. All persons in our country, including officials (as well as judges of all jurisdictions), must unconditionally subordinate themselves to these resolutions.
Resolutions of the Constitutional Court are published in official newspapers, a special information bulletin, and freely placed on the CC’s website in Azerbaijani, Russian, and English.
Drawing this brief description of the Azerbaijani judicial power bodies to a close, we will note that the special jurisdiction of the Constitutional Court, including its direct execution of review over the judicial acts of the Supreme Court, elevates it to a certain extent above the other state power branches, which has led both to the high status of the Constitutional Court among the state power branches and to its promotion to the top of the pyramid of the judicial power bodies.
Procedural and Functional Relations between the Constitutional Court and Courts of Ordinary Jurisdiction
First of all, we will note that there are no fundamental relations between the Constitutional Court and courts of ordinary jurisdiction regarding conditions for appointing Constitutional Court judges, as is the case in most European countries.28 All the same, one of the Constitutional Court judges is a member of the Judicial-Legal Council,29 which, incidentally, does not have any particular
26 In so doing, persons who do not have command of the language of the legal procedure have the right to an interpreter and the right to speak in their native language.
27 In order to adopt resolutions of the CC Plenary Session, it is usually necessary for at least five judges to vote for a particular decision. In certain cases, 6 or even 7 votes must be gathered for adopting a decision (i.e. on the impeachment of the president of Azerbaijan).
28 Austria, Belgium, Bulgaria, the Czech Republic, Germany, Hungary, Italy, Latvia, Lithuania, Macedonia, Moldova, Portugal, Slovenia, Spain, Turkey, Ukraine, and so on.
29 In compliance with Art 1 of the Law of the Azerbaijan Republic on the Judicial-Legal Council, this body is called a self-government judicial body. It is headed by the Minister of Justice. It includes, in addition to 9 judges (chair-
influence on the relations between the Constitutional Court and courts of ordinary jurisdiction. They have largely been developing by means of their procedural and functional ties.
Procedural ties between these judicial bodies are formed by courts of ordinary jurisdiction participating in constitutional legal proceedings. This participation can be provisionally divided into two periods—before and after the institution of constitutional complaint entered into effect.
During the first period, only the Supreme Court of the courts of ordinary jurisdiction could appeal directly to the Constitutional Court with an inquiry to verify the conformity of normative legal acts or of the acts of municipalities to the Constitution and normative legal acts which have greater legal force in the legal hierarchy to settle disputes on the division of powers among the branches of power, as well as to interpret the Constitution and laws. At that time, the Supreme Court often made use of its right to send inquiries to the Constitutional Court, but its activity significantly decreased during the period after the institution of constitutional complaints came into effect. For example, whereas between 1999 and 2003, inquiries from the Supreme Court constituted from 38.4% to 73.3% of all the complaints accepted during the year by the Constitutional Court for examination, in 2004, this index had dropped to 6.7%, and in 2005 to 5.6%.30
Beginning in 2006, the Supreme Court stopped sending any inquiries at all to the Constitutional Court. As a result, the overall percentage of Constitutional Court decisions issued on the basis of Supreme Court inquiries currently amounts to 32.6% (44 decisions out of a total of 135 issued).
Against this background, other courts of ordinary jurisdiction are more active; they were recently granted the right of direct appeal to the Constitutional Court regarding interpretation of the Constitution and the laws on the observance of human rights and freedoms. According to their own initiative, or upon the petition of one of the parties to the dispute or conflict being examined, they halt the proceedings until they issue their own final decision and send a pre-judicial statement to the Constitutional Court. The hearing of these statements has already resulted in the Constitutional Court adopting five decisions.31
In general, it should be noted that procedural relations between the Constitutional Court and courts of ordinary jurisdiction are developing differentially, depending on the form in which courts of ordinary jurisdiction act in constitutional legal proceedings.
When the Supreme Court applies to the Constitutional Court to verify the constitutionality of acts falling under its jurisdiction as a quo court, or this or any other court applies to interpret the Constitution and laws, they participate in the constitutional legal proceedings as the initiating entity. In this case, it is obvious they want to receive answers concerning questions and problems arising in judicial practice, using the potential of the Constitutional Court. Their increased interest in the legal positions of the Constitutional Court, which acts as an ex officio court, is due to their unconcealed desire to actively make use of these positions for settling specific cases.
Possibly, this is due to the fact that, although the Constitutional Court is not authorized to examine the requests of ordinary courts on questions of fact, when hearing complaints of a quo courts, it keeps in mind, and often carefully studies, the facts set forth by an a quo court, even though it is not supposed to assess them sensu stricto. Incidentally, this is possible precisely to the same extent as it is possible for
man of the Supreme Court, judges of the Constitutional Court, two judges each from the Supreme Court and courts of appeal, a judge of the Supreme Court of the Nakhchivan Autonomous Republic, and two judges from courts of primary jurisdiction), two representatives of executive power, as well as one representative each from the Parliament, General Procurator’s Office, and the Bar Association of Azerbaijan.
30 On the basis of inquiries from the Supreme Court, the Constitutional Court issued 23 decisions on the interpretation of laws, one decision on the interpretation of the Constitution, 18 decisions on the conformity of laws to the Constitution, one decision on the division of powers among the branches of power, and one decision on verification of the conformity of a decision of the Cabinet of Ministers to the laws.
