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A Guide to the Republic of Azerbaijan Law Research

 

By Ramil Isgandarov

 

Ramil Isgandarov Avaz is a Chairman of the “Azerbaijan Young Lawyers’ Union”. He holds a Master’s degree in European Law from the Western University in Baku.  He is an alumnus of the John Smith Fellowship Program (2005) in the United Kingdom and a participant of the International Visitors Program of the US State Department (2005).

 

Published September 2006
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Table of Contents

1. The Legal System of Azerbaijan Republic

a. Background information

b. Separation of powers

c. Legislative system

2. The Legislative Power

3. The Executive Power

a. President

b. Cabinet of Ministers

4. Judicial Power

a. Background

b. Constitutional Court of the Azerbaijan Republic

c. Supreme Court of the Azerbaijan Republic

d. The Courts of Appeal of Azerbaijan Republic

e. Economic Court

f. Procurator’s Office of the Azerbaijan Republic

5. Municipalities

6. Sources of law

a. Case Law

7. Links to the governmental bodies’ websites

8. Legal documentation

9. Law journals

10. Law schools

 

 

1. The Legal System of the Republic of Azerbaijan

a. Background information

The Republic of Azerbaijan was created on May 28, 1918. As a result of the intervention of the 11th Red Army, Azerbaijan lost its independence in April 1920 and in December 1922 became a part of the former USSR. Azerbaijan re-established its independence with The Constitutional Act on Restoration of the State Independence of the Republic of Azerbaijan on October 18, 1991.

 

The Azerbaijani law system is based on civil law system. The Constitution of Azerbaijan Republic has the highest legal force in the territory of Azerbaijan and acts directly. The Constitution of the Azerbaijan Republic is the basic foundation of the Legislative system in the Republic. The Constitution created the system of presidential republic with a separation of powers among the legislative, executive and judicial branches. The Constitution provides an adequate legal basis for the domestic implementation of International Law in general and International Human Rights Law in particular. The International Treaties to which Azerbaijan is a Party, are recognized as an constituent part of the internal legal system (Art. 148(II)) and given a higher hierarchical status in the case of a conflict with a national law (Art. 151). While expressly stipulating that an international treaty may not contravene the Constitution and laws adopted by referendum (Art. 151), see also Art. 130(III(6)), The Constitution at the same time implicitly, as a lex specialis rule, provides for the primacy of international human rights over the appropriate constitutional provisions (Art. 12). Thus Art. 12(II) of the Constitutions empowers domestic courts to apply International Human Rights treaties to which Azerbaijan is party. This is a very progressive statement which needs to be corroborated and developed by the judicial practice, particularly by the jurisprudence of the Constitutional Court.

 

b. Separation of powers

Azerbaijan Republic is a democratic, legal, secular, unitary republic.

In terms of internal problems state power in the Azerbaijan Republic is limited only by law, in terms of foreign policy—by provisions resulting from international agreements, wherein the Azerbaijan Republic is one of the parties.

 

State power in the Azerbaijan Republic is based on a principle of division of powers:

  • Milli Majlis of the Azerbaijan Republic exercises legislative power;
  • the executive power belongs to the President of the Azerbaijan Republic;
  • law courts of the Azerbaijan Republic exercise judicial power.

 

Legislative, executive and judicial power interact and are independent within the limits of their authority.

 

c. Legislative system

The legislative system consists of the following normative-legal acts:

·       Constitution;

·       acts accepted by referendum;

·       laws;

·       orders;

·       decrees of Cabinet of Ministers of the Azerbaijan Republic;

·       normative acts of central executive power bodies.

 

International agreements wherein the Azerbaijan Republic is one of the parties constitute an integral part of legislative system of the Azerbaijan Republic.

 

2. The Legislative Power

Legislative power in the Azerbaijan Republic is implemented by Milli Majlis (Parliament) of the Azerbaijan Republic. Milli Majlis of the Azerbaijan Republic consists of 125 deputies. Deputies of Milli Majlis of the Azerbaijan Republic are elected based on majority voting systems and general, equal and direct elections by way of free, individual and secret voting. Term of authority of each calling of Milli Majlis of the Azerbaijan Republic is 5 years. Every citizen of the Azerbaijan Republic not younger than 25 may be elected the deputy of Milli Majlis of the Azerbaijan Republic in an established order. Accuracy of results of elections is checked and approved by Constitutional Court of the Azerbaijan Republic as specified in the law.

