Azerbaijan

General information

Please describe the framework (legal provisions and established practice) governing the use of measures protecting witnesses and pentiti.

The fundamental legal provisions for the protection of witnesses and collaborators of justice are introduced in the Constitution of the Republic of Azerbaijan (1995) by Articles 12 (the highest priority objective of the state), 26 (protection of rights and freedoms of each person and citizen), and 31 (right о live in safety). Article 71 (guarantees of rights and freedoms of each person and citizen) imposes an absolute obligation on legislative, executive and judicial branches of power to protect the rights and freedoms of each person and citizen set out in the Constitution.

There are a number of legal provisions in various legal acts of the Republic of Azerbaijan describing and determining the categories of persons protected by the state. The most important instruments in this sphere are the law on State Protection of Persons Involved in Criminal Procedures '11 December 1998), the Law on Operative Investigation Activity (28 October 1999) and the Code of Criminal Procedure (1 September 2000).

According to Article 17 of the Law of the Republic of Azerbaijan on Operative Investigation Activity, Article 3 of the Law on State Protection of Persons Involved in Criminal Procedures and Article 123 of the Criminal Procedure Code, the persons protected by the state are the victims in criminal cases, their lawyers and witnesses, including other persons involved in criminal procedures.

However, other legislative acts such as the Law on Combating Terrorism (18 June 1999), the Law on National Security (29 June 2004) and the Law on Combating Trafficking in Persons (28 June 2005) dealing with specific threats and crimes (e.g. terrorism, trafficking in persons, etc.) also contain provisions guaranteeing the appropriate protection of the persons in question.

Under Article 95 of the Criminal Procedure Code, each person who is aware any facts of a criminal case may be invited to report as a witness on those facts during preliminary investigations and trials. The legislation of e Republic of Azerbaijan does not contain the concept of pentiti. However, ere is a provision on collaborators of justice in Article 3 of the Law on State protection of Persons Involved in Criminal Procedures. Sub-paragraph 1 of paragraph 2 of the given Article describes a collaborator of justice as a person who reports on a crime to the law enforcement agencies, or takes an active in detecting, preventing and/or revealing this or that crime.

In Azerbaijan, witnesses are summoned and interrogated under the procedure provided for by Articles 226-230 of the Code of Criminal Procedure. Under Article 95.6, a witness has the following rights:

- to be informed about the criminal case for which he/she is summoned to testify;

- to turn down the interpreter participating in the interrogation;

- to make requests;

- to refuse to testify against him/herself, his/her close relatives, and to submit materials and information;

- to use necessary materials (documents, maps, etc.) while testifying on facts, circumstances and places which are difficult to memorise;

- to be interrogated in the presence of his/her lawyer;

- to be compensated for expenses and material damages deriving from the

criminal proceedings, etc.

2. Please describe the framework (legal provisions and established practice) governing the use of measures encouraging witnesses and pentiti to co-operate with justice.

In Azerbaijan there are legal provisions governing the use of measures encouraging witnesses and pentiti to co-operate with justice agencies. These provisions could be split into two categories:

provisions concerning collaborators of justice, which allow them to reduce their own sentence;

provisions encouraging witnesses and pentiti by fixing rules in relation to the guarantees for their security and material maintenance.

Thus, it is possible to find articles in legislative acts of the Republic of Azerbaijan, which take the collaboration of a criminal sufficiently into account. Article 30 (voluntary refusal from the commission of a crime) of the Criminal Code of the Republic of Azerbaijan (1 September 2000) states that "any person, who voluntarily and definitely refuses to complete the commission of a crime is released from responsibility". In accordance with Article 59 (mitigating circumstances) the following types of behaviour by any person involved in a crime are considered as the mitigating circumstances (Article 59.1.9 and 59.1.10):

- to confess voluntarily to having committed a crime;

- to actively support the state bodies in revealing a crime and holding the other perpetrators of that prime responsible;

- to take an active part in searching and finding the property obtained as the result of criminal activity;

- to provide medical and any other necessary assistance to the victim of a crime;

- to compensate material losses and/or moral damages emerging from the commission of a crime, etc.