31 It should be noted that although the Constitutional Court issued a total of five decisions on statements of various courts of ordinary jurisdiction (apart from the Supreme Court), there were seven such statements, and two of them were not adopted during Constitutional Court proceedings.
these courts to offer their own decisions and motivation about the constitutionality of some rule or its interpretation in their inquiries or addresses to a body of higher constitutional justice, even though the Constitutional Court has nothing to do with the formulation of questions of a quo courts.
After 2003, when a constitutional complaint began to be applied, different qualitatively new procedural relations developed between the Constitutional Court and the Supreme Court. This is largely due to the fact that with respect to complaints regarding judicial acts, the Supreme Court finds itself in the uncomfortable position of appellee in constitutional legal proceedings. The certain amount of tension that arises due to this can to some extent be considered inevitable, since both courts are not only high courts, they are also engaged in law enforcement, which essentially gives rise to the possibility of different perception and implementation of legal rules. Nor should we forget that, in so doing, the Constitutional Court becomes a “controller,” which from the viewpoint of the higher constitutional justice body not only verifies the constitutionality of the Supreme Court’s decisions, but also, if there is reason, deems them vitiated.32
In recent years, the largest number of cases heard by the Constitutional Court are precisely constitutional complaints. For example, beginning in 2004, 47 of the 62 decisions it adopted were issued after the examination of constitutional complaints. Keeping in mind the influence their consideration has on the relations between the Constitutional Court and courts of ordinary jurisdiction, we should note several special features of constitutional legal proceedings on complaints and their consequences.
Based on the provisions of the fifth part of Art 130 of the Constitution, each person can be recognized as a subject of the right to lodge a constitutional complaint, although current legislation does not stipulate who “each person” precisely refers to.33 Some demands to recognize a certain person as the subject of such a complaint can nevertheless be formulated based on the constitutional rule itself. For example, it is obvious that the subject of a constitutional complaint should be the bearer of certain rights and/or freedoms and precisely these rights and/or freedoms should be violated by the normative acts of legislative or executive bodies, judicial acts, or acts of municipalities. So the purpose of any constitutional complaint is to restore the rights and freedoms violated by the disputed act.34
For understandable reasons, Azerbaijan, having recognized the right of each person to lodge a complaint with the Constitutional Court, has not borrowed the experience of a few countries and has not established the institution of actio popularis complaint, which gives the right to challenge corresponding acts for their non-conformity to the Constitution in the event the applicant’s rights were not violated. What is more, the applicant must possess the rights against the violation of which he is complaining. Proceeding from this, legal persons or public officials can take advantage of the right to lodge a constitutional complaint only in the event they possess the rights against the violation of which they are complaining, and only as natural persons or on behalf (with the consent) of citizens (natural persons).
Disputing questions about the conformity of normative acts of legislative or executive bodies and acts of municipalities to the Constitution or normative legal acts which have greater juridical force in the legal hierarchy, as well as about the conformity of judicial acts to the Constitution and
32 In compliance with Art 66.4 of the Law of the Azerbaijan Republic on the Constitutional Court, judicial acts recognized by this court to be in non-conformity with the Constitution or laws should not be executed and should be reviewed as envisaged by procedural legislation. It is precisely this circumstance that gives reason to believe that the Constitutional Court is in a certain sense the highest judicial body in the hierarchy of judicial power.
33 Therefore in practice, definition of natural or legal person in this capacity has become the task of the Constitutional Court.
34 The Constitutional Court of Azerbaijan, on which much depends today with respect to recognizing a particular person as a subject of a constitutional complaint, upholds the certified positions of other Constitutional Courts. For example, it proceeds from the fact that, as in Croatia, Germany, Poland, Slovenia, Spain, and Switzerland, legal persons or public officials can make use of their right to submit a constitutional complaint. But they can do this in their own or personal interests (for example, to protect their rights, which they enjoy in just the same way as natural persons).
other laws is the subject-matter of a constitutional complaint. In so doing, a legal dispute to be settled by the Constitutional Court absolutely must be based on the violation of human rights and freedoms. This is an integral attribute of the subject-matter of any constitutional complaint.
Only normative legal acts of legislative and executive bodies, judicial acts, and acts of municipalities violating human rights and freedoms may be an object of a constitutional complaint. The consideration of complaints with any other content is not within the Constitutional Court’s competence.
In this respect, it should also be kept in mind that persons alleging their rights and freedoms to be violated by the acts of local executive bodies or other state bodies35 have the right, as envisaged by the legislation, to ask a court to verify the disputed act or its specific part for conformity to the Constitution and laws of the Azerbaijan Republic.
When examining complaints, the Constitutional Court usually exercises specific constitutional review36 and only abstract review in certain exclusive cases.37 Therefore, a constitutional complaint should be lodged, as a rule, after all other possibilities of appeal in courts of ordinary jurisdiction have been exhausted. Six months from the day a decision by the last court went into force is the deadline for doing this.
