General Part
FIRST SECTION
Main Provisions
Chapter II
Purposes and basic principles of criminal proceedings
Article 17. Guarantee of the right to inviolability of domicile
17.1. Except in the circumstances provided for in this Code, nobody may enter a dwelling without the consent of those living there.
17.2. The examination and searching of residential, service or industrial buildings, and other investigative and procedural acts which limit the right to property may be carried out only in accordance with this Code on the basis of a court decision.
General Part
FIRST SECTION
Main Provisions
Chapter II
Purposes and basic principles of criminal proceedings
Article 18. Guarantee of the right to property
18.1. During the criminal prosecution the right to property, including the right to private property, may not be limited except in the circumstances provided for in this Code.
18.2. Property taken during the proceedings shall be noted in an appropriate manner in the records and included in a comprehensive list and a receipt shall be given to the owner of the property stating that the property will be kept safely.
18.3. During the criminal prosecution, the imposition of a fine and the seizure of property may be carried out only in accordance with a court decision.
General Part
SECOND SECTION
THE COURTS AND THE PARTIES TO CRIMINAL PROCEEDINGS
Chapter XIII
SECURITY OF THE RIGHTS AND LEGAL INTERESTS OF PARTIES TO CRIMINAL PROCEEDINGS
Article 123. The obligation to take government measures to protect victims, witnesses, accused persons and other participants in criminal proceedings
123.1. When the prosecuting authority detects circumstances in which the victim, witness, accused or other participant in criminal proceedings requires or may require protection from criminal activity, it shall take appropriate security measures, at the person’s request or on its own initiative, to ensure his protection by the state.
123.2. Security measures for the protection of those participating in criminal proceedings shall be carried out in accordance with the legislation of the Azerbaijan Republic.
123.3. Applications and requests by participants in criminal proceedings regarding measures for their security shall be examined by the prosecuting authority without delay and not later than 72 hours after receipt. The result of the examination of the application or request shall be made known to the applicant immediately, and a copy of the relevant decision sent to him by the prosecuting authority.
123.4. The applicant shall have the right to complain to a court within 5 (five) days of receiving a copy of the decision rejecting his application or request for security measures for his protection, or, if he does not receive a copy of the relevant decision of the prosecuting authority, to apply to the court with a view to security measures within 7 (seven) days of submitting his application or request.
123.5. If, after the rejection of his application or request for security measures for his protection, the person participating in criminal proceedings is threatened or attacked again, or if new circumstances arise which were not reflected in the application or request, he may again submit the application or request for the above-mentioned measures.
General Part
SECTION THREE
EVIDENCE AND PROOF
Chapter XIV
EVIDENCE
Article 124. Concept and types of evidence
124.1. Reliable evidence (information, documents, other items) obtained by the court or the parties to criminal proceedings shall be considered as prosecution evidence. Such evidence :
124.1.1. shall be obtained in accordance with the requirements of the Code of Criminal Procedure, without restriction of constitutional human and civil rights and liberties or with restrictions on the grounds of a court decision (on the basis of the investigator‘s decision in the urgent cases described in this Code) ;
124.1.2. shall be produced in order to show whether or not the act was a criminal one, whether or not the act committed had the ingredients of an offence, whether or not the act was committed by the accused, whether or not he is guilty, and other circumstances essential to determining the charge correctly.
124.2. The following shall be accepted as evidence in criminal proceedings :
124.2.1. statements by the suspect, the accused, the victim and witnesses ;
124.2.2. the expert’s opinion ;
124.2.3. material evidence ;
124.2.4. records of investigative and court procedures ;
124.2.5. other documents.
General Part
SECTION THREE
EVIDENCE AND PROOF
Chapter XIV
EVIDENCE
Article 125. The availability of evidence
125.1. If there is no doubt as to the accuracy and source of the information, documents and other items and as to the circumstances in which they were obtained, they may be accepted as evidence.
125.2. Information, documents and other items shall not be accepted as evidence in a criminal case if they are obtained in the following circumstances :
125.2.1. if the accuracy of the evidence is or may be affected by the fact that the parties to the criminal proceedings are deprived of their lawful rights, or those rights are restricted, through violation of their constitutional human and civil rights and liberties or other requirements of this Code ;
125.2.2. through the use of violence, threats, deceit, torture or other cruel, inhuman or degrading
acts ;
125.2.3. through violation of the defence rights of the suspect or accused, or the rights of a person who does not know the language used in the criminal proceedings ;
125.2.4. where the rights and duties of a party to the criminal proceedings are not explained, or not explained fully and accurately and, as a result, he exercises them wrongly ;
125.2.5. where the criminal prosecution and investigative or other procedures are conducted by a person who does not have the right to do so ;
125.2.6. where a person whose participation should be objected to, and who knows or should know the reasons precluding his participation, takes part in the criminal proceedings ;
125.2.7. where the rules governing investigative or other procedures are seriously violated ;
125.2. 8. where the document or other item is taken from a person unable to recognise it or who cannot confirm its accuracy, its source and the circumstances of its acquisition ;
125.2.9. where evidence is taken from a person unknown at the trial or from an unknown source ;
125.2.10. where evidence is taken through means conflicting with modern scientific views.
125.3. Information, documents and other items taken in the circumstances described in Article 125.2. of this Code shall be regarded as invalid and may not be used to prove any circumstance with a view to determining a charge correctly.
125.4. Material obtained through the violations described in Article 125.2. of this Code may be used as evidence of the violations concerned and the guilt of those committing them.
125.5. After a violation of the requirements of the Code of Criminal Procedure by the prosecution, the material whose evidential value is deemed to have been lost may be accepted as evidence at the request of the defence. In this case, such evidence may not concern other participants in the proceedings, but only the relevant suspect or accused. Acceptance of this material as evidence shall not mean that its accuracy cannot be disputed.
125.6. Any complaint lodged or decision taken on any matter significant to the prosecution concerned shall only confirm the fact that the complaint was lodged or the procedural decision was taken and shall not be accepted as evidence.
125.7. The prosecuting authority shall determine, either on its own initiative or further to an application by the parties to the criminal proceedings, whether information, documents and other items may not be used as evidence during the criminal prosecution, and whether they may be put to limited use.
125.8. If evidence is obtained in accordance with the requirements of this Code, it shall be for the objecting party to demonstrate grounds for its refusal.
125.9. When a criminal case is examined by the jury, the court president shall produce the material which cannot be accepted as evidence, explain its lack of legal justification to the jurors and prevent an erroneous point of view from being adopted by the parties to the criminal proceedings.
General Part
SECTION THREE
EVIDENCE AND PROOF
Chapter XIV
EVIDENCE
Article 126. Statements by the suspect, accused, victim and witnesses
126.1. Oral and written information received by the prosecuting authority from the suspect, accused, victim or witnesses in pursuance of this Code shall be considered as evidence.
126.2. Only statements based on the information or conclusions of a person directly comprehending the act and its causes, character, mechanism or development may be considered as evidence.
126.3. Information given to the prosecuting authority by the suspect, accused, victim or witnesses on the basis of hearsay may not be used as evidence. Only information derived from the words of a deceased person may exceptionally be accepted as evidence by court decision.
126.4. The value of evidence may not be assigned to statements given in the following situations :
126.4.1. when a person is agreed to be unable to comprehend or describe matters significant to the prosecution at the appropriate time ;
126.4.2. when a person refuses to undergo an examination by experts of his ability to comprehend or describe matters significant to the prosecution.
126.5. Information from persons who may not be questioned as witnesses shall not be used as evidence.
126.6. The accused person’s confession of guilt may be accepted as grounds for the charge against him only if confirmed by the contents of all the evidence on the case.
General Part
SECTION THREE
EVIDENCE AND PROOF
Chapter XIV
EVIDENCE
Article 127. The expert's opinion
127.1. The expert’s opinion, expressed in written form and based on his specialised knowledge of scientific, technical, artistic or professional fields, shall consist of :
127.1.1. his findings on the questions put to him by the prosecuting authority or the parties to the criminal proceedings, as well as on the investigation of other matters relating to his competence which emerge during the examination of the case file ;
127.1.2. a description of the investigation carried out by the expert to substantiate those findings.
127.2. The expert’s investigative techniques, the grounds for his answers to the questions asked, as well as other significant prosecution matters determined by the expert on his own initiative, shall be reflected in the expert's opinion.
127.3. The expert's opinion shall not be binding on the preliminary investigator, investigator, prosecutor or court; it shall be checked by the prosecuting authority in the same way as any other evidence and evaluated in the light of all the relevant facts. If the opinion is not approved, a reasoned decision to that effect shall be given.
Article 128. Material evidence
128.1. Any item that can help to determine circumstances of importance to the prosecution because of its characteristics, features, origin, place and time of discovery or the imprints it bears may be considered to be material evidence.
128.2. An item shall be considered as material evidence if so decided by the prosecuting authority.
128.3. The significance of an item as material evidence shall be accepted by the court if :
128.3.1. immediately after its acquisition, the item is described in detail and sealed, and other similar acts are carried out making it impossible significantly to alter the imprints it bears and its features or characteristics ;
128.3.2. the suspect, accused, victim or witness recognises it immediately before it is examined in court.