In addition, under Article 72, any person who commits a crime for the first time,which did not result in grave social dangers, may be released from criminal responsibility if he/she voluntarily confesses to his/her guilt, takes an active part in revealing the crime, recovers suffered losses, or eliminates the consequences of suffered damages by other means. Moreover, part VII of article 17 of the Law on Operative Investigation Activity stipulates that when member of the criminal group co-operating with law enforcement agencies and actively providing assistance to them in revealing the crime, commits offences not resulting in grave consequences, he/she may be released from criminal responsibility if he/she voluntarily confesses to his/her guilt and recovers losses. Legal provisions directed at guaranteeing the anonymity of witness and pentito, as the encouraging measures, are included in Article 14 of the Law on Operative Investigation Activity, Article 11 of the Law on State Protection of Persons Involved in Criminal Procedures, and Article 17.4 of the Law on Combating Trafficking in Persons.

Article 22 of the Law on State Protection of Persons Involved in Criminal Procedures, Article 17 of the Law on Operative Investigation Activity, Article 14 of the Law on Combating Terrorism, and Article 12-20 of the Law on Combating Trafficking in Persons provide the following rights and measures for witnesses and pentiti to encourage them to co-operate with justice agencies:

- right to salaries, awards, and other social guarantees;

- right to security (if necessary, their close relatives are also allowed to use this right);

- right to compensation for suffered losses and damages;

- if necessary, the duration of co-operation with law enforcement agencies is included in their term of professional service (with regard to collaborators of justice);

- financial maintenance provided for a collaborator of justice may be three times more than usual, when he/she operates within a criminal group as an undercover agent.

Can measures/benefits encouraging the co-operation of witnesses and pentiti be used in combination with protection measures (arrangements concerning trial proceedings, sentencing conditions, special penitentiary regimes, etc.)? If so, please specify and indicate under which conditions they are applied.

Yes,the use of some incentive measures/benefits in combination with protection measures is possible in practice. However, the use of some encouraging measures (reducing sentences, defining the type of punishment, etc.) in relation to witnesses and pentiti falls under the law courts' competence, and it is up to them for taking a decision on this matter.

4. For which kind of crime and under which circumstances can witness and pentito protection be applied? Can the measures be extended to the relatives or other persons close to the witness/pentffo?

According to Article 17, paragraph 1, of the Law of the Republic of Azerbaijan on State Protection of Persons Involved in Criminal Procedures, and Article 17, paragraph 4, of the Law of the Republic of Azerbaijan on Operative Investigation Activity, valid information obtained by security services on the existence of threats of murder, use of violence against protected persons and their immediate relatives, and destruction or damage of their property due to their input to the investigation of criminal cases or legal proceedings, gives grounds for taking security measures.

Article 15 of the Criminal Code establishes categories of crime, including crimes of non-grave danger to society, less grave crimes, grave crimes, and seriously grave crimes. However, there are no separate provisions in the legislative acts of the Republic of Azerbaijan specifying a list of crimes for which witness and pentito protection is to be applied. Nevertheless, according to the practice of law enforcement agencies of the Republic of Azerbaijan witness and pentito protection measures should preferably be applied for the following categories of crimes:

1. crimes against peace and humanity;

2. war crimes;

3. terrorism and terrorism related crimes;

4. a wide range of transnational crimes (trafficking in persons, illegal
migration, illegal circulation of drugs, etc.).

In accordance with paragraph 3 of Article 3 of the Law on State Protection of Persons Involved in Criminal Procedures, security measures may be extended to the close relatives of protected persons, if there is threat that such persons will be put under pressure in order to influence protected persons. Under Article 6 of the Law on Operative Investigation Activity and Article 14 of the Law on Combating Terrorism, protection measures concern close relatives of protected persons as well.

5. What urgent measures (e.g. immediate relocation to a secret place) can be taken in order to protect witnesses and pentiti?

According to Article 7 of the Law of the Republic of Azerbaijan on State Protection of Persons Involved in Criminal Procedures, the urgent security measures taken in respect of protected persons include providing defendants with special security facilities, notifying them of the existing threat, providing their temporary accommodation in safe places, safeguarding their apartments and property, and securing the confidentiality of information concerning them.