This rule is largely explained by the fact that a constitutional complaint performs the function of an exclusive or subsidiary (that is, reserve) legal means of judicial-legal protection, as well as by the desire to reduce the work load of the Constitutional Court. On the other hand, it should be kept in mind that as a result of the preliminary use of other judicial-legal means for protecting rights and freedoms, courts of ordinary jurisdiction establish the actual circumstances of the case and choose certain legal positions for its settlement. This creates a certified basis for the Constitutional Court to settle legal disputes.
In this way, full advantage should be taken of any procedural ways to appeal a specific judicial act in the corresponding form of legal proceedings on civil or criminal cases, or cases on administrative offences, before a constitutional complaint is lodged. Incidentally, if the applicant is not permitted to make use of such possibilities, that is, his right to access to court is violated, he may lodge a complaint with the Constitutional Court three months after such a violation has been committed in courts of ordinary jurisdiction.
Moreover, in exceptional cases, a constitutional complaint may be lodged immediately with the Constitutional Court without taking into account the general demand for all possibilities of appeal to be exhausted in courts. This is possible if, as the result of the adoption of an act falling under constitutional review (including a judicial act), not only might the applicant’s rights and freedoms be violated, but he might also sustain severe and irreparable damage impossible to prevent by means of other courts.38 This provision of the legislation39 creates the possibility of direct and immediate access to the Constitutional Court.
The Constitutional Court of Azerbaijan uses certain mechanisms for screening (filtering) constitutional complaints.40 For starters, all the complaints lodged are first considered by the Constitutional Court apparatus. Depending on the results of this consideration, the court’s staff can:
35 For example, by acts of the Central Elections Commission or the National Bank of the Azerbaijan Republic.
36 A specific type of review arises with respect to the examination in a court of any specific dispute. In this event, both a pre-judicial appeal to the Constitutional Court with a court inquiry for the purpose of ensuring correct law enforcement, and a constitutional complaint, which follows after a court has issued its decision or after the act of an administrative body has been issued, are usually possible.
37 An abstract form of review arises as the result of abstract doubts of the applicant about the constitutionality of a particular disputed act. In this case, a decision on the constitutionality of the act (rule) may be issued independent of its application. In principle, in the Constitutional Court, abstract review is only exercised regarding complaints of state power bodies or public officials listed among the subjects of the right to send such inquiries to court.
38 Current legislation does not indicate what should be understood as a “severe and irreparable damage.” It can be presumed that its criteria will be established by the Constitutional Court in each specific case.
39 See Art 34.5 of the Law of the Azerbaijan Republic on the Constitutional Court.
40 See Arts 36.1, 36.2, and 37 of the Law of the Azerbaijan Republic on the Constitutional Court.
1) send the complaint to be examined by a corresponding state body under its subordination in the event the complaint clearly does not relate to the competence of the Constitutional Court, and inform the applicant of this;
2) inform the applicant in the event clear violations are identified of Arts 34.6, 34.7, and 35 of the Law on the Constitutional Court during drawing up of the complaint, and suggest that he fulfill the requirements indicated in the Law;
3) in other cases, send the complaint and the documents appended to it within five days to the Constitutional Court Chairman, as well as notification that the complaint has undergone preliminary consideration.41
After preliminary consideration of the complaint by the Court apparatus, the Constitutional Court Chairman appoints one or several judge-reporters, who study all the questions in advance and prepare the complaint for review. In so doing, a judge-reporter has the right to gather all the necessary documents and materials for examination of the complaint in the Constitutional Court; ask state power and local self-government bodies to supply documents, materials, and cases relating to the complaint; present the complaint to the parties, receive from them written statements on the complaint, and so on.42
Then, as a rule, within 30 days from the day the statement of the judge-reporter is received, a complaint should be considered at a closed sitting of one of the chambers of the Constitutional Court, which issues a corresponding decision in the form of a court ruling on the possibility of accepting a specific complaint for examination in court.43
Complaints are not accepted for examination by the Constitutional Court only in those cases when they were drawn up without taking the Law’s requirements into account, the issue raised in them does not apply to the Court’s competence; they were lodged by a person without the right to do so; the right to appeal a judicial act was not fully exhausted or documents were not submitted that confirm violation of the right of access to a court of ordinary jurisdiction; or if a Constitutional Court decision already exists on the particular question.44
Constitutional complaints are examined on the merits at sittings of the Constitutional Court Plenary Session, usually no later than 60 days from the day they are accepted for examination by the Court. The parties or interested entities have the right to participate in these judicial sittings, but if they do not make use of this right, or they do not appear at the judicial sitting without good reason, this will not affect the legal proceedings being conducted in their absence. On the other hand, if an applicant withdraws his complaint, the proceedings begun in the Constitutional Court are halted.
Constitutional legal proceedings are usually carried out orally, but with the consent of the parties or interested entities (in correspondence with the rules established by the Constitutional Court Statute), the Plenary Session of this Court may review the constitutional case in keeping with a written procedure.45
Today, the opinion abounds in Azerbaijan that a constitutional complaint regarding judicial acts has essentially become a kind of cassation appeal. Theoretically, since it disputes the constitutionality
41 In compliance with the provisions of the Constitutional Court Statute, after carrying out the recommendations of the Court’s apparatus, an applicant may appeal to the Constitutional Court again, or, if he does not agree with the actions of the Court’s apparatus, he may appeal to the Court again and demand an examination of his complaint by the judges.