General Part
SECTION THREE
EVIDENCE AND PROOF
Chapter XIV
EVIDENCE
Article 129. The preservation of material evidence and other items
129.1. Material evidence shall where possible be packed and kept in sealed form in the case file; if it is of a large size, it shall be given for safekeeping to an organisation, institution or appropriate person, subject to their consent.
129.2. During the prosecution, as soon as the following items have been examined, and no later than 7 (seven) days after they were obtained, the prosecuting authority shall deposit in the state bank :
129.2.1. precious metals and stones, pearls and jewellery made from them ;
129.2.2. cash in national and foreign currency, cheques, securities, bonds and lottery tickets.
129.3. Cash in national or foreign currency acquired during the investigation as well as other securities shall be kept with the prosecution file if it has or they have individual characteristics of significance to the prosecution.
129.4. The material evidence and other items acquired during the case shall be kept by the prosecuting authority until their allocation is settled by final decision of the court and by the decision of the prosecuting authority to discontinue the prosecution. In the circumstances provided for in this Code, a decision on the material evidence may also be taken before the conclusion of the prosecution.
129.5. When a legal dispute concerning an item added to the prosecution file as material evidence has to be heard by a civil court, this item shall be kept until the decision on the civil case becomes final.
Article 130. Safekeeping of items during a criminal prosecution
130.1. When material evidence and other items are kept, and if they are examined by an expert or sent to another investigating authority, prosecutor or court concerned with the criminal case, the appropriate measures shall be taken to prevent these items from becoming lost, damaged, spoilt, disarranged or coming into contact with each other.
130.2. When a prosecution file is sent anywhere, all material evidence and other items sent with the file shall be recorded in the letter which accompanies the file, as well as on a separate list or in a note attached to the indictment. The places where the items are kept, if they are not sent with the prosecution file, shall be recorded in the above-mentioned documents.
130.3. Material evidence and other items sent by post or by hand shall be examined by the expert, preliminary investigator, investigator, prosecutor or judge and compared with the letter accompanying them, the list, the note attached to the indictment, the records describing their characteristics and acquisition and other prosecution material. A record shall be drawn up of the examination process and of its results.
Article 131. Decisions about material evidence before the end of the prosecution
131.1. Before the prosecution ends, the prosecuting authority shall return the following material evidence either to the owner or to the lawful holder :
131.1.1. perishable items ;
131.1.2. items which are in daily use at home ;
131.1.3. domestic animals, birds and other animals which need daily care ;
131.1.4. cars and other means of transport not retained to satisfy a civil claim or a property demand.
131.2. Where the owner or lawful holder of the items provided for in Article 131.1 of this Code is not known, or for some reason their return is impossible, these items shall be given to the appropriate organisations to be used, kept or cared for.
Article 132. Decisions about material evidence after the end of the prosecution
132.0. When the court gives a judgment or the prosecuting authority gives a decision to discontinue the prosecution, the following rules shall be observed in connection with the solution of matters relating to the material evidence :
132.0.1. the instruments used to commit the offence and belonging to the convicted person, as well as items which are prohibited from circulation, shall be confiscated and given to the appropriate organisations; if they are not of any value they shall be destroyed ;
132.0.2. other items of no value shall be destroyed or, at the request of interested persons, may be given to them ;
132.0.3. money and valuables removed from their owners as a result of the criminal act shall be returned to their holders, their owners or the legal heirs thereof ;
132.0.4. money and valuables which were obtained as a result of the offence, or are the subject of the offence, shall contribute by decision of the court to compensation for the damage caused by the offence; if the victim is unknown, they shall become state property ;
132.0.5. during the period for which the prosecution file is kept, documents that are material evidence shall be kept in the case file or shall be given to interested organisations and persons.
General Part
SECTION THREE
EVIDENCE AND PROOF
Chapter XIV
EVIDENCE
Article 134. Records of investigative procedures and court hearings
134.1. Records of investigative procedures and court hearings shall be documents drawn up in writing in accordance with this Code which confirm the prosecuting authority’s direct understanding of matters significant to the prosecution.
134.2. The records of the following investigative procedures, drawn up in accordance with this Code, may be used as evidence by the prosecuting authority :
134.2.1. examination of places and objects ;
134.2.2. body search ;
134.2.3. identification of persons and objects ;
134.2.4. seizure of property ;
134.2.5. search operations ;
134.2.6. attachment of property ;
134.2.7. confiscation of mail, telegraphic and other messages ;
134.2.8. interception of telephone or other conversations and interception of information sent by other technological means of communication ;
134.2.9. acquisition of information concerning not only financial transactions, bank account statements and tax payments but also personal, family, state, commercial or professional secrets ;
134.2.10. exhumation ;
134.2.11. questioning, confrontation and verification of testimony at the scene ;
134.2.12. taking of samples for examination ;
134.2.13. investigative experiments.
134.3. Records of the receipt of a verbal application regarding the offence, of a voluntary confession of guilt, of detention and of the explanation of persons’ rights and duties may be used as evidence confirming those facts.
134.4. The admissibility as evidence of records of investigative procedures which have not been registered or not been registered in time shall be decided by the court depending on the result of the investigation.
134.5. The incompleteness of the record of an investigative procedure may not be offset by the testimony of the preliminary investigator, investigator, prosecutor or circumstantial witness.
Article 135. Documents
135.1. Paper, electronic and other materials bearing information which may be of importance to the prosecution, in the form of letters, numbers, graphics or other signs, shall be considered as documents. A document setting out matters known to a person through his duties and his work, confirmed with his signature and drawn up in the form prescribed by legislation, shall be considered as an official document.
135.2. Documents which have the characteristics described in Article 128.1 of this Code may also be considered as material evidence.
135.3. Evidence in support of a charge shall be from the original documents or a true copy of the original. The use of copies of documents during criminal proceedings shall be permitted with the consent of the parties.
Article 136. Inclusion of documents in the prosecution file, their keeping in the file and their return
136.1. Documents shall be added to the prosecution file by the prosecuting authority and shall be kept in the case file for the whole period during which the file is kept.
136.2. When the lawful holder of the documents requires them for routine recording, accounting or other legal purposes, he shall be allowed to use them temporarily or to make copies thereof.
136.3. One year after the court judgment becomes final or after the prosecuting authority’s decision to discontinue the prosecution becomes final, the originals of the documents which are in the prosecution file may be returned to their lawful holders at the latter’s request. In this case, depending on where the prosecution file is kept, the investigator, prosecutor or court shall make copies of these documents, certify their validity and keep the copies in the file.
Article 137. The use as evidence of material obtained in the course of search operations
If material obtained as a result of a search operation is obtained in accordance with the law of the Azerbaijan Republic on search operations and is presented and verified in accordance with the requirements of this Code, it may be accepted as evidence for the prosecution.
General Part
SECTION THREE
EVIDENCE AND PROOF
Chapter XV
PROOF
Article 143. Collection of evidence
143.1. Evidence shall be collected during the investigation and court proceedings by questioning, confrontation, attachment of property, search operations, examination of places and objects, expert reports, presentation for identification and other procedures.
143.2. During the process of collecting evidence, the preliminary investigator, investigator, prosecutor or court shall have the right, at the request of parties to the criminal proceedings or on their own initiative, to request the presentation of documents and other items of significance to the prosecution by individuals, legal entities, officials and the authorities which carry out search operations, and to request checks and inspections by the authorised authorities and officials.
143.3. In accordance with this Code, defence counsel authorised to participate in criminal proceedings shall have the right, for the purpose of providing legal assistance, to present evidence and collect information, including the right to receive explanations from individuals and to request memoranda, references and other documents from various organisations and associations.
143.4. The suspect, accused, defence counsel, prosecutor, victim, civil party, defendant to the civil claim and their representatives, and individuals and legal entities, shall have the right to present objects and documents as well as oral and written information which may be regarded as evidence.
General Part
SECTION FOUR
COERCIVE PROCEDURAL MEASURES
Chapter XVIII
APPLICATION OF OTHER COERCIVE PROCEDURAL MEASURES DURING CRIMINAL PROCEEDINGS
Article 177. The right to forcibly carry out investigative procedures
177.1. The prosecuting authority may, by force, carry out investigative procedures to guarantee the normal course of an investigation; it may take measures to make participants wait for the start of these procedures and to prevent them from leaving the place where they are to be held.
177.2. If the person concerned does not consent to the investigative procedure and if a court decision is requested for its compulsory conduct, the prosecutor in charge of the procedural aspects of the investigation shall apply to the court if he agrees with the investigator's reasoned request.
177.3. As a rule, a court decision shall be required in order to conduct the following investigative procedures by force :
177.3.1. examination, search or seizure and other investigative procedures in residential, service or industrial buildings ;
177.3.2. the body search of a person other than a detained or arrested person against his will ;
177.3.3. the attachment of property ;
177.3.4. the confiscation of postal, telegraphic or other messages ;
177.3.5. the interception of conversations held by telephone or other means and of information sent via communication media and other technical means ;
177.3.6. the obtaining of information about financial transactions, bank accounts or tax payments and private life or family, state, commercial or professional secrets ;
177.3.7. exhumation.