6. Which institutions are involved in the protection of witnesses and pentiti and what is their role (e.g. law enforcement agencies special independent agencies, prosecutor's offices, judicia authorities, etc.)? How does co-operation between the relevani institutions work in practice?

According to Article 6 of the Law of the Republic of Azerbaijan on State Protection of Persons Involved in Criminal Procedures, security services include authorities that adopt decisions on taking security measures and authorities taking security measures based on those decisions. According to the aforementioned Article, decisions on taking security measures in respect of protected persons are adopted by courts (judges), prosecutors and, upon prosecutor's approval, by investigators and investigation agencies, which conduct the investigation of criminal cases or have information concerning criminal cases. A relevant executive authority is assigned to carry out security measures in respect of persons protected by those decisions. According to the Decree of the President of the Republic of Azerbaijan on the Enactment of the Law of the Republic of Azerbaijan on State Protection of Persons Involved in Criminal Procedures, the Ministry of Internal Affairs and the Ministry of National Security of the Republic of Azerbaijan are empowered to carry out, within their respective authorities, the functions of "relevant executive authorities" provided for in paragraph 2 of the aforementioned Article 6.

7. Are there any specific provisions governing the protection of witnesses and pentiti in relation to acts of terrorism? If so, please specify. Are there any specialised counter-terrorism institutions? If so, what is their role in the protection of witnesses and pentiti in relation to acts of terrorism?

In general, all provisions related to the protection of witnesses and victims of crimes are also applied in cases of terrorist acts. Furthermore, according to Article 14 of the Law of the Republic of Azerbaijan on Combating Terrorism, besides the officials of relevant executive authorities directly participating in combating terrorism, persons combating terrorism and Who are protected by the state include persons permanently or temporarily assisting public authorities in preventing and detecting terrorist activities and in minimising the possible damage occurring as a result, and their immediate relatives if they have suffered damage to their health and property.

According to the Decree of the President of the Republic of Azerbaijan on the Enactment of the Law of the Republic of Azerbaijan on Combating Terrorism, the President of the Republic of Azerbaijan is empowered to carry out, within his/her authority, the functions (providing anti-terrorist activities with necessary forces and facilities as well as directing the fight against terrorism) of the "relevant executive authority" provided for in Article 5, paragraph 1, while the Ministry of Internal Affairs, the Ministry of National

Security, the Ministry of Defence of the Republic of Azerbaijan as well as the Central Security Departments of the State Superior Bodies and Executive Authorities of the Republic of Azerbaijan (at present Special State Security Department) are empowered to carry out, within their respective authorities, the functions of "relevant executive authorities" provided for in Article 5, paragraph 2, of the aforementioned Law.

8. How does the framework governing the use of measures protecting witnesses and pentiti and encouraging them to co-operate with justice guarantee respect for human rights and individual freedoms? Please indicate the procedures in place, if any, to monitor compliance with human rights standards.

According to Article 12, paragraph 2, of the Constitution of the Republic of Azerbaijan "rights and liberties of persons and citizens listed in the present Constitution are guaranteed in accordance with international treaties, to which the Republic of Azerbaijan is a party". Article 148, paragraph 2, of the Constitution stipulates that international agreements, to which the Republic of Azerbaijan is a party, constitute an integral part of the legislative system of the Republic of Azerbaijan. In relation to this legal fact, it is necessary to mention the European Convention for the Protection of Human Rights and Fundamental Freedoms.

