Analysis of the Khojaly genocide from the prism of substantive and procedural legal norms: proceedings in absentia and jurisdiction problem
Study of the material and procedural grounds for the establishment of the Khojaly Tribunal in the Republic of Azerbaijan. Analysis of the legal foundations of the Khojaly Tribunal and comparison of national legislation with international standards.
| Рубрика | Государство и право |
| Вид | статья |
| Язык | английский |
| Дата добавления | 24.02.2024 |
| Размер файла | 333,3 K |
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Azerbaijani criminal procedural legislation
Court jurisdiction. As the basis of the legislative system of the Republic of Azerbaijan, the Constitution of the Republic of Azerbaijan defines the foundations of judicial power. According to Article 125 of the Constitution, judicial power in the republic is exercised only by courts. At the same time, according to Part VI of that article, it is prohibited to apply unspecified legal methods and create emergency (special) courts for the purpose of changing the powers of courts (Constitution of the RA, 1995).
The first behaviour prohibited in the mentioned norm is the application of certain legal methods that lead to the change of judicial powers. “Unspecified” should be understood as methods not prescribed by law. The legislator chose this way to avoid potential arbitrariness. Judiciary powers in question are reflected in the international agreements, the Constitution, and most importantly, the Law “On Courts and Judges” which the Republic of Azerbaijan is a supporter of. In addition to defining the judicial system in Azerbaijan in detail, that law determines which cases they are competent for. However, there are many blanket norms in this law. For example, although Article 25 determines the procedure for the Felony Court to hear criminal cases attributed to it by law, it is important to refer to the Criminal Code and the Criminal Procedure Code in order to clarify which acts are specific serious or particularly serious crimes, including jurisdictional issues (Law On Courts and Judges, 1997).
In Article 23 of the Criminal Procedure Code, instead of the expression “change of judicial powers”, the expression “usurpation of judicial powers” is used. This emerges the question - is “change” the same as “appropriation”? Or the question can be put another way - does “changing judicial powers using unspecified legal methods” mean “usurpation” in all cases? We believe that the second is broader and includes the first. However, the main obstacle to creating a potential tribunal on Khojaly is another prohibition of the Constitution.
Another behaviour prohibited by Part VI of Article 125 of the Constitution is the establishment of special courts. Unfortunately, neither the Constitution nor the Law “On Courts and Judges” indicates the meaning of this term. The Cambridge Dictionary defines an emergency (special) court as: a court created for an exceptional and temporary purpose (such as a commission to try alleged war criminals or a tribunal to hear claims for war damages against a state by nationals of the victorious state)15. In addition, we should note that special court should not be confused with specialized court, even though they are similar in English. Specialized courts are courts with a narrower jurisdiction compared to district (city) courts, and their activities are legal, but the creation of an emergency court is illegal in Azerbaijan. Therefore, it is not possible for Azerbaijan to establish a Tribunal by adopting a separate law on the example of Bangladesh in the current conditions. The Lebanese experience is somewhat controversial. Because, unlike in Bangladesh, the tribunal in Lebanon was established by an international power in agreement with the government. In other words, its creation had passed a certain international procedure, and most importantly, the UN was also interested in the creation of such an institution. In this case, it is necessary to analyze the force ratio of international agreements and the Constitution of Azerbaijan. As we mentioned at the beginning of this article, taking into account the requirement of Article 151 of the Constitution, the Constitution has a higher legal force. As a result, it is impossible to create any tribunal in Azerbaijan. For this to happen, the text of the Constitution must be changed / amended.
As a result of the interpretation of Article 125, the only way out is to conduct criminal proceedings in courts established by law in the Republic of Azerbaijan. It is assumed that the persons accused of committing crimes in the Khojaly genocide are military personnel. According to Articles 68 and 74 of the Criminal Procedure Code, the court competent to hear cases in such cases, even if the crime was committed with the participation of a non-military person (1), or if at least one of the criminal cases to be joined falls under the jurisdiction of the military court (2), are considered military courts. If we approach the issue in general, in our opinion, taking into account the requirement of Article 216 of that code and the territorial jurisdiction, the competent court to hear the Khojaly Case is the Ganja Military Court (Code of Criminal Procedure, 2000).