177.4. With the exception of examination, search and seizure, other investigative procedures in residential, service or industrial buildings and the investigative procedures provided for in Articles 177.3.6 and 177.3.7 of this Code may be conducted only under by court decision. The investigator may conduct the following procedures by force without a court decision :
177.4.1. on the grounds and under the circumstances provided for in Article 243.3 of this Code, he may conduct inspections, searches and seizures in residential, service or industrial buildings ;
177.4.2. he may conduct body searches in the circumstances provided for in Article 238.2 of this
Code ;
177.4.3. he may seize property in the circumstances provided for in Article 249.5 of this Code ;
177.4.4. he may confiscate postal, telegraphic or other messages and intercept conversations held by telephone or other means and information sent via communication media and other technical means if there are circumstances in which evidence of serious or very serious offences against the individual or central government must be established without delay.
177.5. If the investigative procedures for which Articles 177.3.1, 177.3.2, 177.3.4 and 177.3.5 of this Code provide are carried out by reasoned decision of the investigator in circumstances allowing no delay, the investigator shall fulfil the duties laid down in Article 443.2 of this Code.
177.6. No court decision shall be necessary for the investigator to carry out the investigative procedures provided for in Article 177.3.1 of this Code in residential, service or industrial buildings with the permission or by the invitation of the owners of those premises.
General Part
SECTION FOUR
COERCIVE PROCEDURAL MEASURES
Chapter XVIII
APPLICATION OF OTHER COERCIVE PROCEDURAL MEASURES DURING CRIMINAL PROCEEDINGS
Article 178. Forcible appearance before the prosecuting authority
178.1. Forcible appearance before the prosecuting authority shall entail bringing a person by force to the prosecuting authority and forcibly guaranteeing his participation in investigative or other procedures.
178.2. This measure may be applied to a person participating in criminal proceedings and summoned by the prosecuting authority only in the following circumstances :
178.2.1. if he fails to attend in response to the compulsory summons of the prosecuting authority without good reason ;
178.2.2. if he evades receipt of the summons from the prosecuting authority ;
178.2.3. if he hides from the prosecuting authority ;
178.2.4. if he has no permanent address.
178.3. Children under 14, pregnant women, persons who are seriously ill and victims bringing a private prosecution may not be forcibly brought before the prosecuting authority.
178.4. Forcible appearance before the prosecuting authority shall be based on a reasoned decision by the prosecuting authority or a court decision at the request of the parties to criminal proceedings.
178.5. The decision to forcibly bring a person before the prosecuting authority shall be enforced by the preliminary prosecuting authority or by another authority legally responsible for this duty.
SPECIAL PART
SECTION SEVEN
PRE-TRIAL CONDUCT OF THE PROSECUTION
Chapter XXVIII
QUESTIONING AND CONFRONTATION
Article 226. Rules governing summons for questioning
226.1. Witnesses, victims, suspects, the accused and other persons shall be called to appear before the investigator by a summons served on them in person, or in their absence, transmitted via an adult member of their family, a neighbour, a representative of the relevant housing organisation or their place of work or study. Summons may be issued by telegram, telephone or fax.
226.2. The summons shall state who is called to appear, in which procedural capacity, and where and when (date and time). The summons shall indicate that if the person fails to attend, a warrant for him to be brought in by force shall be issued in accordance with Article 178 of this Code.
226.3. Minors shall as a rule be summoned via their legal representatives.
226.4. A suspect or accused who is detained on remand shall be summoned via the authority in charge of the remand facility where he is held.
Article 227. Questioning of witnesses
227.1. A witness may be questioned on any matter of significance to the criminal prosecution, including the identity of the suspect, the accused, the victim, and other witnesses. A witness’s lawyer or other representative shall be entitled to participate.
227.2. Witnesses shall be questioned at the place where the investigation is conducted and, where necessary, at their home.
227.3. Witnesses shall be questioned separately from other witnesses. Throughout the questioning the investigator shall take measures to prevent witnesses called in the same case from contacting each other.
227.4. Before questioning witnesses, the investigator shall determine their identity, inform them of the case in which they are called and of their duty to give evidence on all the circumstances of the case known to them and warn them of the criminal responsibility incurred for refusing to testify, evading questioning and intentionally giving false testimony. The witness shall be informed that he is not obliged to testify against himself or close relatives. The investigator shall then establish the witness’s relations with the suspect, accused and/or victim and begin the interview.
227.5. The interview shall begin with a proposal to the witness to relate all the circumstances connected with the criminal prosecution, following which he may be questioned.
227.6. The investigator shall be entitled to interview the witness using audio, video, film and other recording techniques.
Article 228. Questioning of under-age witnesses
228.1. If an under-age witness can provide information of significance to the case either verbally or in another form, he may be questioned notwithstanding his age.
228.2. If a witness is under 14 years old, or, at the investigator’s discretion, under 16 years old, the interview shall be held with the participation of his teacher or, where necessary, a doctor and the witness’s legal representative.
228.3. Before the start of the interview, these persons shall be informed of their right to participate in the interview, to make observations with the agreement of the investigator and to put questions ; they shall also be informed of their duties. The investigator may refuse to answer their questions, but shall note them in the record of the interview. All observations made by the witness and those participating in the interview shall be included in the record.
228.4. A witness who is under 16 years old shall merely be informed of his duty to tell the truth. However, he shall not be warned of the criminal responsibility incurred for refusal to testify, evading questioning and intentionally false testimony.
Article 229. Questioning of dumb, deaf or blind witnesses or witnesses who suffer from a serious illness
229.1. An interview with a dumb, deaf or blind witness shall be held with the participation of a person who understands his signs or who can communicate with him in sign language. This person’s participation in the interview shall be noted in the record.
229.2. Where a witness suffers from a mental or other serious illness, the interview shall be held with the permission and the participation of a doctor.
229.3. When a dumb, deaf or blind witness or a witness who suffers from a serious illness is questioned, his representative and legal representative shall be entitled to participate.
Article 230. Records of interviews with witnesses
230.1. A record of the interview shall be drawn up, indicating the following :
230.1.1. the date, time and place of the interview ;
230.1.2. the investigator‘s family name, first name, father’s name and title ;
230.1.3. the witness’s family name, first name and father’s name and year, month, day and place of birth ;
230.1.4. the witness’s nationality, education, workplace, occupation or status, address and place of registration ;
230.1.5. information about the witness’s relations with the suspect, the accused and the victim ;
230.1.6. a note that the witness has been informed of his rights, duties and responsibilities ;
230.1.7. a note about the circumstances of the interview, especially the use of audio, video, film or other recording equipment during questioning of the witness ;
230.1.8. the questions put to the witness and his answers to these questions as well as any statement made by the witness concerning the facts of the case.
230.2. The witness’s statements and answers to the questions put shall be recorded in the first person singular and as far as possible verbatim.
230.3. During the interview the witness shall give evidence in the language of the Azerbaijan Republic or in the language he knows. Where the witness does not know the official language or the language in which the preliminary investigation is conducted, an interpreter shall be summoned to participate in the interview. At the witness’s request, his statement shall be translated into the language he knows. The record shall be signed by the witness and the interpreter. The record shall be included in the case-file.
230.4. On request, a witness may be given permission to testify in writing, and an appropriate note shall be made in the record of the interview.
230.5. On completing the interview, the investigator shall show the witness the record. The witness shall be entitled to ask the investigator to make additions and amendments to the record of the interview.
230.6. The record of the interview shall be signed by the investigator and the witness at the end of the document and also, by the witness, on each page. If the interview is conducted with the assistance of an interpreter, the interpreter shall sign the record together with the witness, the interpreter signing first.
230.7. If the witness refuses to sign the record, the investigator shall inquire as to the reason for this refusal and endorse the record with his own signature. If the witness cannot sign the record because of illiteracy or physical disabilities, the investigator shall note these circumstances in the record and endorse the record with his own signature.
230.8. The record of the interview shall be included in the case-file. If audio, video, film or other recording techniques are used during the interview, the relevant documents, tapes or other information devices shall be attached to the record.
Article 231. Questioning of victims
An interview of a victim shall be conducted in accordance with the rules laid down in Articles 227-230 of this Code for the questioning of witnesses.
232.1. A suspect shall be interviewed immediately after being taken into custody or after pronouncement of the decision concerning any restrictive measure to be applied in his case.
232.2. A suspect who has been taken into custody or an accused who has been arrested shall be entitled to give evidence in the presence of his defence counsel. When questioning suspects, the investigator shall take steps in advance to guarantee the presence of counsel in the circumstances provided for in Article 92.3 of this Code. In the circumstances provided for in Article 92.12 of this Code, the participation of defence counsel in the interview of the suspect shall be compulsory.
232.3. The investigator shall be entitled to question a suspect using audio, video, film or other recording techniques.
232.4. Before questioning the suspect, the investigator shall inform him of the nature of the offence of which he is suspected as well as of his rights, including the right to refuse to testify and to the assistance of defence counsel.
232.5. The investigator shall begin the interview by suggesting to the suspect that he testify about the suspicions against him and any other circumstances which he deems to be of significance to the case.
Article 233. Questioning of an accused
233.1. The investigator shall interview the accused immediately after preferring charges against him.
233.2. Except in cases which do not admit delay, the interview with the accused may only be held during the daytime.
233.3. The interview with the accused shall be held on the premises where the investigation is being conducted or, if necessary, at the place where the accused is held.
233.4. The accused shall be questioned separately from other persons involved in the case. The investigator shall take measures to prevent the accused from speaking to other persons involved in the case.