According to Article 12.1 of the Criminal Procedure Code of the Republic of Azerbaijan, authorities carrying out criminal procedures shall ensure compliance with the constitutional rights and liberties of persons participating in criminal procedures. Article 2 of the Law of the Republic of Azerbaijan on State Protection of Persons Involved in Criminal Procedures provides for the following: "the legislation on state protection of protected persons participating in criminal procedures consists of the Constitution of the Republic of Azerbaijan, the present Law and other legislative acts of the Republic of Azerbaijan". According to Article 5 of the same Law, principles of taking security measures in respect of protected persons include lawfulness, respect for human rights and liberties, fulfilment of security measures by authorities based on obligations of those authorities as well as protected persons. Article 11 provides for the securing of confidentiality of information concerning defendants. According to Article 3 of the Law of the Republic of Azerbaijan on Operative Investigation Activity, operative investigation activity is carried out according to the principles of lawfulness, humanism, respect for human rights and liberties, and by the harmonisation of undercover, secret and open methods of operation. Article 4 provides for the respect for human rights and liberties in the conduct of operative investigation activity, generally consisting of the following:

1. protection of human life, health, rights and liberties as well as legal interests of legal entities, etc. from criminal pursuits;

2. inadmissibility of dissemination of information concerning personal privacy, particularly personal and family secrecy and information

concerning the honour and dignity of any persons, without their consent.

In accordance with the provisions of the Law of the Republic of Azerbaijan on State Protection of Persons Involved in Criminal Procedures, security measures are applied by informing (Articles 19 and 20) protected persons, and in some cases on the bases of their consent (Articles 8,10,12, and 13) to the given procedures. Article 19 of the same Law stipulates the following rights of protected persons: to be aware of protection measures taken to ensure his/her security; to petition for the application or termination of protection measures; to demand the application of other measures prescribed by this Law, or the termination of one of them; to lodge a complaint in the Prosecutor's office or court against any illegal decisions or activities of authorities applying protection measures.

The latest legislative acts of the Republic of Azerbaijan stipulate legal provisions, which make obligatory the implementation of complex measures for the protection of victims. For example, the Law on Trafficking in Persons contains provisions in Chapter IV concerning the establishment of special institutions, shelters, and assistance centres aimed at the protection and rehabilitation of victims. According to the Law, assistance provided for victims covers legal, psychological and medical protection.

b. Procedural measures

9. At which stage(s), and in which context, is it possible for witnesses and pentiti to benefit from procedural measures of protection?

According to the requirements of Article 239.7 of the Criminal Procedure Code of the Republic of Azerbaijan, while personal identification as an investigative action is being conducted, the identification of a person based on a request of an identifying person may be conducted without his/her direct visual examination.

Rules of confrontation as an investigative action are set out in Article 235 of Criminal Procedure Code of the Republic of Azerbaijan. However, the disposition of the Article as well as the provisions of the remedial legislation do not provide for any alternative methods of protection from possible threats in cases of confrontation of accused persons with witnesses and victims of crime.

In addition, accused persons shall not leave the courtroom without the permission of the judge until recess is announced, and are obliged to comply with the rules of court sessions, in accordance with Articles 91.8.7 and 91.8.8 respectively. Furthermore, according to Article 310.6 of the Criminal Procedure Code of the Republic of Azerbaijan, appropriate measures may be taken upon a court decision in respect of persons coarsely violating the rules of court sessions after a warning has been given, with the exception of

public prosecutor and advocate. According to Article 310.6.3 of the Criminal Procedure Code of the Republic of Azerbaijan, one of these measures is expelling from the courtroom for the whole or some period of court examination.

Under Article 18.2 of the Law on Combating Trafficking in Persons, the state body carrying out criminal procedures has to take necessary measures to ensure the security of victims who suffered from trafficking in persons. Such protection measures shall continue until the existing threat has vanished, including the preliminary investigation, trial and post-trial periods.

10. Is there the possibility for witnesses and pentiti to obtain legal assistance at this (these) stage(s)?

According to Article 61, paragraph 3, of the Constitution of the Republic of Azerbaijan, "every person has the right to be assisted by a lawyer from the moment of detention, arrest or accusation for a crime by competent state authorities". Furthermore, under Article 67 of the Constitution, "every person detained, arrested for and/or accused of the commission of a crime will be immediately informed by the competent state bodies about his/her rights, reasons of his/her detention, arrest and institution of criminal proceedings against him/her".

Articles 11 and 14 of the Law of the Republic of Azerbaijan on State Protection of Persons Involved in Criminal Procedures respectively envisage that the confidentiality of information concerning protected persons is preserved and closed sessions are held in cases of participation of defendants.