Discontinuance/suspension of criminal prosecution and the ratio of absentee proceedings. Article 53 of the Criminal Procedure Code of the Republic of Azerbaijan specifies the grounds for stopping criminal prosecution. Three of them attract special attention - hiding from the investigation or court of the person who should be involved/brought as an accused person (in original - taqsirlandirilan yaxs qisminda calb edilmali olan yaxsin istintaq va ya mahkamadan gizlanmasi) (53.1.3), temporary impossibility of participation in the criminal process due to the person being outside the borders of the Republic of Azerbaijan (in original - yaxsin Azarbaycan Respublikasi hududlarindan kanarda olmasina gora cinayat prosesinda iytirakinin muvaqqati mumkunsuzluyu) (53.1.4) and extradition of the persecuted person (in original - taqib edilan yaxsin ekstradisiyasi) (53.1.5) (Code of Criminal Procedure, 2000). Let's analyze these three cases separately.
First, the meaning of the expression gizlanma (hide/hiding) must be considered. According to the explanatory dictionary of the Azerbaijani language, hiding means to be in a covered (ortulu in Azerbaijani) place so that others cannot see or find it (Azorbaycan dilinin izahli lugoti. ikinci cild, 2006, p. 254) The word ortulu (covered) in this context is used figuratively and means to be hidden (Azarbaycan dilinin izahli lugoti. U?uncu cild, 2006, p. 554). By summarizing them, it is possible to give such a definition: hiding - a set of actions aimed at not being found, containing a certain place or places. In fact, if we go a little further, the Special Tribunal for Lebanon can be considered the equivalent of the term abscond in Rule 106.
Another expression that needs linguistic analysis in Article 53.1.3 is the person who should be involved/brought as an accused person. This statement clearly shows that the expression “should be involved/brought” indicates that the rules contained in articles 223-225 of the Code of Criminal Procedure of Azerbaijan should not be applied, but that the application of these rules is necessary. A very interesting nuance is revealed here - if the new criminal procedural code had not been adopted in 2000, the prosecution of persons suspected of committing a crime in Khojaly would have had to be stopped. However, if we pay attention to the chronology of the events, in 1992-1993, investigative actions were already started and decisions were made to involve the accused person (Prezident Kitabxanasi, 2023, pp. 10-16). When the Criminal Procedure Code entered into force in 2000, the rules for bringing the mentioned persons as accused persons had already been followed (for example, according to Article 223 of the Code, the investigator makes a reasoned decision, etc.). Therefore, Article 53.1.3 is not an obstacle for the continuation of the case and absentee trial.
Secondly, article 53.1.4 should consider muvoqqoti i$tirakin mumkunsuzluyu (the temporary impossibility of participation in criminal proceedings). The main issue here is how to interpret the expression mtivoqqoti (temporary). According to the explanatory dictionary of the Azerbaijani language, it means - not forever, transitory, shortliving (Azorbaycan dilinin izahli lugoti. U?uncu cild, 2006, p. 442). We believe that, taking into account the transitory feature, the suspension of the criminal prosecution due to the impossibility of the participation of the accused person in the criminal process due to the fact that the accused person is outside the borders of the state begins from the moment when the fact that the person is outside Azerbaijan is known to the investigative body or the court and continues until it is concluded that this situation is permanent. Unlike the starting point, the end point requires a subjective-objective assessment. Due to the fact that the term “temporary” is not reflected in the criminal procedural law and it is impossible to reflect a specific time period in the law, the facts of each criminal case should be given a differential assessment. For example, it cannot be considered reasonable that the period of more than 30 years in the Khojaly Case is still temporary. On the other hand, it is not realistic for the accused persons to come to Azerbaijan and participate in the investigative bodies or the court. Therefore, the “temporary” criterion exists until the conclusion that participation is unrealistic, hopeless.