42 See Art 36.3 of the Law of the Azerbaijan Republic on the Constitutional Court.
43 A copy of the Chamber’s ruling is sent to the applicant within seven days. After the chamber refuses to accept a complaint for examination by the CC (with the exception of cases when a complaint is not accepted due to the fact it was not drawn up in keeping with the requirements of the new Law, as well as in cases when full exhaustion of the right to appeal judicial acts or violation of the right to access to court has not been confirmed), all repeat complaints from the same applicant on the same subject-matter are sent to the CC without consideration.
44 These reasons are set forth in Art 37 of the Law of the Azerbaijan Republic on the Constitutional Court.
45 Although this provision is also contained in Art 27.2 of the Law of the Azerbaijan Republic on the Constitutional Court, there has been no such a case so far in practice.
and legality of such acts, and also contains a request to carry out a special constitutional procedure to annul their judicial force, this opinion possibly has some justification.46
But although constitutional legal proceedings, just like cassation proceedings, as well as the proceedings deriving from them by way of ancillary cassation, are carried out strictly on law issues, they should not be defined as the same thing. The Constitutional Court and Supreme Court are entirely different judicial bodies, each of which functions within the limits of its ownjurisdiction in accordance with its own individual procedures.
During constitutional legal proceedings on complaints regarding judicial acts, the Constitutional Court does not examine civil or criminal cases, or cases of administrative offences, regarding which the disputed acts are issued. It does not have the authority to establish the actual circumstances of cases reviewed in courts, but investigates only questions of the correct use or interpretation by courts of normative legal acts in order to establish the conformity of these acts to the Constitution and laws, as well as restore violated rights and freedoms. When issuing a decision on a constitutional case, the Constitutional Court does not settle disputes and conflicts settled in other courts.
Judicial acts which are deemed vitiated on the basis of Constitutional Court decisions are not executed, and cases regarding which these acts were issued are reviewed in courts of ordinary jurisdiction as envisaged by procedural legislation. In order to do this, the Supreme Court Plenary Session first annuls the judicial acts that have been deemed vitiated on the basis of a Constitutional Court decision and sends the corresponding case to be examined anew from the stage at which the Constitutional Court established the violation of rights and freedoms of the applicant of the constitutional complaint. The new examination begins in the court to which the case was sent in keeping with the rules established for examination in the corresponding court, taking into account the legal positions of the Constitutional Court.
According to a well-known German professor, Rolf Knipper, “the Federal Constitutional Court of Germany announces an investigation of all the doubts and accusations inclined to become a ‘super supervisory instance’ during investigation of the decisions of ordinary courts, only with respect to the following questions:
1) is the judicial decision based on the significance of basic rights and an “essentially erroneous act” of broad scope;
2) did the court act arbitrarily;
3) did judicial law-making overstep the bounds of constitutional law or its analogy?”47
Today, if anyone who wishes carefully studies the decisions adopted by the Constitutional Court of Azerbaijan on complaints regarding judicial acts, he can convince himself that we have occupied a position similar to that of our German colleagues.
Decisions of the Constitutional Court as a Source of Law
The legislation of the Azerbaijan Republic defines decisions of the Constitutional Court as normative acts.48 This definition has great and indisputable importance with respect to recognizing court decisions as sources of law.
46 A cassation appeal usually implies asking for the review of a legal decision by a higher instance due to violation of laws or non-observance of the rules of legal proceedings.
47 Rol' Konstitutsionnogo suda v zashchite demokraticheskikh tsennostei, Collection of documents of the conference, Azerbaijan Publishers, Baku, 2004, p. 301.
48 See Art 3.1 of the Law of the Azerbaijan Republic on Normative Legal Acts.
The precedence49 created by decisions of the Constitutional Court has regulatory significance and, in this sense, they are rules possessing high judicial force, which can be applied to similar circumstances in constitutional-legal relations. Based on this, legislative bodies and law-enforcement bodies (including courts) are obliged in their future activity to be guided by the Constitutional Court’s decisions and the provisions ensuing from them.
Nevertheless, in practice, there are still attempts to dispute the question of whether Constitutional Court decisions can be considered a judicial precedent.50 In order to do this, the opinion is used that since a judicial precedent can be understood as the use by one court of the legal consequences of cases to which another court came during examination of a case with essentially similar circumstances, we cannot talk about such a precedent with respect to Constitutional Court decisions. Therefore, if this court gave an interpretation of any law, its decision is only binding in cases relating to the application of this particular law. In this case, however, the matter might concern not an analogy, but a similar provision, not the similarity of actual circumstances of the case, but the legal content of the law being applied.
On the other hand, when evaluating Constitutional Court decisions, many give priority to the question of their pre-judicial significance. Establishment by this court of the conformity or non-conformity of a particular act or its individual provisions, which falls under its jurisdiction, to the Constitution should in itself be perceived as a special fact of pre-judicial significance for all entities engaged in questions of rule-making and law-application, including for courts of ordinary jurisdiction. In particular, this fact makes it impossible for courts to apply an act or its individual provisions that have been deemed vitiated by the Constitutional Court.