233.5. Defence counsel shall be entitled to participate in the interview with the accused. The investigator shall take steps in advance to guarantee the participation of counsel in the circumstances provided for in Article 92.3 of this Code. In the circumstances provided for in Article 92.12 of this Code, the participation of defence counsel in the interview of the accused shall be obligatory.
233.6. Where the accused is a minor or is dumb, deaf, blind or suffers from a serious illness, the interview shall be conducted in accordance with Articles 228.2 and 229 of this Code.
233.7. The accused shall be questioned on the substance of the charge against him as well as on other matters of significance to the case.
233.8. The investigator shall be entitled to question the accused using audio, video, film or other recording techniques.
233.9. Before the start of the interview the investigator shall inform the accused of his rights to the assistance of defence counsel and to refuse to testify.
233.10. Before the interview the investigator shall ascertain whether or not the accused pleads guilty to the charge against him.
233.11. During the interview, the silence of the accused may not be construed as an admission of guilt. The investigator shall suggest to the accused that he testify about the charge against him and any other circumstances which he deems to be of significance to the case.
Article 234. Record of an interview with a suspect or accused
234.1. A record shall be drawn up of every interview with a suspect or accused and shall state the following :
234.1.1. the date, time and place of the interview :
234.1.2. the investigator‘s family name, first name, father’s name, and title ;
234.1.3. the family name, first name and father’s name of the suspect or the accused as well as his year, month, day and place of birth, his nationality, education, family status, workplace, occupation or status, address and place of registration ;
234.1.4. whether the suspect or the accused has been previously convicted or has received state honours, and other information characterising the suspect or the accused and of significance to the case ;
234.1.5. a note that the suspect or the accused has been informed of his rights and duties ;
234.1.6. the circumstances of the interview with the suspect or the accused, especially the use of audio, video, film or other recording techniques ;
234.1.7. the questions put to the suspect or the accused and his answers to these questions as well as any statement about the circumstances of the case made by the suspect or the accused.
234.2. Statements made by the suspect or the accused and his answers to the questions put shall be recorded in the first person singular and as far as possible verbatim.
234.3. The suspect or the accused shall be given the opportunity to make a statement in handwritten form and the investigator shall note this in the record. After the investigator has taken cognisance of the written statement by the suspect or the accused, he may put additional questions to him. These questions and the answers to them shall be included in the record.
234.4. On completing the interview, the investigator shall show the suspect or the accused the record. The suspect or the accused shall be entitled to request additions and amendments to the record. Their inclusion in the record shall be compulsory.
234.5. The record shall be signed by the suspect or the accused and the investigator. If the record drawn up covers several pages, each page shall be signed separately by the suspect or the accused.
234.6. If audio, video, film or other recording techniques are used during the interview, the relevant documents, tapes and other information devices shall be attached to the record.
SPECIAL PART
SECTION SEVEN
PRE-TRIAL CONDUCT OF THE PROSECUTION
Chapter XXIX
EXAMINATION OF PLACES AND OBJECTS, EXHUMATION AND BODY SEARCH
Article 236. Examination of places and objects
236.1. The investigator shall examine the scene of the offence, buildings, documents, objects and human and animal corpses, with the aim of uncovering traces of the offence and other potential material evidence and determining the circumstances of the offence and other facts of significance to the case.
236.2. On discovery of an offence, except in circumstances where examination of the scene of the offence cannot be delayed, the examination shall be held in the daytime.
236.3. Where the examination takes place after the commencement of criminal proceedings and there is a suspect or accused, the suspect, the accused and/or any co-suspect or accused may participate in it. The investigator shall take steps in advance to guarantee the participation of co-offenders in the examination. Examination of the scene of the offence shall take place in the presence of at least 2 (two) witnesses.
236.4. The investigator shall conduct the examination of places or objects without violating any citizen’s rights. Where necessary, he shall measure the object, make plans, sketches or drawings of it, and, if possible, make a photographic, video or film record.
236.5. During the examination, the investigator shall, independently or with the assistance of a specialist, take prints and impound documents or any other objects which may be significant as evidence in future.
236.6. After completing the examination, the investigator shall draw up a record giving the following information :
236.6.1. the time, date and place of the examination ;
236.6.2. the investigator’s family name, first name, father’s name and title :
236.6.3. the family names, first names and father’s names of those participating in the examination as well as the year, month, day and place of their birth, their nationality, education, workplace, occupation or status, address and place of registration ;
236.6.4. information about the mutual relations of any circumstantial witness with the suspect, the accused or the victim (only in the event of participation of circumstantial witnesses in the examination of the scene of the offence) ;
236.6.5. a note to the effect that their rights, duties and responsibilities have been explained to each of the circumstantial witnesses (only in the event of participation of circumstantial witnesses in the examination of the scene of the offence) ;
236.6.6. a note about the circumstances of the examination, especially the use of photography, video, film or other recording techniques ;
236.6.7. the sequence followed in the observation procedure and all the evidence revealed during the examination.
236.7. The record shall be signed by all the participants in the examination, who shall have the right to require that their notes be included in the record, and by the investigator. If the record comprises several pages, each page shall be signed by all the participants in the examination.
236.8. If, during the examination, photography, video or other recording techniques are used, the relevant photos, tapes or other information devices shall be attached to the record.
236.9. Examination of residential, service or industrial buildings and objects found there shall be conducted where there are grounds and circumstances provided for in Article 243.3 of this Code, in accordance with the requirements of Articles 177.2-177.6 of this Code.
SPECIAL PART
SECTION SEVEN
PRE-TRIAL CONDUCT OF THE PROSECUTION
Chapter XXX
IDENTIFICATION OF PERSONS AND OBJECTS
Article 239. Identification of a person
239.1. Where any person is to be presented for identification purposes to a witness, victim, suspect or accused, the investigator shall first question the person making the identification about the appearance and features of the person to be identified and the circumstances in which the former saw the latter and an appropriate record of the interview shall be drawn up.
239.2. The investigator shall take steps in advance to guarantee the presence of counsel for the suspect or accused at an identification parade concerning the latter.
239.3. On the investigator’s instructions or with his permission, photo, video, film and other recording techniques may be used during the identification parade.
239.4. If the person making the identification is a witness or the victim, he shall first be warned of the criminal responsibility incurred for refusing to testify, evading questioning or giving false testimony intentionally. He shall also be informed of his right not to testify against himself or his close relatives.
239.5. The person to be identified shall be presented to the identifying person together with at least 3 (three) other people of the same sex who do not differ greatly in their appearance and clothing from the person to be identified.
239.6. Before the start of the identification parade, the investigator shall ask the person to be identified to take position wherever he wishes in the row of persons on parade.
239.7. At the request of the identifying person, the identification process may be carried out in such a way that the person making the identification is not seen by those taking part in the identification parade.
239.8. If the identifying person is uncertain that he can recognise the person to be identified, the identification parade may not be conducted and any identification made shall not be considered valid. The same person shall not be asked again to identify the person concerned on the basis of the same features.
239.9. If necessary the identification procedure may be conducted using photographs of people who do not differ greatly from each other in their appearance and clothing.
SPECIAL PART
SECTION SEVEN
PRE-TRIAL CONDUCT OF THE PROSECUTION
Chapter XXX
IDENTIFICATION OF PERSONS AND OBJECTS
Article 240. Identification of objects
240.1. Where it is necessary to present any object for identification, the investigator shall first question the person who is to identify the object about its characteristics and the circumstances in which he saw it, and shall draw up a record of this interview.
240.2. Counsel for the suspect or the accused shall be entitled to participate in the identification of the object. If counsel for the defence, whom the investigator has informed in advance of the performance of this investigative procedure, expresses a wish to participate in the identification of the object, the investigator shall guarantee this right.
240.3. On the investigator’s instructions or with his permission, photography, video, film or other recording techniques may be used during the identification of the object.
240.4. If the identifying person is a witness or the victim, he shall first be warned of the criminal responsibility incurred for refusing to testify, evading questioning or giving false testimony intentionally. He shall also be informed of the right not to testify against himself or his close relatives.
240.5. The object to be identified shall be presented to the identifying person among other objects of the same kind. The identifying person shall be asked to indicate the object which he recognises and to state the reasons for his choice.
240.6. Identification of a corpse, parts thereof or objects of which it is impossible or difficult to find the equivalent shall be conducted on the basis of a single reproduction presented to the identifying person.
240.7. If the person identifying a corpse has seen the person concerned alive, the use of cosmetics shall be allowed on the corpse. When an object is being identified it shall be permissible to clean dirt, rust and other deposits from it.
Article 241. Record of the identification
241.1. After the identification the investigator shall draw up a record including the following :
241.1.1. the place, date and time of the identification ;
241.1.2. the investigator’s family name, first name, father’s name and title ;
241.1.3. the family names, first names and father’s names of those participating in the identification, the year, month, day and place of their birth, their nationality, education, workplace, occupation or status, address and place of registration ;
241.1.4. a note that persons participating in the identification have been informed of their rights, duties and responsibilities ;
241.1.5. a note about the circumstances of the identification, including use of photography, video, film and other recording techniques ;
241.1.6. the sequence followed in the observation procedure and all the evidence discovered, including a description of the objects presented for identification and their identifying features.