 

The deputy of Milli Majlis of the Azerbaijan Republic looses his/her mandate in the following cases:

·       whenever during the elections there was falsification in calculation of votes;

·       on giving up the citizenship of the Azerbaijan Republic or accepting other citizenship;

·       on commitment of crime and whenever there is valid verdict of law court;

·       on taking position in state bodies, post in religious organizations, involvement in business, commercial or other paid activity (except scientific, pedagogical and creative activity);

·       on a voluntary basis;

 

Right of legislative initiative in Milli Majlis of the Azerbaijan Republic (right to submit for consideration by Milli Majlis of the Azerbaijan Republic drafts of laws and other questions) belongs to deputies of Milli Majlis of the Azerbaijan Republic, the President of the Azerbaijan Republic, Supreme Court of the Azerbaijan Republic, the Prosecutor’s Office of Azerbaijan Republic and Ali Majlis of Nakhichevan Autonomous Republic.

 

3. The Executive Power

a. President

Executive power in the Azerbaijan Republic belongs to the President of the Azerbaijan Republic.

Citizen of the Azerbaijan Republic not younger than 35, permanently living on the territory of the Azerbaijan Republic longer than 10 years, possessing voting right, without previous conviction, having no liabilities in other states, with university degree, not having double citizenship may be elected the President of the Azerbaijan Republic. The President of the Azerbaijan Republic is elected for a 5-year term by way of general, direct and equal elections, with free, personal and secret ballot.

 

The President of the Azerbaijan Republic is elected by the majority of more than the half of votes. The President of the Azerbaijan Republic enjoys the right of personal immunity. Honor and dignity of the President of the Azerbaijan Republic are protected by law.

 

The President of the Azerbaijan Republic signs the laws within 56 days after their presentation. If the President of the Azerbaijan Republic has objections against a law he may return it to Milli Majlis of the Azerbaijan Republic within specified term without signing, together with his comments. Should the President of the Azerbaijan Republic fail to sign Constitutional laws they will not come into force. If Milli Majlis of the Azerbaijan Republic accepts by majority of 95 votes laws that have been accepted previously by majority of 83 votes, and by majority of 83 votes the laws that have been accepted previously by majority of 63 votes, said laws come into force after repeated voting.

 

Establishing general procedures the President of the Azerbaijan Republic issues decrees, as per all other questions – he issues orders. Decrees and orders of the President of the Azerbaijan Republic they become valid from the day of their publication.

 

b. Cabinet of Ministers

For the implementation of executive powers the President of the Azerbaijan Republic establishes Cabinet of Ministers of the Azerbaijan Republic. Cabinet of Ministers of the Azerbaijan Republic is the highest body of executive power of the President of the Azerbaijan Republic.

 

The Cabinet of Ministers of the Azerbaijan Republic is subordinate to the President of the Azerbaijan Republic and reports to him.

 

The procedure of activity of Cabinet of Ministers of the Azerbaijan Republic is defined by the President of the Azerbaijan Republic.

 

The Cabinet of Ministers of the Azerbaijan Republic includes Prime-minister of the Azerbaijan Republic, his deputies, ministers and heads of other central bodies of executive power.

 

On a day when the newly elected President of the Azerbaijan Republic comes into his rights and begins carrying out his powers Cabinet of Ministers of the Azerbaijan Republic resigns.

 

As a rule, the Prime-minister of the Azerbaijan Republic takes chair at the meetings of the Cabinet of Ministers of the Azerbaijan Republic.

 

The Prime-minister of Azerbaijan Republic is appointed by the President of the Azerbaijan Republic on consent of Milli Majlis of the Azerbaijan Republic.

 

The proposed candidature for the post of Prime-minister of the Azerbaijan Republic is submitted for consideration to Milli Majlis of the Azerbaijan Republic by the President of the Azerbaijan Republic not later than one month from the day when the President begins carrying out his powers, or not later than two weeks from the day of resignation of Cabinet of Ministers of the Azerbaijan Republic.

 

The Cabinet of Ministers of the Azerbaijan Republic:

·       prepares draft of state budget of the Azerbaijan Republic and submits it to the President of the Azerbaijan Republic;

·       provides implementation of state budget of the Azerbaijan Republic;

·       provides implementation of financial-credit and monetary policy;

·       provides implementation of state economic programs;

·       provides implementation of state social programs;

·       carries out control over ministries and other central bodies of executive power, annuls their acts;

·       solves other questions delegated to it by the President of the Azerbaijan Republic.