Lastly, the issue of extradition in Article 53.1.5 should be analyzed. According to the information of the Prosecutor's Office, 286 accused persons have been searched16, and if the citizenships and locations of these persons are determined, an application should be made to request them from the relevant state. At this time, it is necessary to pay attention to the extradition law of that foreign country. Taking into account the presence of accused persons in the Khojaly Case in different countries of the world, the analysis of the relevant laws of the alleged countries is the subject of a separate article. Here, it is enough to mention the necessity of their analysis.
The starting moment of the suspension of criminal prosecution due to extradition is the moment of application to the relevant country as a result of determining the location of those persons.
The last moment is somewhat controversial. Generally speaking, the last moment is the non-abstract response of the state to which the extradition request is addressed. When we say non-abstract response, we mean concreteness that has the nature of confirmation or denial. The possibility of the non-provision of the response we are talking about and the purposeful prolongation by a foreign state cannot be ignored. In such a case, in order to specify the last moment, it is necessary to look again at Article 53.1.5: “when the issue of extradition by a foreign state is established in the rule established by law”. According to the Commentary of the Criminal Procedural Code of the Republic of Azerbaijan, “the rule established by law” in connection with the extradition procedure (appeal to a foreign state, review of bilateral agreements, etc.) is such conditions that the proceedings stop until they are resolved (Commentary of the Code, 2016, p. 150). Also, the suspension decision is issued after the extradition request (Commentary, 2016, p. 150-151). Although the authors of the commentary noted these features, they did not address the issue of deliberate extension by a foreign state. In our opinion, the renewal of proceedings in the mentioned cases depends on the approach of the relevant criminal procedure body. We believe that the subjective assessment of Articles 53.1.3-53.1.4 can be applied mutatis mutandis to Article 53.1.5. A subjective assessment is necessary if intentional acts of extension of extradition significantly prejudice the administration of justice.
Although the starting and last moments of these three cases are proposed by us, it is also necessary to review Article 53.6 of the Criminal Procedure Code. According to this norm, criminal prosecution is not renewed until the grounds that led to its suspension disappear. If we approach the issue lex lata, it is necessary to wait for the grounds in articles 53.1.3-53.1.5 to disappear completely. This can result in abuse of law like the examples we gave. If we approach the issue lexferenda and analyze Article 53.6 with Article 8 of the Code, the disappearance of the grounds should be determined by a subjective-objective assessment. Example: If a person who should be brought as an accused hide from the investigation and trial, the prosecution stops and its fate remains uncertain. In this case, the criminal proceedings cannot achieve a number of goals (to fully and objectively investigate the circumstances of the case, to bring the perpetrators to responsibility, etc.). In order to solve this contradiction, the ratio of the rights and freedoms of the accused person with the need to solve the crime should be considered.
If the accused person's participation is possible and he intends to realize his desire to participate, if proceedings are carried out in absentia despite this, the right to a fair trial of that person is violated. However, if a person hides on purpose (absconds), if he has no intention of participating in the criminal process, the need to discover the crime comes to the fore. In particular, the Khojaly Case is of great importance in terms of the principle of legal certainty in the destiny of the Azerbaijani people, state and national self-awareness. In any case, we believe that Article 53 and related articles of the Criminal Procedure Code should be improved. Because the low level of precision in the law increases the possibility offraude a la loi. We think that rule 106 of the Rules of Procedure of the Lebanese Special Tribunal, which is called the determination of the intention to avoid the investigation or the impossibility of participation, can be considered as a good example.