But an evaluation of the legal nature of Constitutional Court decisions from the viewpoint of their pre-judicial nature cannot fully encompass the essence and significance of these decisions, which not only establish the fact of conformity or non-conformity of particular acts to the Constitution, but also in some sense, by replenishing these acts, transform them into their inherent part. This is particularly pertinent for Constitutional Court decisions adopted with respect to interpretation of the Constitution and laws.
In our opinion, we should take a differential approach to the answer to the question of the qualitative significance of the legal force of Constitutional Court decisions in the various legal disputes and conflicts examined in courts. There is no doubt that in the cases being examined by such courts, regarding which inquiries were sent to the Constitutional Court, its corresponding decisions have a specific pre-judicial significance. The juridical force of Constitutional Court decisions applies to all legal relations regulated by the legal rules on which its decisions were issued. Therefore, when considering any case in courts of ordinary jurisdiction, Constitutional Court decisions relating to the interpretation of the Constitution and laws, as well as any act or its provision deemed vitiated due to its non-conformity to the Constitution or laws, are decisions entailing legal consequences of a precedent nature.
Constitutional Court decisions also have a precedent nature in those cases regarding which the judicial acts issued were subsequently disputed by means of a constitutional complaint. When settling other cases, courts of ordinary jurisdiction should proceed from the actual circumstances of the cases they ascertained, and when establishing the similarity of legal disputes, the legal positions reflected in Constitutional Court decisions adopted previously on complaints regarding judicial acts under other cases absolutely must be taken into account.
49 A juridical (legal) precedence—decision of a court or any other authorized state body issued on a specific case and binding in the subsequent settlement of similar cases.
50 Keeping in mind that the essence of a precedent consists of the fact that a judicial decision adopted on a specific case has mandatory significance (the force of a legal regulation) during the subsequent settlement of similar cases in courts of law.
Incidentally, when taking Constitutional Court decisions as sources of law,51 only one question is disputed—about whether the meaning of the operative and descriptively motivated part of a Constitutional Court decision is different from the viewpoint of legal consequences.52 The Constitutional Court of Azerbaijan noted in this respect: “The high juridical force of a Constitutional Court decision applies to all parts of the decision, as well as to the legal positions forming its foundation. But in some cases, the Constitutional Court’s legal positions acquire an independent significance. Since the force of the Constitutional Court’s legal positions is equal to the juridical force of its decisions and is of a general nature, this decision should apply not only to the circumstances forming the subject-matter of the constitutional case, but also, as a source of law, to similar cases encountered within law-enforcement practice.”53
One of the important questions for perceiving Constitutional Court decisions as a source of law is the interrelation between these decisions and legislative acts. The decisions of this court are often regarded as a source of law in the sense that, with their help, gaps in the law are temporarily filled in. The Constitutional Court often carries out this function when interpreting the laws. But for courts and other law-enforcement bodies, its decision constitutes the legal basis for filling in the gaps until the law-giver himself fills them in.
In some cases, the Constitutional Court acts as a “negative legislature”54 and, without a doubt, this activity leads to significant changes in legislation. As a result of this, a problem arises relating to the fact that the Constitutional Court as a “negative legislature,” deeming a legal rule vitiated, does not settle these relations regulated by this rule, as a result of which a gap appears in the legislation.
There is a popular opinion in the Azerbaijani juridical community that, along with the basic function of “negative legislature,” the Constitutional Court should also be vested to a certain extent with the functions of a “positive legislature.”55 This is necessary so that when the Constitutional Court adopts a decision to deem a legal rule vitiated to avoid gaps appearing in the legislation, it could temporarily and under certain conditions regulate the relations still unregulated after its decision.
But, keeping in mind the principle of division of powers, the Constitutional Court of Azerbaijan avoids interfering in questions relating to the competence of other organs of power. It proceeds from the fact that a legislative or executive body, or other judicial bodies, cannot and should not replace this court. Therefore, after considering specific cases, the Constitutional Court introduces certain recommendations in its decisions, if necessary, on the expediency of undertaking certain measures to legislatively regulate particular questions.
It should be noted in particular that a Constitutional Court decision is a legal precedent not only for other courts, but also for itself. It essentially cannot ignore those legal positions that it formulated in its previous decisions. It does not have the authority to review its own decisions, and so in the future, when examining a different case, it can, if necessary, after returning to its previous position, improve it by replenishing it with new ideas. The latter may not contradict the previous position, but they may clarify and develop it.
51 The provisions of Art 13.7 of the Civil Procedure Code and Art 10.3 of the Criminal Procedure Code of the Azerbaijan Republic are taken as the basis for this acknowledgement.
52 In particular, the descriptively motivated part reflects the legal positions of the Constitutional Court on the question under review.
53 Decision of the Constitutional Court of the Azerbaijan Republic of 25 January, 2005 on Conformity of Item 9 of the third part and Item 7 of the fourth part of the Law of the Azerbaijan Republic on Introducing Addenda and Amendments into Several Legislative Acts of the Azerbaijan Republic No. 688-IIQD of 11 July, 2004 to the ninth part of Art 130 of the Constitution of the Azerbaijan Republic, in: Sbornik postanovlenii Konstitutsionnogo suda Azerbaidzhanskoi Re-spubliki po individualnym zhalobam, Iuridicheskaia literatura Publishers, Baku, 2005, p. 523.
