Azerbaijan, Baku, August 25 / Trend , K.Zarbaliyeva /
Irrespective of the gravity and the motive of the crime, persons committing crimes in Azerbaijan are arrested. The high proportion of arrests in comparison with other preventive measures has caused dissatisfaction amongst both the population and legal community.
Due to a failure to obtain statistics from the relevant agencies regarding court appeals and decisions which determine punishment in the form of arrest over the last six months of this year, we were forced to quote results from monitoring conducted by the Lawyers Committee for Human Rights in May-November 2008.
According to the data, the district (city) and military courts of the cities and regions, where the monitoring was conducted, received 812 submissions from the prosecutor's office for the application of preventive punishment in the form of arrest. Of the submissions received, 806 were implemented and six were replaced with other preventive measures. The interesting fact is that during the reported period, there was not one submission that was not fulfilled. Complaints were received on eight of the decisions made, of which only one was satisfied.
Under the requirements of the criminal law procedure, a person can be arrested if accused of a crime whose implementation would mean more than a 2 year imprisonment, if there is reason to believe that he/she is hiding from the authorities, which are carrying out the criminal procedure, concealing and falsifying evidence, having an illegal influence on participants in the criminal procedure or will again commit a crime and create a threat to society. When issuing a verdict, an investigation agency or a court must take into account the severity and character of his/her crime, as well as the criminal's personality, age, health, family, wealth and social status, finding a person in charge of them and their permanent place of residence, crimes committed previously and other important circumstances.
Before adopting the new Criminal Code, the authorities must issue sanctions for arrest from the prosecutor's office. The European Human Rights Court's resolutions point out that strong suspicion of a person's committing a crime is a prerequisite for his/her arrest. However, this type of suspicion is not enough for keeping a person under arrest long-term. Besides a strong suspicion, there must be other reasons to prolong arrest. These reasons include the opportunity to escape from the judiciary, destroy, hinder or obtain evidence, as well as the opportunity to commit another crime. These grounds should be realistic and supported by a reliable report. When extending an arrest term, courts must point out a reason and supporting evidence in their decisions.
60 submissions of the 812 presented by the accused party fall to crimes that do not pose a great danger to society, 535 were less serious, 193 serious, and 24 were very serious crimes, the Lawyers Committee for Human Rights reported.
According Judge of the Supreme Court Muzaffar Aghazadeh, after granting the authority to courts to make arrests, the number of arrests did not decline. When issuing a decision on an arrest, courts must be independent, Aghazadeh told Trend . The large number of arrests from judges' decisions is the irresponsibility of the judges, thinks the Supreme Court judge.
"When issuing an arrest sentence, a judge must justify his/her decision. To do this, a judge must examine the criminal case in depth, but many judges do not so. Courts pass decisions on arrest in cases when there is no need," said Aghazadeh.
The Supreme Court judge noted that, when passing decisions on arrest, courts must justify their decisions. "A decision on arrest makes investigation work easy. When taking other preventive measures, problems usually occur during the investigation, but this is not a reason to use arrest. Arrested persons are anxious, and they give any evidence. Such facts exist in practice," said Aghazadeh.
In June, due to this problem, the Chairman of the Supreme Court sent a letter to all appeals courts and recommended judges to be careful when making decisions on arrest, he added.
The Azerbaijani criminal procedure legislation defines preventive measures: house arrest, bail, obligation to not leave, personal guarantee, guarantee from a company, handing over to police control, handing over control, passing under supervision and removal from office. Although bail is outlined in the law as a preventive measure, it is not applied in practice. The court has no right to apply this preventive measure unless the accused or his counsels request it. The law set the amount for bail at 5,000-10,000 times minimum wage (minimum wage is 75 manat).
Aghazadeh believes that since bail is so high, the accused and his lawyer are not interested in applying such preventive measures. "Nobody will agree to avoid arrest by paying the amount, and then to be sentenced by a court. In certain crimes, a suspect prefers to sit in jail rather than to pay the amount," the Supreme Court judge said. Aghazadeh supports reducing the amount for bail.
When using arrest, prosecutors basically rely on assumptions and hypotheses, Lawyer Kamandar Nasibov told Trend . "Most of the decisions on arrest are based on assumptions. And judges, in their turn, confirm the submission just like a notary office," said the lawyer.
When applying arrest, the parties' equality is violated and the defense's arguments are not taken into account, said Nasibov.
The lawyer said that arrest, in most cases, is used as a means to put pressure on the accused. "When receiving evidence and trying to get an admission of the crime, arrest is used as a means of blackmail. The prosecution offices are not interested in applying other preventive measures," said Nasibov.
The experts concluded that statistics should be provided, the preventive measures on arrest should be analyzed and the causes of this situation done away with.
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