As for the trial phase, according to Article 311.2 of the Criminal Procedure Code, a trial in absentia is allowed only in exceptional cases - the deliberate refusal/avoid of the accused person to appear in court outside the state (olka hududlarindan kanardan olan yaxsin galmakdan qasdan boyun qaqirmasi) (1), and the person accused of a crime that does not cause a great public danger, without preventing a comprehensive, complete and objective investigation of all the cases related to the criminal prosecution, files a petition for consideration of the charge brought against him in the court without his presence (2). In essence, there is some problem with the phrase “the deliberate refusal/avoid of the accused person to appear in court outside the state”. To avoid (boyun qaqirmaq) means to refuse, not to accept, not to undertake (Azorbaycan dilinin izahli lugoti. Birinci cild, 2006, p. 343). Therefore, this act can only be committed intentionally/deliberately, and the use of the term “deliberately” (qasdan) in the norm is superfluous. In particular, it is related to the expression of gizlonmo (hiding/abscond) in Article 53. There are only 2 important differences between these norms:
- The first difference is in dispositions. While Article 53 talks about the person who should be involved as an accused person, the subject under Article 311 is already an accused person, that is, by fulfilling the requirements of Articles 223-225 of the Criminal Procedural Code of Azerbaijan, the person in question has already acquired the status of an accused person;
- The second difference emerges on the basis of the first difference. There is no question of stopping the proceedings under Article 311. If either of the two cases mentioned above occurs, a trial will be held in absentia and a verdict will be issued.
Article 311 of the Code emphasizes the obligation of the presence of the accused's defense counsel during the review conducted without the presence of the accused. Therefore, the accused's non-participation is not equal to the failure to protect his rights. In general, if you look at the Constitution of the Republic of Azerbaijan, there are some articles that are not only a certain right, but also a guarantee and a certain protection mechanism (Asgarov, 2011, pp. 125-127, 137-138). For example, Article 60 of the Constitution is devoted to administrative and judicial protection. The main aspect that distinguishes rights from guarantees is the presence of a certain mechanism in the latter. Those protection mechanisms are also reflected in the state's laws and other normative acts. As an example, it is necessary to refer to the Criminal Procedure Code to get acquainted with the mechanism of protection of the rights of the accused. If we return to the Khojaly Case, the defence mechanism is valid for accused persons who evade investigation and trial. But they show by their respective actions that they are not interested in using this provision. Therefore, taking into account the requirements of Article 311 and other relevant articles, holding a trial in absentia is inevitable for the Khojaly Case.
Conclusion
As one of the very limited number of scientific studies conducted in the Republic of Azerbaijan regarding Khojaly events in absentia in recent years, in this article we approached the Khojaly events from the perspective of both material law and procedural law. Also, during the selection of evidence, we tried to achieve an objective study of the issue using archival materials, that is, primary evidence. This analysis led to different results.
Firstly, the study of archival materials related to Khojaly events suggests that the events that took place in Khojaly city in February 1992 should be given a legal assessment in court. Because the absence of a court verdict only theoretically allows to describe that act as any crime. There must be a valid court order as proof of the guilt of certain persons, which is also a requirement of the presumption of innocence.
Secondly, taking into account the collision of the principles of fairness and the inadmissibility of absentee trial proceedings, the current situation should be investigated for its solution. For this, not only what happened in 2023, but the events from 1992 to now should be considered. For example, research has shown that the adoption of a new criminal procedure code in 2000 eliminates the application of a provision in Article 53. Also, the principle of law should not lead to abuse. Thus, the hiding of the accused persons in other countries should not result in their remaining unpunished.
Thirdly, it is useful to use the comparative analysis method along with the historical method. A comparison of the practice of Bangladesh and Lebanon among themselves, as well as with the legislation of the Republic of Azerbaijan, as well as the difference between the approach of classical tribunals and modern trends, is necessary in conducting a potential judicial review of the Khojaly Case. The study showed that a tribunal on the example of Bangladesh cannot be established in Azerbaijan. Although the creation of a tribunal in the Lebanese example is theoretically possible, it is not considered politically successful. Because agreement with the UN and other procedural rules will cause some delay in the already delayed justice. The non-implementation of UN resolutions on the occupation of Armenia for 30 years gives us reason to come to this conclusion.