54 Recognizing normative legal acts or their provisions as vitiated, it changes the content of the legal rule and in this way acts as a “negative legislature.”
55 S.A. Mirzoev (head of the apparatus of the Milli Mejlis of the Azerbaijan Republic), “Rol’ Konstitutsionnogo suda v razdelenii vlastei,” in: Rol' Konstitutsionnogo suda v zashchite demokraticheskikh tsennostei, p. 224.
Some Urgent Problems of the Functional Relations between the Constitutional Court and Courts of Ordinary Jurisdiction
The exclusive competence of the Constitutional Court in carrying out so-called rule control with respect to the issue of decisions on the constitutionality of a particular act and endowing it with appropriate validity by means of actual annulment of this act or its provisions extends only to the rules of the Constitution or other normative legal acts adopted by legislative bodies,56 central executive bod-ies,57 as well as the acts of municipalities.
But it should be kept in mind that persons considering their rights and freedoms to be violated by normative acts of local executive bodies have the right to appeal to courts of ordinary jurisdiction as envisaged by civil procedure legislation to verify the conformity of the disputed act or its specific part to the Constitution and laws of the Republic.
With respect to the review of cases, the judicial acts on which were regarded as vitiated, several disputed questions have arisen in practice. For example, should there be certain limitations on the legal examination of cases during their proceedings in the Supreme Court Plenary Session and during subsequent legal procedure?
The Constitutional Court explained its viewpoint on this question as follows: “During the examination of new circumstances relating to the violation of human rights and freedoms, the hearing of cases on law issues by the Supreme Court Plenary Session should not be a pretext for it to assume the powers of the Constitutional Court or distort (revise, expand, limit, or interpret in some other way) its decisions, being of detriment to the efficacy of constitutional justice, and should be carried out in keeping with the constitutional status of a court of cassation. In so doing, the Supreme Court and other courts should adopt their decisions only within that framework established by the Constitutional Court on the corresponding case. These limits form the law issues indicated in the decisions of the Constitutional Court and the human rights and freedoms recognized by the Constitutional Court to be violated.”58
Another question arousing an ambiguous attitude is which of the possible decisions on sending cases for review to a particular court should the Supreme Court Plenary Session make when annulling a judicial act during the examination of new circumstances relating to the violation of human rights and freedoms? In practice, in 38 cases out of 44, when annulling judicial acts, the effect of which was deemed vitiated on the basis of a Constitutional Court decision, the Supreme Court Plenary Session sent corresponding cases to be reviewed by a court of appeal. The Constitutional Court has the following viewpoint on this question: “With respect to sending cases for a new judicial examination, it should be emphasized in particular that it should be returned precisely to that stage at which the Constitutional Court revealed the violation of human rights and freedoms. Returning a case to an earlier stage and repeat examination of the case at that stage of the legal proceedings where no judicial errors had previously been made not only does not correspond to the goals of the institution of proceedings
56 Legislative bodies should be understood as the Milli Mejlis of the Azerbaijan Republic and Ali Mejlis of the Nakhchivan Autonomous Republic, each of which adopts laws and decisions within its competence.
57 Central executive bodies in Azerbaijan should be understood as ministries, state committees, committees, and other bodies of the Azerbaijan Republic equated therewith.
58 Decision of the Constitutional Court of the Azerbaijan Republic of 25 January, 2005 on the Conformity of Item 9 of the third part and Item 7 of the fourth part of the Law of the Azerbaijan Republic on Introducing Addenda and Amendments in Several Legislative Acts of the Azerbaijan Republic No. 688-IIQD of 11 July, 2004 to the ninth part of Art 130 of the Constitution of the Azerbaijan Republic, in: Sbornik postanovlenii Konstitutsionnogo suda Azerbaid-zhanskoi Respubliki po individualnym zhalobam, p. 524).
under new circumstances relating to the violation of human rights and freedoms, but it does not serve the efficient restoration of the violated rights.”59
Unfortunately, a certain amount of ambiguity in the current legislation is sometimes responsible for the appearance of acute situations in our country due to a delay in the final settlement of cases in courts. For example, in keeping with procedural legislation, on the basis of a Constitutional Court decision during the proceedings under new circumstances related to the violation of human rights and freedoms, invalidated judicial acts should be annulled by the Supreme Court Plenary Session. This in itself gives rise to several questions. For example, to what extent is the annulment of invalid judicial acts legally legitimate? If it is legally legitimate, why should other types of acts which also fall under constitutional review and are vitiated on the basis of a Constitutional Court decision not be annulled by the respected body that adopted them or by a higher organ of state power?
On the other hand, how correct is turning the Supreme Court—the highest judicial body for civil, criminal, and other cases relating to the examination by ordinary and special courts—into a powerless “mediator” for reviewing cases with respect to the loss of the legal effect of the judicial acts issued in these cases on the basis of a Constitutional Court decision? Will this kind of “mediation” not be detrimental to the very name and reputation of the Supreme Court? For whom and for what purpose was it necessary to create a formal procedure with the participation of the Supreme Court Plenary Session, if it essentially only redirects the case to a court named by the Constitutional Court? Why, in so doing, is it necessary to have a “legitimate” loss of three months and artificial delay in court proceedings that have exceeded all reasonable deadlines as it is?