 

Establishing general procedures the Cabinet of Ministers of the Azerbaijan Republic issues decrees, as per all other questions – it issues orders.

 

Decrees and orders of Cabinet of Ministers of the Azerbaijan Republic become valid from the day of their publication.

 

4. Judicial Power

a. Background

The judicial power in Azerbaijan is implemented by law courts.

 

The judicial power is implemented through the Constitutional Court of the Azerbaijan Republic, Supreme Court of the Azerbaijan Republic, Courts of Appeal of the Azerbaijan Republic, ordinary and specialized law courts of the Azerbaijan Republic.

 

The judicial power is implemented by ways of constitutional, civil and criminal legal proceedings and other forms of legislation provided for by law.

 

In the criminal legal proceedings, the Procurator’s Office of the Azerbaijan Republic and lawyers take part.

 

The judicial system and legal proceedings in the Azerbaijan Republic are determined by law.

 

Use of legal means aimed to change the authority of law courts and establishment of extraordinary law courts which are not envisaged by the law are prohibited.

 

Judges shall be citizens of the Azerbaijan Republic not younger than 30, having voting rights, higher juridical education and at least 5-year working experience in the sphere of law.

 

Judges are independent, they are subordinate only to Constitution and laws of the Azerbaijan Republic, and they cannot be replaced during the term of their authority.

 

Judges are immune.  A judge may be called to criminal responsibility only in accordance with law.  The authority of judges might be stopped only based on reasons and rules envisaged by the law.

 

b. Constitutional Court of the Azerbaijan Republic

The Constitutional Court of the Azerbaijan Republic consists of 9 judges.

 

Judges of Constitutional Court of the Azerbaijan Republic are appointed by Milli Majlis of the Azerbaijan Republic on recommendation by the President of the Azerbaijan Republic.

 

The Constitutional Court of the Azerbaijan Republic based on inquiry of the President of the Azerbaijan Republic, Milli Majlis of the Azerbaijan Republic, Cabinet of Ministers of the Azerbaijan Republic, Supreme Court of the Azerbaijan Republic, Procurator’s Office of the Azerbaijan Republic, Ali Majlis of Nakhichevan Autonomous Republic takes decisions regarding the following:

 

  • correspondence of laws of the Azerbaijan Republic, decrees and orders of the President of the Azerbaijan Republic, decrees of Milli Majlis of the Azerbaijan Republic, decrees and orders of Cabinet of Ministers of the Azerbaijan Republic, normative-legal acts of central bodies of executive power to Constitution of the Azerbaijan Republic;
  • correspondence of decrees of the President of the Azerbaijan Republic, decrees of Cabinet of Ministers of the Azerbaijan Republic, normative-legal acts of central bodies of executive power to the laws of the Azerbaijan Republic;
  • correspondence of decrees of Cabinet of Ministers of the Azerbaijan Republic and normative-legal acts of central bodies of executive power to decrees of the President of the Azerbaijan Republic;
  • in cases envisaged by law, correspondence of decisions of Supreme Court of the Azerbaijan Republic to Constitution and laws of the Azerbaijan Republic;
  • correspondence of acts of municipalities to Constitution of the Azerbaijan Republic, laws of the Azerbaijan Republic, decrees of the President of the Azerbaijan Republic, decrees of Cabinet of Ministers of the Azerbaijan Republic (in Nakhichevan Autonomous Republic – also to Constitution and laws of Nakhichevan Autonomous Republic and decrees of Cabinet of Ministers of Nakhichevan Autonomous Republic);
  • correspondence of interstate agreements of the Azerbaijan Republic, which have not yet become valid, to Constitution of the Azerbaijan Republic; correspondence of intergovernmental agreements of the Azerbaijan Republic to Constitution and laws of the Azerbaijan Republic;
  • correspondence of Constitution and laws of Nakhichevan Autonomous Republic, decrees of Ali Majlis of Nakhichevan Autonomous Republic, decrees of Cabinet of Ministers of Nakhichevan Autonomous Republic to Constitution of the Azerbaijan Republic; correspondence of laws of Nakhichevan Autonomous Republic, decrees of Cabinet of Ministers of Nakhichevan Autonomous Republic to laws of the Azerbaijan Republic; correspondence of decrees of Cabinet of Ministers of Nakhichevan Autonomous Republic to decrees of the President of the Azerbaijan Republic and decrees of Cabinet of Ministers of the Azerbaijan Republic;
  • settlement of disputes connected with division of authority between legislative, executive and judicial powers.