241.2. The identification record shall be signed by all the participants in the investigative procedure, who shall have the right to require the inclusion of their notes in it. If the record comprises several pages, the participants shall sign each page.
241.3. If, during the identification, photography, video, film or other recording techniques are used, the documents, photos, tapes or other information devices shall be attached to the record.
SPECIAL PART
SECTION SEVEN
PRE-TRIAL CONDUCT OF THE PROSECUTION
Chapter XXX
SEARCH AND SEIZURE
Article 242. Conduct of a search
242.1. Where the available evidence or material discovered in a search operation gives rise to a suspicion that a residential, service or industrial building or other place contains, or certain persons are in possession of, objects of potential significance to a case, the investigator may conduct a search.
242.2. A search may be conducted with the aim of finding persons or animals being sought or human or animal remains.
242.3. Objects and documents which may be of significance as evidence may be impounded by the investigator once it has been established on the basis of the evidence collected or the material discovered in a search operation where or in whose possession they are.
Article 243. Grounds for conducting a search and seizure
243.1. As a rule, searches and seizures shall be conducted by decision of a court. A court may decide to give permission for a search or seizure in response to a reasoned request from the investigator and submissions made by the prosecutor in charge of the procedural aspects of the investigation. The search or seizure shall be conducted in accordance with the requirements of Articles 177.2-177.6 of this Code.
243.2. The decision to authorise the search or seizure shall state the following :
243.2.1. the date, time and place of the decision ;
243.2.2. the family name, first name, father’s name and title of the person making the decision ;
243.2.3. the objective grounds for conducting the search or seizure ;
243.2.4. the family name, first name and father’s name of the person conducting the search or
seizure ;
243.2.5. the place where the search or seizure is to be carried out (nature of the building, address or location) ;
243.2.6. in the case of a decision authorising seizure, the objects and documents to be impounded.
243.3. In circumstances which admit no delay, the investigator may conduct a search or seizure without court permission only if there is precise information indicating that :
243.3.1. objects or documents concealed in a residential building constitute proof of the commission of an offence or of preparations for the commission of an offence against a person or the state ;
243.3.2. a person who has prepared or committed an offence against a person or the state or a person who has escaped from a remand facility or prison is hiding in a residential building ;
243.3.3. there is a human corpse (or parts of a corpse) in the building ;
243.3.4. there is a real danger to someone’s life or health in the building.
243.4. In the circumstances provided for in Article 243.3 of this Code, the investigator shall give a reasoned decision to conduct a search or seizure. The investigator’s decision shall be drawn up in accordance with the requirements of Article 243.2 of this Code and shall give due consideration to the need to conduct the search and seizure without court permission and the reasons why it cannot be delayed.
Article 244. Participants in a search or seizure
244.1. During a search or seizure the presence of at least 2 (two) circumstantial witnesses shall be obligatory.
244.2. Defence counsel for the suspect or accused shall be entitled to participate in the conduct of a search or seizure concerning them. If defence counsel, having been informed of the conduct of this investigative procedure by the investigator, expresses the wish to participate in the search and seizure, the investigator shall take steps to guarantee this right.
244.3. Where necessary, an interpreter or specialist may participate in the conduct of the search or seizure.
244.4. Steps shall be taken to guarantee the presence of the person concerning whom the search and seizure is being conducted, adult members of his family or those who represent his legal interests. If it is impossible to secure the participation of the above-mentioned people, a representative of the relevant housing organisation or local authority shall be asked to participate.
244.5. A search or seizure operation in an administrative department, institution, organisation or military unit shall be conducted in the presence of a representative of the entity concerned.
244.6. Persons concerned by the search or seizure and circumstantial witnesses, specialists, interpreters, representatives and defence counsel shall have the right to be present throughout the procedures conducted by the investigator and to make observations, which shall be included in the record.
Article 245. Rules governing searches and seizures
245.1. An investigator shall be entitled to enter a residential or other building on the basis of the court decision concerning the search or seizure.
245.2. Before conducting the search or seizure, the investigator shall acquaint the person concerned with the decision.
245.3. The investigator shall be entitled to conduct the search or seizure using photography, video, film or other recording techniques.
245.4. The investigator shall take measures to prevent the dissemination of information about the circumstances of the search or seizure, its results and any information concerning the private life of the person concerned.
245.5. The investigator may prohibit those present in the place where the search or seizure is conducted from leaving the premises or speaking to each other or with other persons before the end of the search or seizure operation.
245.6. On making a seizure, the investigator shall, after pronouncing the decision, propose that the objects or documents to be seized be surrendered voluntarily and, in the event of refusal, shall impound them by force.
245.7. On conducting a search, the investigator shall, after pronouncing the decision, propose that the objects or documents to be seized be given up voluntarily and that the wanted person’s hiding place be revealed. If the objects or documents are surrendered or the person’s hiding place is revealed voluntarily, this shall be noted in the record. Failure to surrender the objects or documents being searched for, in whole or in part, or to reveal the hiding place of the wanted person, shall result in the search being conducted.
245.8. During a search or seizure, all objects and documents shall be presented to the participants in the investigative procedure and their quantity, size, weight, material and other special features shall be specified as part of a detailed description. The objects and documents shall be packed and, if necessary, sealed by the investigator.
245.9. If, during the conduct of a search or seizure, the owners refuse to open closed buildings or store-rooms, the investigator shall have the right to open these.
245.10. During a search or seizure, the following shall be prohibited :
245.10.1. unnecessary damage to doors, locks and other items and creating a disturbance in the building ;
245.10.2. use of chemical or psychotropic substances, technical devices or equipment which may be harmful to human health and the environment.
Article 246. Body search and seizure
246.1. The investigator may, normally by court decision, impound objects and documents of potential significance as evidence which are on the clothing, affairs and body of the person concerning whom an investigative procedure is being conducted.
246.2. In the absence of a court decision, a body search may be conducted in the following circumstances :
246.2.1. if a suspect has been detained and he is in the custody of the police or another law enforcement agency ;
246.2.2. if the restrictive measure of arrest is applied to an accused person ;
246.2.3. if there are sufficient grounds to suspect that a person in a building where a search or seizure is being conducted is in possession of objects or documents of potential significance as evidence in the criminal prosecution.
246.3. A body search and seizure shall be conducted by the investigator in the presence of a specialist and at least 2 (two) circumstantial witnesses who are of the same sex as the person on whom the body search is being conducted.
Article 247. Record of the search or seizure
247.1. After completing a search or seizure the investigator shall draw up a record continuing the following information on the investigative procedures carried out :
247.1.1. the place, date and time of the search or seizure ;
247.1.2. the investigator’s family name, first name, father’s name and title ;
247.1.3. the family names, first names and father’s names of other persons participating in the search or seizure as well as the year, month, day and place of their birth, their nationality, education, workplace, occupation or status, address and place of registration ;
247.1.4. a note that the person in respect of whom the search and seizure was conducted was informed of his rights, duties and responsibilities ;
247.1.5. the family names, first names and father’s names of the circumstantial witnesses and the year, month, day and place of their birth, their nationality, education, workplace, occupation, address and place of registration ;
247.1.6. information concerning relations between each of the circumstantial witnesses and the suspect, accused and victim ;
247.1.7. a note that each of the circumstantial witnesses has been informed of his rights, duties and responsibilities ;
247.1.8. a note about the circumstances of the search or seizure, including use of photography, video, film or other recording techniques during the conduct of the procedure ;
247.1.9. the sequence followed and all the evidence discovered during the search and seizure, whether or not the objects and persons sought were surrendered voluntarily; any attempts made to hide the objects and documents discovered; and the quantity, size, weight, individual features and other characteristics of the objects seized, as part of a detailed description thereof.
247.2. The record of the search or seizure shall be signed by all the participants, who shall have the right to require the inclusion of their notes in it. If the record consists of several pages, each page shall be signed by the participants.
247.3. If, during the search or seizure, photography, video, film or other recording techniques are used, the relevant documents, photos, tapes or other information devices shall be attached to the record.
247.4. A copy of the record of the search and seizure shall be given to the person concerned by the investigative procedure or to an adult member of his family or his representative ; in their absence it shall be given to the representative of the housing organisation in whose area the investigative procedure was conducted.
247.5. If a search or seizure is conducted on the premises of an administration, institution, organisation or military unit, a copy of the record shall be given to its representative.
SPECIAL PART
SECTION SEVEN
PRE-TRIAL CONDUCT OF THE PROSECUTION
Chapter XXXII
ATTACHMENT OF PROPERTY
Article 248. Nature of the attachment of property
248.1. Attachment of property :
248.1.1. shall be carried out with the aim of guaranteeing a civil party’s claim and the confiscation of property in circumstances provided for under criminal law ;
248.1.2. shall consist in making an inventory of the property, which shall be left with the owner or holder, and where necessary prohibiting its use ;
248.1.3. where applied to bank deposits, shall prevent any further transactions on an account.
248.2. Property of the accused and property of other persons who may be held liable with regard to property may be attached, irrespective of what it is or in whose possession it is.
248.3. Attachment shall apply to the joint property of the accused and his or her spouse or to the accused’s share of property owned jointly with other persons. If there is sufficient evidence that the property was used in committing an offence or was acquired or enhanced by committing an offence, the whole property or the greater part thereof shall be attached.