Fourthly, holding a court review is not illegal both from the perspective of international law and national legislation. The analysis of the norms of Article 53 of the CPC and the meeting of the circumstances prove the elimination of the circumstances that give grounds for stopping the criminal prosecution. Absentee trial (Article 311) is procedurally more fundamental.
Fifthly, although the legislation allows for absentee trial, we think that the law should be seriously changed. The Rules of Procedure of the Lebanese Special Tribunal are a good example for better regulation of public relations. Logical errors in the law should also be corrected.
Sixthly, the other necessity of holding a trial is the death of the accused persons due to certain reasons, the death of witnesses and victims in the case leads to the reduction of primary evidence and the failure to prove the actions of the accused persons in court. Taking into account the importance of the events of Khojaly for Azerbaijan, like the events of 1918, the holding of the trial is also important for the restoration of historical justice.
Seventhly, holding a court hearing in absentia does not mean that the desired actions have been carried out. The requirements of the legislation should be taken into account and a rational judgment should be made. We think that the judicial process should not be politicized as in the example of Bangladesh, the case should be looked at objectively, impartially and comprehensively, Bangladeshi explanations should not be put forward. Failed attempts at definition like the Special Tribunal for Lebanon should be avoided. Also, procedural equality, litigation and other such principles should not be violated, and all opportunities should be mobilized for the professional legal protection of accused persons who do not participate.
Finally, instead of creating a special court, one advantage of a national court adapted to international standards is the availability of higher appeals. For example, if there is one higher instance in the Lebanese Special Tribunal, if the Khojaly Case is tried, there will be two higher instances and additional mechanisms.
Putting these findings together, a judicial hearing is necessary to combat the climate of political impunity, and it is not fair to agree that these acts will remain a mere piece of archival material for years. Of course, in order to carry out this process, a number of formal-procedural requirements are needed, such as the prosecution's decision to renew the proceedings, sending the case to court. However, the most important issue is the emergence of the political will to conduct a judicial review, taking into account the existence of legal grounds. The research carried out by us confirms the possibility of judicial review both by international norms and by the Azerbaijani criminal and criminal procedural legislation.
References
1. The map was taken from the archive collection published by the Ministry of Foreign Affairs of the Republic of Azerbaijan on February 22, 2021.
2. Azsrbaycan Respublikasi Bas Prokurorlugunun rssmi internet sshifssi.
3. “Ilham Oliyev xalqa muracist edib” - Azsrbaycan Respublikasi Prezidentinin rssmi sshifssi (26.10.2020).
4. Information of the Press Service of the Prosecutor General's Office of the Republic of Azerbaijan.
5. For example, in Neumeister v. Austria, the ECtHR considers principles such as procedural equality and adversary to be an integral part of independent, fair and impartial judicial activity. This suggests that the principle of fairness is always in a special position compared to other principles, and when applying others, it is first checked whether they are fair or not. For additional information: Neumeister vs. Austria (27.06.1968). ECtHR, par. 43.
6. This term does not mean the specialized courts like commercial courts, administrative courts and etc. - Author.
7. International Crimes Tribunal-1. The chief prosecutor vs. Delowar Hossain Sayeedi (28.02.2013), para. 8. 120 pages. P. 5.
8. The National Archives.
9. The Prosecutor vs. Salim Jamil Ayyash and others, 2011, para. 76.
10. The Special Tribunal for Lebanon.
11. The Statute of the Special Tribunal for Lebanon.
12. Rules of procedure and evidences (last version)
13. Merriam-Webster. (n.d.). Special court. In Merriam-Webster.com dictionary.
14. Information provided by Gen Prosecutor's Office of Azerbaijan, op.cit.
15. On March 30, 2023, the General Prosecutor's Office of the Republic of Azerbaijan initiated a criminal case based on the facts of mass deportation, persecution and genocide of Azerbaijanis in 1918. More:
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