 

The Constitutional Court of the Azerbaijan Republic gives interpretation of the Constitution and laws of the Azerbaijan Republic based on inquiries of the President of the Azerbaijan Republic, Milli Majlis of the Azerbaijan Republic, Cabinet of Ministers of the Azerbaijan Republic, Supreme Court of the Azerbaijan Republic, Procurator’s Office of the Azerbaijan Republic and Ali Majlis of Nakhichevan Autonomous Republic.

 

Everyone claiming to be the victim of a violation of his/her rights and freedoms by the decisions of legislative, executive and judiciary, municipal acts set forth in the items 1-7 of the Para III of this Article may appeal, in accordance with the procedure provided for by law, to the Constitutional Court of the Republic of Azerbaijan with the view of the restoration of violated human rights and freedoms.

 

In accordance with the procedure provided for by the laws of Azerbaijan Republic the courts may file the Constitutional Court of Azerbaijan Republic a request on interpretation of the Constitution and the laws of Azerbaijan Republic as regards the matters concerning the implementation of human rights and freedoms.

 

The Ombudsman of the Azerbaijan Republic in accordance with the procedure provided for by the laws of the Republic of Azerbaijan for solving the matters indicated in items 1-7, para III of the given Article shall apply to the Constitutional Court of the Republic of Azerbaijan in cases where the rights and freedoms of a person had been violated by legislative acts in force, normative acts of executive power, municipalities as well as the court decisions VIII. The Constitutional Court of the Azerbaijan Republic exercises also other authorities envisaged in the present Constitution.

 

The Constitutional Court of the Azerbaijan Republic takes decisions as regards the questions of its competence. Decisions of Constitutional Court of the Azerbaijan Republic are obligatory all over the territory of the Azerbaijan Republic.

 

Laws and other acts, individual provisions of these documents, intergovernmental agreements of the Azerbaijan Republic cease to be valid in term specified in the decision of Constitutional Court of the Azerbaijan Republic, and interstate agreements of the Azerbaijan Republic do not come into force.

 

c. Supreme Court of the Azerbaijan Republic

The Supreme Court of the Azerbaijan Republic (see English decisions) is the highest judicial body on civil, criminal, administrative and other cases directed to general and specialized law courts; it, via the cassation procedure, shall administer the justice; gives explanations as per practices in activity of law courts in an order envisaged by legislation;.

 

Judges of Supreme Court of the Azerbaijan Republic are appointed by Milli Majlis of the Azerbaijan Republic on recommendation of the President of the Azerbaijan Republic

 

d. The Courts of Appeal of Azerbaijan Republic

The Courts of Appeal of Azerbaijan Republic shall be the higher courts considering the issues falling within their competences according to the legislation.

 

Judges of the Courts of Appeal of Azerbaijan Republic shall be appointed by the Milli Majlis of Azerbaijan Republic upon the recommendation of the President of Azerbaijan Republic.

 

e. The Economic Court

The Economic Court of the Republic of Azerbaijan is the highest legal body deciding economic disputes. Judges to the Economic Court are appointed in the similar manner to the other high courts.

 

f. Procurator’s Office of the Azerbaijan Republic

  • Via procedure and in cases specified by legislation, Procurator’s Office of the Azerbaijan Republic exercises control over fulfillment and application of laws; in cases envisaged by legislation it undertakes prosecution and carries out investigation; supports state incrimination in the law court; brings in an action in the law court; remonstrates against decisions of law court.
  • The Procurator’s Office of the Azerbaijan Republic is an integral centralized body based on subordination of territorial and specialized procurators to General Procurator of the Azerbaijan Republic.
  • The General Procurator of the Azerbaijan Republic is appointed to his post and dismissed from it by the President of the Azerbaijan Republic, on consent of Milli Majlis of the Azerbaijan Republic.
  • Deputies of General Procurator of the Azerbaijan Republic, procurators supervising specialized republican procurator’s offices, procurator of Nakhichevan Autonomous Republic are appointed to their posts and dismissed from their posts by the President of the Azerbaijan Republic on recommendation of General Procurator of the Azerbaijan Republic.
  • Territorial and specialized procurators are appointed to their posts and dismissed by General Procurator of the Azerbaijan Republic on agreement with the President of the Azerbaijan Republic.

 

5. Municipalities

Local self-government is carried out by municipalities.  Municipalities are formed based on elections.  The foundations of the status of municipalities shall be determined by given Constitution. The regulations of elections to the municipalities shall be determined by law.