Furthermore, according to Article 19.3 of the Criminal Procedure Code of the Republic of Azerbaijan, during the interrogation of witnesses or victims of crime, the authority conducting the investigation has no right to prohibit the participation of the person invited as a defender in criminal procedures.

11. Are there alternative methods of giving evidence which allow the protection of witnesses and pentiti from intimidation resulting from face to face confrontation with the accused? If yes, please specify (e.g. full or partial anonymity, video-conference, disguise, exclusion of the defendant from the courtroom when the witness is giving evidence, exclusion of the media or the public from the trial, etc.) and indicate under which conditions these methods are used.

In accordance with the remedial legislation, statements of witnesses or victims of crimes and testimonies of anonymous witnesses or victims of crimes may not be considered as credible evidence prior to court examination. Accordingly, any evidence obtained in compliance with Article 145 of the Criminal Procedure Code of the Republic of Azerbaijan, is evaluated based on its pertinence, admissibility and reliability. Moreover,

during the preliminary investigation, witnesses and victims of crime are interrogated in compliance with the provisions of Articles 230-231, whereas during the court examination they are interrogated in compliance with the provisions of Articles 328 and 330 of the Criminal Procedure Code of the Republic of Azerbaijan. Prior to interrogations they receive warnings about the responsibility for giving false testimonies provided for in Article 297 of the Criminal Code of the Republic of Azerbaijan. Only after that may testimonies of witnesses and victims of crime in criminal matters be considered as credible evidence.

12. On which grounds and on the basis of which criteria can anonymity be granted? Is there the possibility to obtain legal assistance at this stage?

Information given by victims of crime shall be executed upon their testimonies and only after that may it be considered as evidence in criminal matters.

13. Are pre-trial statements of witnesses and pentiti and testimonies of anonymous witnesses and pentiti regarded as valid evidence? If yes, under which conditions?

According to Article 91.5.18 of the Criminal Procedure Code of the Republic of Azerbaijan, accused persons have the right to raise objections against unlawful actions of the authority conducting criminal procedures, while according to Article 91.5.39 of the Criminal Procedure Code of the Republic of Azerbaijan, they also have the right to raise objections against unlawful factions of other parties participating in criminal procedures.

14. Is it possible, and if so, under which conditions, to use information provided by "pontiti¹? How is their credibility assessed?

The possibility and conditions of the use of information provided by "pentiir a re evaluated on the bases of provisions of the Criminal Procedure Code of he Republic of Azerbaijan. If such information is obtained, collected and documented in accordance with the appropriate provisions of the Criminal Procedure Code then it is possible to use it.

15. Which are the opportunities for the defence to exercise its rights, including the right of the accused to challenge the witness '/pentito's credibility in criminal proceedings (including at the pre-trial stage) and the respect of the "equality of arms" principle?

Under paragraph 3 of Article 63 of the Constitution, proof obtained illegally cannot be used for the purposes of justice. Furthermore, under Articles 7 and 1.13 of the Law on Courts and Judges {10 June 1997) based on constitutional Article 127, trials are held on the bases of principle of equality before the law and court, and the principle of contest.

с. Non-procedural measures

16. At which stage(s), and in which context, is it possible for witnesses and pentiti to benefit from a protection programme?

According to Article 6 of the Law of the Republic of Azerbaijan on State Protection of Persons Involved in Criminal Procedures, decisions on taking security measures in respect of protected persons are adopted by courts (judges), prosecutors and, upon prosecutor's approval, by investigators and investigation agencies, which conduct the investigation of criminal cases or have information concerning criminal cases. Article 17 of the same Law provides that where investigation agencies, investigators, prosecutors or courts (j^ud9^es) ^nave obtained information (request) about threats to the security of protected persons, they shall examine this information (request) and shall take decisions within at least three days, and in some cases immediately, on taking security measures or on refraining from taking security measures.

17. Is there the possibility for witnesses and pentiti to obtain legal assistance at this (these) stage(s)?

Please see the reply to question 9.

18. What is the procedure for admittance to a protection programme? Please specify, in particular, who takes the initiative, the criteria for admittance, the assessment of the relevance of a testimony and how admittance to the programme is formalised.