248.4. Attachment may not apply to food which is essential to the owner or holder of the property and his family,, fuel of little market value, specialist books and equipment used in carrying on a professional activity, frequently used kitchen utensils and supplies or other essentials.
248.5. Except where part of the property of an administrative department, institution or organisation can be sealed off without damaging the economic activity of the entity concerned, their property may not be attached.
Article 249. Grounds for attachment of property
249.1. Property may be attached only if evidence collected in the criminal case provides sufficient grounds for doing so.
249.2. As a rule, property shall be attached on the basis of a court decision. The court shall give a decision to attach property in the following circumstances :
249.2.1. in response to a reasoned request by the investigator and appropriate submissions by the prosecutor in charge of the procedural aspects of the investigation ;
249.2.2. if persons applying to the court submit sufficient prima facie evidence to confirm fulfilment of the requirements of Article 249.1 of this Code and substantiate the need to attach property.
249.3. The court decision to attach the property shall state the following :
249.3.1. the date, time and place of the decision ;
249.3.2. the family name, first name, father’s name and title of the judge who gave the decision ;
249.3.3. the objective grounds and reasons for attachment of the property ;
249.3.4. the family name, first name and father’s name of the person whose property is attached ;
249.3.5. the actual property to be attached and the property required to guarantee the civil party’s claim ;
249.3.6. the period for which the property is attached.
249.4. Where there is a reasonable suspicion that the property to be attached will not be surrendered voluntarily, the attachment decision shall include authority to conduct a search.
249.5. In cases which admit of no delay, where there is precise information indicating that the person who committed the offence may destroy, damage, spoil, conceal or, to satisfy the civil claim, misappropriate property or unlawfully obtained items, the investigator may attach the property without a court decision if the requirements of Article 177.2-177.5 of this Code are met.
249.6. In the circumstances provided for in Article 249.5 of this Code, the investigator shall make a reasoned decision about the attachment of the property. The investigator’s decision shall be drawn up in accordance with Article 249.3 of this Code and shall substantiate the need to attach the property without delay and without a court decision.
Article 250. Valuation of the property to be attached
250.1. The value of the property to be attached shall be determined on the basis of its average market price in that area, without applying additional fines.
250.2. The value of property confiscated with a view to satisfying a claim lodged by a civil party or by the prosecutor in charge of the procedural aspects of the investigation shall not exceed the amount of the claim.
250.3. Where several persons are charged with an offence, all or part of the property of each of those arrested shall be attached; where this is not possible, all of the property of any one of them may be attached with a view to satisfying the civil party’s claim.
Article 251. Procedure governing attachment of property
251.1. A decision to attach property shall be executed by the investigator during the preliminary investigation proceedings and by the court bailiff during the trial proceedings.
251.2. The investigator or the court bailiff shall present the decision to attach the property to its owner or holder and request that the property be handed over. In the event of refusal to comply, the attachment of the property shall be enforced. If there is a suspicion that the owner of the property is concealing it, the investigator may conduct a search on the basis of an appropriate decision.
251.3. Counsel for the defence shall have the right to be present during the attachment of the accused’s property. If counsel, having been informed of the forthcoming conduct of this investigative procedure by the investigator, expresses the wish to attend the attachment of the property, the investigator or court bailiff shall take steps to guarantee this right.
251.4. An expert may be asked to establish the value of the property being attached.
251.5. With the permission of the investigator or the court bailiff, photography, video, film and other recording techniques may be used during attachment of the property.
251.6. The attachment of the property shall be conducted in accordance with the sequence established by the Code of Civil Procedure of the Azerbaijan Republic. An owner or holder of property who is present at the attachment of the property shall be entitled to determine which items are to be attached first, in order to arrive at the sum indicated in the decision.
251.7. Except for immovable property and large objects, attached property shall, as a rule, be removed, and shall be handled as follows :
251.7.1. precious metals and stones, pearls, money in local and foreign currency, securities (shares, bonds, cheques, treasury notes, loan certificates, lottery tickets etc) shall be given to the State Bank of the Azerbaijan Republic for holding ;
251.7.2. other objects removed shall, if possible, be packed, sealed and kept on the premises of the investigating authority or court as the case may be, or handed over for safe-keeping to a representative of the relevant state authority, who shall be warned of his statutory liability.
251.8. Property that is attached but not removed shall be sealed and given to its owner or holder, or adult members of his family, for safe-keeping, in exchange for a commitment not to misappropriate, damage or destroy it, and the person concerned shall be warned of the statutory liability incurred for doing so.
Article 252. Record of the attachment of property
252.1. The investigator shall draw up a record of the attachment of property, and the court bailiff a record of the inventory of the property, stating the following :
252.1.1. the date, time and place of attachment of the property ;
252.1.2. the family name, first name, father’s name and title of the investigator or the court bailiff ;
252.1.3. the family name, first name, father’s name and title of the expert ;
252.1.4. the family name, first name and father’s name of the person whose property is attached, the year, month, day and place of his birth, his workplace or title, address and place of registration ;
252.1.5. a note that the rights and duties of the person whose property is attached have been explained to him ;
252.1.6. a note about the circumstances of the attachment of property, especially the use of photography, video, film and other recording techniques during the process ;
252.1.7. a list of the attached property giving its designation, quantity, size, weight, age, other individual features and the value established by the expert ;
252.1.8. a note of what property was taken and to whom it was given for safe-keeping ;
252.1.9. information on any co-owner of the confiscated property.
252.2. The record of the attachment or inventory of the property shall be signed by all participants in the investigative procedure, and they shall have the right to require the inclusion of their observations in it. If the record consists of several pages, the participants shall sign each page separately.
252.3. If, during the attachment of the property, photography, video, film or other recording techniques are used, the relevant documents, photos, tapes or other information devices shall be attached to the record.
252.4. A signed copy of the record shall be given to the owner or holder of the property or, in the event of his absence to an adult member of his family, and to the representative of the state authority responsible for keeping the property. If the attached property was located on the premises of an administration, institution or organisation, a signed copy of the record shall be given to a representative of its head office.
Article 253. Complaints of mistaken attachment of property
253.0. Anyone who considers that property not belonging to the accused has been attached in error shall have the right to request the prosecuting authority to release the property from attachment. If the prosecuting authority refuses the request or fails to respond to the applicant’s request within 10 (ten) days of its receipt, the applicant shall be entitled to apply to the civil courts for the release of the property from attachment. The civil court shall decide the issue of the ownership of the property, and its decision concerning the release of the property from attachment shall be binding on the investigator, the prosecutor in charge of the procedural aspects of the investigation and the court examining the criminal case.
Article 254. Release of property by order of the criminal court
254.1. Property attached by court order may be released from attachment only on the basis of a court decision, except where the civil claim in the criminal case is withdrawn, the charges against the accused are altered or the criminal prosecution is discontinued.
254.2. The court or the prosecutor in charge of the procedural aspects of the investigation shall be empowered to release property which has been attached unlawfully by the prosecuting authority.
SPECIAL PART
SECTION SEVEN
PRE-TRIAL CONDUCT OF THE PROSECUTION
Chapter XXXIII
CONFISCATION OF POSTAL, TELEGRAPH AND OTHER MESSAGES ; INTERCEPTION OF TELEPHONE CONVERSATIONS AND OTHER COMMUNICATIONS
Article 255. Messages which can be confiscated
255.0. The postal, telegraph and other messages which can be confiscated shall include :
255.0.1. all types of letter ;
255.0.2. telegrams,
255.0.3. radiograms ;
255.0.4. wrappings ;
255.0.5. presents ;
255.0.6. parcels ;
255.0.7. money orders.
Article 256. Grounds for confiscating postal, telegraph and other messages
256.1. Confiscation of postal, telegraph and other messages shall, as a rule, be decided by a court. Where there are sufficient grounds to presume that postal, telegraph and other messages sent or received by the suspect or accused may be of evidential value in the criminal case, the relevant court shall take a decision to confiscate the postal, telegraph and other messages on the basis of a reasoned application by the investigator and the relevant submissions by the prosecutor in charge of the procedural aspects of the investigation. Confiscation of postal, telegraph and other messages shall be carried out in accordance with Article 177.2-177.5 of this Code.
256.2. The decision concerning the confiscation of postal, telegraph and other messages shall include the following :
256.2.1. the date, time and place of the decision ;
256.2.2. the family name, first name, father’s name and title of the person who made the decision ;
256.2.3. the objective grounds and reasons for confiscating the postal, telegraph and other messages;
256.2.4. the family name, first name, father’s name and exact address of the person(s) whose postal, telegraph and other messages have been confiscated ;
256.2.5. the exact type(s) and location of the postal, telegraph and other messages which have been confiscated ;
256.2.6. the name of the communications administration required to hold the postal, telegraph and other messages ;
256.2.7. the period for which the postal, telegraph and other messages have been confiscated.
256.3. The confiscated postal, telegraph and other messages shall be examined and removed on the basis of the decision concerning their confiscation.
256.4. Confiscation of postal, telegraph and other messages shall be discontinued in the following cases :
256.4.1. by decision of the court which ordered the confiscation of the postal, telegraph and other messages, or of a higher court, overturning the confiscation decision ;
256.4.2. on the expiry of the period for which the postal, telegraph and other messages were confiscated ;
256.4.3. on the basis of a decision by the investigator that it is unnecessary to continue the confiscation of the postal, telegraph and other messages, or on the basis of a decision by a court or the prosecutor in charge of the procedural aspects of the investigation ruling that the confiscation decision is unlawful and overturning it.