 

The activity of municipalities is carried out by way of meetings, permanent and other commissions.  Meetings of municipalities are summoned by their chairmen.

 

The following questions are settled at the meetings of municipalities:

·       recognition of authority of municipality members, loss of their authority and termination of their authority according to legislation;

·       approval of in-house regulations of municipality;

·       elections of the chairman of municipality, his deputies, permanent and other commissions;

·       establishment of local taxes and duties;

·       approval of local budget and reports on its implementation;

·       possession of municipal property, use and disposal thereof;

·       acceptance and implementation of local programs of social protection and social development;

·       acceptance and implementation of local programs of economic development;

·       acceptance and implementation of local ecological programs.

 

Municipalities may be given additional authorities of legislative and executive power. To implement these authorities respective financing is required.

 

Implementation of such authorities will be controlled respectively by legislative and executive power bodies.

 

6. Sources of Law

On the base of Article 148(I) of the Constitution the legislative system of the Republic of Azerbaijan consists of the following normative-legal Acts:

·       The Constitution

·       Acts adopted via referendum

·       Laws

·       Decrees

·       Resolutions of the Cabinet of Ministers of the Republic of Azerbaijan

·       Normative Acts of central executive bodies: International Treaties, of which the Azerbaijan is a party, are constituent part of the Legislative system of the Azerbaijan Republic

 

Local Executive bodies within their competence can take decisions and instructions of the normative character, other Acts, which do not contradict Acts included in the Legislation system.

 

a. Case Law

The main difference in comparison with the Anglo-American system is that the Azerbaijani legal system is determined by statute, but in the Anglo-American system case law or judge-made law play an important role as a source of law. Generally in Azerbaijan Republic decisions of the courts are not used as a source of law.  Decisions of the Constitutional Court are the exception. The Constitutional Court of the Republic of Azerbaijan in its decisions gives official interpretation of the Constitution and the Laws of the Azerbaijan Republic…Art. 130(IV). Thus, by this way decisions of The Constitutional Court create new rule or norm which is binding in the whole territory of the Azerbaijan Republic, although other courts only applying existing law and referring appropriate decisions of the Constitutional Court. At this point decisions of the Constitutional Court may be considered as an additional source of law.

 

Unfortunately, for the moment there are no any printed or internet publications which compiles the cases from 1st, 2nd (Court of Appeal) and 3rd (Supreme Court) instances.

 

7. Links to the State Bodies’ Websites

 

8. Legal Documentation

According to the Constitution of the Azerbaijan Republic, the Laws and the Decisions of the Milli Mejlis (Parliament), Decrees and Orders of the President of the Republic of Azerbaijan come into force from the day of publication. If a different order is not envisaged in Decrees and Orders of the Cabinet of Ministers they come into force after the day of there publication. All these legal acts are published in the newspaper “Azerbaijan.  The “Azerbaijan” newspaper officially belongs to the Milli Medjlis (Parliament) of Azerbaijan Republic. 

 

In addition some branches of the government have their own official newspapers or journals.

  • “Azerbaycan Respublikasinin Qanunvericilik Toplusu” (Collection of Legislative Acts of the Republic of Azerbaijan) – Printed Publication.
  • “Ganunchuluq” (The Rule of Law) –official publication of the Ministry of Justice, Supreme Court and General Prosecutor’s office, in Azeri – Printed Publication.

 

The collected texts of the legislation are also available in editions published by private publishing houses:

  • “Collection of Codes of the Republic of Azerbaijan”, “Collection of Law Acts of the Republic of Azerbaijan” in 5 Volumes – (in Azeri) Qanun press, E-mail: ms@azdata.net.

 

The Codes of Azerbaijan Republic can be found at the following websites:

 

Internet law texts:

 

9. Law Journals

  • Qanun (The Law) - public-political, scientific law journal, in Azeri, E-mail: ms@azdata.net; qanun@rambler.ru.
  • Legal State and Law – public-scientific law journal, in Azeri, E-mail: urlit@azerin.com.
  • Advokat (The Advocate) – scientific-practical law journal, in Azeri, E-mail: lex@leks.baku.com.
  • International Law – public-political, scientific-practical law journal, in Azeri, with English summaries: Tel/Fax (+99 412-94 26 65)
  • Young Lawyer” Monthly Journal, published by Azerbaijan Young Lawyers’ Union

 

10. Universities with Law Schools