One of the questions creating tensions in relations between the Constitutional Court and courts of ordinary jurisdiction is taking the legal positions of the Constitutional Court into account in the activity of these courts. It is clear that such courts that examine cases again must act in keeping with a Constitutional Court decision. The high juridical force of Constitutional Court decisions applies to all its parts, as well as to the legal positions forming the foundation of its decisions. But it should also be kept in mind that, in most cases, these legal positions, having been “separated” from the corresponding decisions, are acquiring an independent significance. Due to the fact that their juridical force is equal to the juridical force of the Constitutional Court decisions and is of a general nature, it should be related not only to the case constituting the subject-matter of a specific constitutional case, but, as a source of law, should also apply to all similar cases encountered in law-enforcement practice. The Constitutional Court itself is noting a wider scope of action of the legal positions of its decisions and is pointing to the need to take them into account not only in law-enforcement practice, but also in future activity on legislative settlement.
Sometimes repeat complaints are lodged with the Constitutional Court after review in courts of ordinary jurisdiction concerned with judicial acts, the juridical force of which was overturned by the Constitutional Court. These complaints indicate that the violations established by it earlier were repeated in courts of ordinary jurisdiction during the review of cases. Citizens largely evaluate this as cases of deliberate delay of cases and judicial tyranny. In our practice, there were two cases when the Constitutional Court was forced to examine complaints again and overturn the juridical force of decisions of the Supreme Court Plenary Session because they were issued essentially with the same violations of the applicant’s rights that were noted in the previous decisions of the Constitutional Court, where it also declared these violations and the non-conformity of the judicial acts to the Constitution and laws. There is no doubt that with respect to the supremacy of the Constitution and priority of human rights and freedoms, the Constitutional Court believes such instances to be impermissible. But in order to prevent them, the position of the legislature should be clearly designated. Specific questions should be resolved within the framework of the judicial system. In any case, rapid settlement of all questions is the common task of both legislative and judicial powers.
59 Ibid., p. 526.
Another important aspect giving rise to misunderstanding in the relations between the Constitutional Court and courts of ordinary jurisdiction is interpretation of the Constitution and laws. In Azerbaijan, their official interpretation relates to the competence of the Constitutional Court.
As of the present, the Constitutional Court, on the basis of inquiries of the Supreme Court, has adopted 23 decisions on questions regarding interpretation of the laws and one decision on interpretation of the Constitution. In addition, it has also adopted five decisions on the interpretation of laws on the basis of complaints of courts of ordinary jurisdiction (the Sabail District Court, Kiapaz District Court, local economic court No. 1, Court of Appeal of the Azerbaijan Republic, and Sura-khan District Court).
Nevertheless, it is a well-known fact that in judicial law enforcement, it is also impossible to settle some questions without a judicial discretion. So a general understanding of the differentiation of cases is required—when there is a real need for official interpretation of the provisions of the Constitution or laws by the Constitutional Court, and when these provisions can be applied by courts without any official interpretation—on the basis of a judicial discretion.
The Constitutional Court itself does not consider its own authority to interpret the Constitution or laws to be its obligation to interpret any obvious provision of the Constitution or laws in the event courts appeal to it with this question. So, on several occasions, it did not accept their complaints to interpret the laws for examination, pointing out, in so doing, the need to resolve the questions raised in the complaints within the framework of a judicial discretion within the competence of courts on law enforcement.
On the other hand, instances are known when, during the examination of cases in courts of ordinary jurisdiction, the official interpretation of the provision of a law given by the Constitutional Court was not taken into account, and decisions were adopted that completely contradicted it. The Constitutional Court adopted decisions in which it noted the impermissibility of such instances.60
It is presumed that each entity of judicial law enforcement is obliged to have a clear idea and understand the constitutional law in practice by making use of the corresponding decisions of the Constitutional Court. Courts of ordinary jurisdiction should fully understand that ensuring legal stability, timely forecasting of government decisions, the authority of the Constitution, and uniform application of constitutional law requires that this law become generally recognized and apply to each as a standard.
C o n c l u s i o n
It stands to reason that a competent, independent, and impartial system ofjustice is a necessary prerequisite for protecting constitutionality and legality. But if there is no democratic system, there can be no legal procedure from the viewpoint of fair justice. And if there is not the latter, the law cannot be executed fully, and this means there is no living law.
Recognizing the independence of judicial power, the forefather of the theory of the division of powers—great French thinker Montesquieu—believed it to be no more than the “mouthpiece of the law.” At the beginning of the 20th century, a supporter of the division of powers—well-known Russian lawyer Vladimir Hessen—noted that implementation of this principle presumes, “on the one hand, supremacy of legislative power, and, on the other, subordination to executive and judicial power.”61 But the absence of any other references, apart from the current legislation, essentially places the
60 For example, Decision of the Constitutional Court of the Azerbaijan Republic of 17 June, 2004 on the Conformity of Legal Decisions to the Constitution and Laws of the Azerbaijan Republic regarding the Complaint of G.A. Mustafaeva (see: Sbornik postanovlenii Konstitutsionnogo suda Azerbaidzhanskoi Respubliki po individualnym zhalobam, p. 586).