Please see the reply to question 4, paragraph 2.

19. Please indicate the measures that can be adopted for the protection of witnesses and pentiti (e.g. surveillance of the residence, physical protection, protection of personal records, relocation, change of identity, subsidies, assistance in job search, relocation of a detainee to another prison or to special units).

The Law of the Republic of Azerbaijan on State Protection of Persons Involved in Criminal Procedures of 11 December 1998 provides for security and social protection measures for victims and witnesses in criminal matters and other persons involved in criminal procedures. Article 7 of Part 2 of the same Law includes the list of security measures taken in respect of protected persons:

1) Protection of protected persons, their residence and property;

2) Providing protected persons with individual security facilities and notifying them of the existing threat;

3) Temporary accommodation of protected persons in safe places;

4) Securing the confidentiality of information concerning protected persons;

5) Providing protected persons with new jobs, new places of residence, and changing their workplaces or educational institutions;

6) Changing their documents and appearance;

7) Holding closed court examinations (hearings) in cases of protected persons' participation, in a manner determined by the legislation;

Furthermore, Article 16 of the same Law allows for the following measures to be taken so as to ensure the security of detained persons or persons serving the sentence of imprisonment:

1) Transfer from one place of detention, isolation ward or prison to another;

2) Keep them in separate or in one-man cells;

3) Change the preventive punishment in a manner set out in the remedial legislation of the Republic of Azerbaijan.

Article 17 of the Law of the Republic of Azerbaijan on Operative Investigation Activity also envisages the social and legal protection of persons co-operating with bodies dealing with operative investigation activity.

20. What can the duration of a protection programme be? Which are the procedures for assessing the degree of danger for the witnesses/pent/t/ and their compliance with the obligations of the programme? Is it possible to challenge a decision of suspension, revocation or termination of a protection programme?

According to Article 18 of the Law of the Republic of Azerbaijan on State Protection of Persons Involved in Criminal Procedures, security measures shall be cancelled in cases, where:

1) terms of taking security measures have expired;

2) the existing threat has vanished;

3) there is an application submitted by the person in respect of whom security measures are taken;

4) in spite of written notifications, protected persons do not comply constantly with well-grounded orders of authorities taking security measures.

fProtected persons may lodge complaints in a court or prosecution office against adopted decisions. Complaints should be immediately reviewed. Complainants shall be notified in writing of the adopted decisions within three days.

d. International co-operation

Which measures (e.g. use of modern telecommunications means, assistance in relocating protected witnesses, exchange of information between witness protection authorities) have been

adopted in the context of mutual legal assistance in order to facilitate international co-operation? How are the financial implications of international co-operation activities dealt with?

The mentioned measures are restricted primarily to information exchange.

22. Has your country entered international (bilateral or multilateral) agreements on the protection of witnesses and pentiti? If so, please indicate what kind of provisions they include.

Generally, international agreements in the field of mutual legal assistance existing in the contractual experience of the Republic of Azerbaijan can be distinguished as follows:

1) Multilateral international agreements on mutual legal assistance (e.g. European Convention on Mutual Assistance in Criminal Matters 1959, and its Additional Protocol 1978; CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 1993, etc.);

2) Multilateral intergovernmental agreements on combating certain crimes (e.g. UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents 1973; International Convention for the Suppression of Terrorist Bombings 1997);

3) Bilateral intergovernmental agreements on extradition and agreements on mutual assistance and legal relations in civil, family and criminal matters, namely: the Republic of Azerbaijan concluded 6 agreements on mutual assistance (with the Russian Federation, the Republic of Turkey, Georgia, the Republic of Uzbekistan, the Republic of Kazakhstan and the Republic of Lithuania), 3 agreements on extradition (with the Republic of Bulgaria, the Islamic Republic of Iran and the Republic of Kirghizistan) and 5 agreements on surrender of convicted persons (with the Russian Federation, the Republic of Kazakhstan, the Republic of Kirghizistan, Ukraine and the Republic of Uzbekistan).

23. How can international co-operation in the field of the protection of witnesses and pentiti be improved?

e. Statistics

f. Proposals and comments

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