Article 257. Rules governing the confiscation, examination and removal of postal, telegraph and other messages
257.1. The investigator shall send the decision to confiscate the postal, telegraph or other messages to the head of the relevant communications administration.
257.2. The head of the communications administration shall immediately confirm receipt of the decision to the investigator and shall hold the postal, telegraph or other messages specified in the relevant decision.
257.3. The investigator shall take the following measures in connection with the confiscation of the postal, telegraph and other messages :
257.3.1. on receiving conformation from the head of the communications administration that the postal, telegraph and other messages specified in the decision are being held, he shall visit the communications administration and examine the messages together with its employees ;
257.3.2. on the basis of the decision to confiscate the postal, telegraph and other messages, he shall inform the head of the communications administration of the part of the decision authorising their removal, shall require him to sign it and shall remove the relevant messages.
257.4. In the event of the discovery of documents and other items that may be of significance to the case among the postal, telegraph and other messages, the investigator may remove the relevant message or merely make a copy of it. Where there is no information of significance to the case, the investigator shall give instructions to send the message examined to the appropriate address or to keep it for a specified period.
257.5. The investigator shall have the right to use photography, video, film or other recording techniques during the confiscation, examination and removal of postal, telegraph and other messages.
Article 258. Record of the examination and removal of postal, telegraph and other messages
258.1. A record of the examination and removal of the postal, telegraph and other messages shall be drawn up, including the following information :
258.1.1. the date, time and place of the examination and removal ;
258.1.2. the investigator’s family name, first name, father’s name and title ;
258.1.3. the family name, first name and father’s name of the person conducting the examination and removal of the postal, telegraph and other messages, the year, month, day and place of his birth, his workplace or title, address and place of registration ;
258.1.4. the family names, first names and father’s names of other persons participating in the examination or removal (the head of the communications administration and, if necessary, other employees of that administration), the year, month, day and place of their birth, their workplace or title, address and place of registration ;
258.1.5. a note on the circumstances of the examination and removal, on which messages were examined and removed, on the messages to be sent to the addressee and those to be held temporarily, on the copies made of postal, telegraph and other messages, and on the technical devices used ;
258.1.6. any evidence revealed during the examination and removal of messages, in the order of its discovery.
258.2. The record of the examination and removal of the postal, telegraph and other messages shall be signed by all the participants in the investigative procedure, who shall have the right to require the inclusion of their observations in it. Where the record consists of several pages, the participants in the investigative procedure shall sign each page separately.
258.3. If, during the confiscation, examination and removal of the postal, telegraph and other messages, photography, video, film or other recording techniques are used, the relevant documents, photos, tapes or other information devices shall be attached to the record.
Article 259. Interception of conversations held by telephone and other devices, of information sent by communication media and other technical means, and of other information
259.1. Interception of conversations held by telephone and other devices and of information sent by communication media and other technical means shall as a rule be carried out on the basis of a court decision. Where there are sufficient grounds to suppose that information of significance to the criminal case is included among information sent or received by the suspect or the accused, the court shall, on the basis of a reasoned request by the investigator and appropriate submissions by the prosecutor in charge of the procedural aspects of the investigation, authorise the interception of conversations held by telephone or other devices, information sent by communication media or other technical means, or other information. Interception of such conversations and information shall be carried out in accordance with Article 177.2-177.5 of this Code.
259.2. Interception of conversations held by telephone and other devices or of information sent by communication media or other technical means shall not continue for longer than 6 (six) months.
259.3. Interception of information which comprises personal, family, state, commercial or professional secrets, including information about financial transactions, the situation of bank accounts and the payment of taxes, may be carried out only on the basis of a court decision.
259.4. The decision authorising the interception of conversations held by telephone and other devices, of information sent by communication media or other technical means, or of other information shall state the following :
259.4.1. the date, time and place of the decision ;
259.4.2. the family name, first name, father’s name and title of the person who made the decision ;
259.4.3. the objective grounds and reasons for intercepting the relevant conversations and
information ;
259.4.4. the family name, first name, father’s name and exact address of the person(s) whose information or conversations are to be intercepted ;
259.4.5. the exact type(s) of conversation or information to be intercepted ;
259.4.6. the name of the administration assigned the duty of intercepting the conversations or information ;
259.4.7. the period for which interception of the conversations and information is to be carried out.
259.5. Conversations held by telephone and other devices, information sent by communication media or by other technical means and other information shall be intercepted by those authorised to do so, on the basis of the relevant decision. The intercepted conversations and information shall be transcribed on paper or copied on magnetic devices, confirmed by the signature of the person who intercepted them and given to the investigator. A summary record of the interception of the conversations and information related to the case shall be drawn up and added to the case file. Intercepted information not related to the case shall be immediately destroyed.
SPECIAL PART
SECTION SEVEN
PRE-TRIAL CONDUCT OF THE PROSECUTION
Chapter XXXIV
VERIFICATION OF TESTIMONY ON SITE AND CORROBORATIVE EXPERIMENTS
Article 260. Verification of testimony on site
260.1. Verification of testimony on site shall be carried out in order to clarify or establish the accuracy of the evidence given by a witness, victim, suspect or accused in connection with the offence committed, at the exact known location.
260.2. Counsel for the suspect or the accused shall be entitled to participate in the verification of evidence given by the suspect or the accused. If counsel for the suspect or the accused, having been informed of the performance of this investigative procedure in advance, expresses the wish to participate in the verification on site, the investigator shall take steps to guarantee this right.
260.3. Where necessary, at the investigator’s invitation, an interpreter, a specialist and the legal representative or representative of the participant in the criminal case whose testimony is being verified, and a teacher, doctor or other persons may also participate in the verification on site.
260.4. The investigator shall visit the site together with the person whose testimony is being verified, and shall propose that he point out (or describe) the circumstances or items about which he previously gave evidence or may now give evidence. The person being questioned shall show the way to the site, point out or describe the circumstances and items about which he previously gave evidence or may now give evidence, and answer the investigator’s questions.
260.5. On the investigator’s instructions or with his permission, photography, video, film and other recording techniques may be used during the verification.
260.6. If, during the verification on site, objects and documents which may be of evidential value to the case are revealed, they shall be impounded on the basis of a decision under Article 243.1 of this Code. The investigator shall as far as possible pack and seal the objects and documents removed and note their removal in the record of the verification on site.
Article 261. Record of the verification of testimony on site
261.1. After completing the verification of testimony on site the investigator shall draw up a record containing the following information :
261.1.1. the date, time and place of the verification of testimony on site ;
261.1.2. the investigator’s family name, first name, father’s name and title ;
261.1.3. the family names, first names and father’s names of others present (defence counsel, interpreters, specialists, legal representatives, representatives, teachers, doctors, etc) the year, month, day and place of their birth, their nationality, education, workplace, occupation or title, address and place of registration ;
261.1.4. the family name, first name and father’s name of the person whose testimony was verified on site, the year, month, day and place of his birth, his workplace or title, address and place of registration ;
261.1.5. a note that the rights and duties of the person whose testimony was verified on site were explained to him ;
261.1.6. a note about the circumstances of verification on site, including the use of photography, video, film or other recording techniques ;
261.1.7. the evidence given by the person concerned, if possible verbatim ;
261.1.8. all evidence discovered during the verification of testimony on site, in the order in which it was observed
261.1.9. a note about the removal of any objects or documents and their description.
261.2. The record of the verification of testimony on site shall be signed by all the participants in this investigative procedure, who shall have the right to require the inclusion of their observations in it. If the record consists of several pages, each page shall be signed separately by the participants.
261.3. If, during the verification of testimony on site, photography, video, film or other recording techniques are used, the relevant documents, photos, tapes or other information devices shall be attached to the record.
Article 262. Corroborative experiments
262.1. The investigator may conduct a corroborative experiment in order to check and clarify information which may be of importance to the prosecution and may be investigated by experimental and other means.
262.2. Counsel for the suspect or the accused may also participate in a corroborative experiment conducted with the participation of the suspect or the accused. If defence counsel, having been informed in advance about the conduct of this investigative procedure by the investigator, expresses the wish to participate in the conduct of the experiment, the investigator shall take steps to guarantee this right.
262.3. Witnesses, specialists, teachers, doctors or other persons may also participate in the corroborative experiment at the investigator’s invitation.
262.4. On the instructions or with the permission of the investigator, photography, video, film or other recording techniques may be used during the conduct of the corroborative experiment.
262.5. The conduct of a corroborative experiment shall be permissible where it does not endanger human life or health, jeopardise a person’s reputation or dignity or entail material damage.
Article 263. Record of the corroborative experiment
263.1. At the end of the corroborative experiment the investigator shall draw up a record containing the following :
263.1.1. the date, time and place of the corroborative experiment ;
263.1.2. the investigator’s family name, first name, father’s name and title ;
263.1.3. the family names, first names and father’s names of other participants (the suspect, the accused, defence counsel, witnesses, specialists, teachers, doctors, etc) the year, month, day and place of their birth, their workplace or title, address and place of registration ;
263.1.4. a note that the rights and duties of the person concerning whom the experiment is conducted have been explained to him ;
263.1.5. a note about the circumstances of the corroborative experiment, including which information was verified (clarified) and use of photography, video, film and other recording techniques ;
263.1.6. any evidence revealed by the corroborative experiment, in the order of its discovery (the circumstances and results of the experiment shall be given in detail).