61 V. Hessen, O pravovom gosudarstve. K reforme gosudarstvennogo stroia Rossii, Issue 11, Pravovoe gos-udarstvo i vsenarodnoe golosovanie, St. Petersburg, 1906, p. 27.
court on the same level as the executive bodies, making it equal to the applicant subordinate to the legislature.
The appearance in courts of the new function of constitutional review unknown to Montesquieu and his contemporaries radically changed the status of judicial power. “Granting courts the right to deem vitiated and annul the rules of power and administration bodies drastically changes the role of the court. It is no longer a body for settling individual disputes, its competence extends to rule-making. In so doing, the authority of the court is to a certain extent raised higher than the authority of the power body, since the court can annul the decision of this body, but it cannot annul a court decision.”62
Without forgetting the system of checks and balances, it should be kept in mind that judicial power is both a subject and an object of the limitations of the state’s plenary powers. The law-giver and the president appoint the members of the higher judicial bodies, the justiceship of a judge, the amount of financing the judicial bodies receive, and so on. It is the legislature which decides precisely which social relations should be legal relations, and, consequently, should be subject to judicial protection.
The creation ofjudicial power and the development of society’s civil self-organization have the same source—a change in the social behavior of the people. The components of judicial power as a social whole, in the form of its bearers and the institutions of civil society in different forms, interact with each other. The nature and direction of this interaction reflects the level of legal and political culture of both parties. The efficacy ofjudicial power as the most important institution of a democratic state ruled by law depends not only on the number of judges, their professional training, the sufficient financing of courts, and so on, but also on how actively citizens uphold their rights and on their adherence to legal forms of resolving conflicts.
The state of judicial power reflects the degree of development of constitutionalism, the level of protection of personal rights and freedoms, as well as the maturity of the civil society structures that are the foundation of democracy. One of the basic criteria of this state is how accessible is the judicial protection of rights and freedoms, the justice of the procedures being used, and the impartiality of the judges.
When talking about Azerbaijan, we must nevertheless not forget: “On the whole, the degree of autonomy, independence, and authority of judicial power in the European states is determined by historical features and traditions, the level of legal conscience and legal culture of society, the dominance of a totalitarian or law-abiding state, and other factors.”63 An important role in this is played by the constitutional recognition of the progressive principles of the judiciary and legal procedure, as well as raising the prestige of constitutional justice.
“Time is required for the state not to be declarative, but to respect, observe, and protect human rights and freedoms in practice as its highest value. Long and intense work of political parties and other institutions of civil society is required for human rights and freedoms to begin defining the meaning, content, and application of the laws and the activity of the executive, legislative, and judicial powers, and of local self-government. In the final analysis, the task of a civil society and political parties as one of its institutions consists in making the Constitution, which declares personal rights and freedoms its highest value, a genuine and living law. Achieving this goal depends on the maturity and creative force of civil society, which should assimilate humanistic and democratic values and create a comprehensive system of legal procedures and institutions based on deep respect for human rights and freedoms.”64
62 R.Z. Livshits, “Sudebnaia praktika kak istochnik prava,” in: Sudebnaia praktika kak istochnik prava, Moscow, 1977, p. 7.
63 G.I. Nikerov, “Sudebnaia vlast v pravovom gosudarstve (Opyt sravnitel’nogo issledovaniia),” Gosudarstvo i pravo, No. 3, 2001.
64 V.D. Zorkin, op. cit., p. 163.
The Constitutional Court of the Azerbaijan Republic is exerting every effort to affirm the principles of the supremacy of the Constitution and respect for human rights and freedoms in the interrelations among all the state bodies, society, and each of its members—including by means of implementing the rules and standards of international law. By playing a significant role in forming democratic institutions of society and a law-abiding state, ensuring people’s power in its diverse forms, upholding the constitutional principle of the division of powers, forming judicial power, establishing the generally accepted principles and standards of international law as a concentrated legal expression for achieving progress in world social development, the Constitutional Court has become an authoritative and pivotal body of the young Azerbaijani state.
Rustam MAMEDOV
Ph.D. (Law),
head of the Department of International Public Law,
Baku State University (Baku, Azerbaijan).
DISARMAMENT AND DEMILITARIZATION IN THE CASPIAN SEA FROM THE VIEWPOINT OF INTERNATIONAL LAW
Abstract
The article examines the role of international law in regulating the naval activity currently unfolding in the Caspian Sea region. In this context, the author looks at ways to limit military activity: demilitarization, neutralization, non-
militarization, and so on. The conclusions he draws are based on the standards of international law and international law practice and reflect a realistic picture of the military-political processes going on in this region.
I n t r o d u c t i o n
For almost two centuries, the Caspian was considered Russia’s “inland sea,” and it was the only country with the right to engage in naval activity there. So it is unlikely we shall find a source indicating the qualitative characteristics of this unique kind of military activity. No one knows how many weapons were deployed there or when, or what submarines cruised there, which, incidentally, they still do. We only know that in the Soviet era, the Caspian was part of the action zone of the Soviet Union’s southern military ventures. This vector was considered the most important, since “uninvited” guests always came from the south.