263.2. The record of the corroborative experiment shall be signed by all the participants in the investigative procedure, who shall have the right to require the inclusion of their observations in it. If the record consists of several pages, each page shall be signed separately by the participants.
263.3. If, during the conduct of the corroborative experiment, photography, video, film or other recording techniques are used, the relevant documents, photographs, tapes or other information devices shall be attached to the record.
SPECIAL PART
SECTION SEVEN
PRE-TRIAL CONDUCT OF THE PROSECUTION
Chapter XXXV
EXPERT OPINIONS
Article 264. Principles governing expert opinions
264.1. An expert opinion shall be obtained in order to determine facts of significance to the prosecution which require specialist knowledge of science, technology or the arts or of investigative methods.
264.2. The fact that the preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation, specialist or other participants in the criminal proceedings possess specialist knowledge shall not exempt the prosecuting authorities from their obligation to obtain an expert opinion in appropriate cases. To determine the facts provided for in Article 140.0.1-140.0.4 of this Code, it shall be obligatory to seek the relevant expert opinion.
264.3. An expert opinion shall be obtained by decision of the investigator or, in the case of a private prosecution, on a written application by the defence. A decision to obtain an expert opinion shall be binding on the people to whom it relates.
264.4. The decision to obtain an expert opinion shall contain the following :
264.4.1. the date, time and place of the decision :
264.4.2. the investigator’s family name, first name, father’s name and title ;
264.4.3. the objective grounds and reasons for obtaining an expert opinion ;
264.4.4. the material evidence and other objects sent for expert examination, specifying the place, time and circumstances of their discovery and removal and, if the expert opinion is based on evidence in the case file, the information on which the expert is to base his conclusions ;
264.4.5. the questions put to the expert ;
264.4.6. the name of the expert body or the family name of the person from whom the expert opinion was commissioned.
264.5. In the event of a private prosecution, in order to determine facts which may serve the interests of the defence, defence counsel shall, on his own initiative, have the right to officially commission one or more experts or expert bodies to prepare an expert report, on condition that the work is paid for on the basis of a contract.
265.6. In the event of a private prosecution, where an expert report is commissioned on the initiative of the defence and at its expense, the expert shall be given a list of questions and the items to be examined.
264.7. In the event of a private prosecution, the opinions of experts who issued an expert report officially commissioned by the defence shall be included in the case file by the court and assessed together with the other evidence.
Article 265. Individual experts' reports and reports prepared by committees of experts
265.1. An expert report may be prepared by one or more persons appointed as experts who have specialist knowledge.
265.2. An individual expert's report shall be commissioned from a recognised expert or the head of an expert body that will appoint a recognised expert.
265.3. An expert report on a complex subject or a repeat expert report shall be prepared by a committee of experts with the same specialisation. At the request of the parties, their chosen experts may be included in the committee of experts. The experts shall consult among themselves and, on reaching a consensus, issue and sign their opinion. If there is a difference of opinion among the experts, each of them shall give his opinion on the question or questions giving rise to the difference.
265.4. Execution of a decision to commission an expert's report shall be binding on the head of an expert body. Where preparation of an expert report is entrusted to an expert body, the head of that body may set up a committee of experts to prepare the expert report.
Article 266. Complex expert reports
266.1. A complex expert report shall be obtained where facts of significance to the prosecution can be determined only by conducting several studies in different specialist fields of knowledge or different branches of the same field of knowledge.
266.2. Within the limits of their authority and on the basis of all the factual information established as part of the complex expert report, the experts shall state their conclusions as to the facts to be determined with the aid of the expert report.
266.3. An expert may not sign the part of the complex expert opinion that deals with matters beyond his authority.
266.4. If preparation of the complex expert report is entrusted to an expert body, responsibility for organising the relevant expert studies shall lie with the head of that body.
Article 267. Additional and repeat expert reports
267.1. If the expert fails to answer the questions put to him completely or if the investigator has additional questions on the items investigated, an additional expert report shall be commissioned from the same or another expert.
267.2. If the expert’s opinion is not sufficiently reasoned or gives rise to doubts, if the evidence on which it is based is considered unreliable or if the rules of procedure governing preparation of an expert report are violated, a repeat expert report shall be commissioned.
267.3. A repeat expert report shall be commissioned from another expert. Experts involved in preparing the previous expert report may participate in and give explanations concerning the preparation of the repeat expert report, but shall not participate in the investigation or in drawing up the opinion.
267.4. Reasons for disagreement with the results of the previous expert report shall be given in the decision to commission the repeat expert report. When the repeat expert report is commissioned, questions may be put to the expert concerning the scientific basis of the means of investigation used to prepare the previous report.
Article 268. Rights of the suspect or accused with regard to the commissioning and preparation of an expert report
268.1. Where an expert report is commissioned and drawn up by decision of the investigator, the suspect or the accused shall have the following rights :
268.1.1. to be acquainted with the investigator’s decision to appoint an expert, before the preparation of the expert report, and to be given an explanation of his related rights ;
268.1.2. to object to the expert ;
268.1.3. to request the appointment of an expert from a list of persons he provides ;
268.1.4. to commission an alternative expert report on his own initiative and at his expense and to request the inclusion of this opinion in the case file ;
268.1.5. to put additional questions to the expert appointed by the investigator ;
268.1.6. with the investigator’s permission, to participate in the preparation of the expert report, to ask the expert to explain the nature of the investigative methods used and the results obtained, and to give explanations to the expert ;
268.1.7. to acquaint himself with the expert's opinion within 10 (ten) days of its receipt by the investigator and to request the preparation of an additional or repeat expert report ;
268.1.8. to participate in the questioning of the expert conducted at his request.
268.2. The rights listed shall also apply to persons to whom compulsory medical measure are applied, where their mental condition so permits.
Article 269. Preparation of an expert report by an expert body
269.1. The investigator shall send the decision to commission an expert report, items to be examined and, where necessary, the case file to the head of the expert body for an opinion. The expert report shall be prepared by an employee of the expert body. If the decision does not state by whom the expert report is to be prepared, the head of the expert body shall designate one or more experts belonging to that body and inform the person who commissioned the expert report.
269.2. Where an expert report is prepared on the initiative and at the expense of the defence, the latter shall send a list of questions and the items for examination to the head of the expert body.
269.3. The head of the expert body shall fulfil the following duties :
269.3.1. explain to the expert his rights and duties under Article 97.4 and 97.6 of this Code ;
269.3.2. inform the expert of the criminal responsibility incurred for intentionally giving false opinions and make a note to this effect in the decision on the appointment of the expert, requiring the expert to sign the decision as confirmation of receipt of this warning ;
269.3.3. make arrangements for the preparation of the expert report ;
269.3.4. provide secure means for the safe-keeping of items to be examined ;
269.3.5. determine the time limit for submission of the expert report.
269.4. The head of the expert body shall not have the right to give advance instructions to the expert on the conduct of his investigation and the results expected of it.
Article 270. Preparation of an expert report not entrusted to an expert body
270.1. Where an expert report is prepared otherwise than by an expert body, the investigator shall proceed as follows after making the decision to commission an expert report :
270.1.1. summon the person commissioned to prepare the expert report ;
270.1.2. ascertain his identity and authority ;
270.1.3. determine the expert’s relations with the suspect or the accused, the victim and any other participants in the criminal proceedings and verify whether there are grounds for an objection to the expert ;
270.1.4. present the decision to commission the expert report to the expert ;
270.1.5. explain to the expert his rights and duties under Article 97.4 and 97.6 of this Code ;
270.1.6. inform the expert of the criminal responsibility incurred for intentionally giving false opinions;
270.1.7. note the requests and wishes of the expert ;
270.1.8. note in the record that the expert has been acquainted with the decision to commission an expert report and that the procedures provided for in Article 270.1.2-270.1.7 of this Code have been carried out ;
270.1.9. issue a reasoned decision about satisfaction or refusal of the expert's wishes.
270.2. Where it is necessary to examine the physical or mental condition of the suspect, the accused, the victim or a witness, or where their participation in the preparation of the expert report is considered necessary, the investigator shall arrange for them to be brought before the expert.
270.3.If the expert report is prepared on the initiative of the defence and at its expense, a contract shall be signed between the expert and the defence. The defence shall pay for the expert report and give a list of questions and the items for examination to the expert.
Article 271. The expert opinion
271.1. No later than one month after the receipt of the investigator’s decision to commission an expert report or the conclusion of the contract between the expert and the defence, the expert shall carry out the necessary investigations, draw up a written opinion, confirm it with his signature and send it immediately to the person who commissioned the expert report or the defence.
271.2. The following information shall be given in the expert opinion :
271.2.1. the date, time and place of preparation of the expert report ;
271.2.2. the expert’s family name, first name, father’s name, education, specialisation, the length of time for which he has been working on the specialist subject, his scientific titles and degrees and his position ;
271.2.3. a note confirming that the expert is aware of the criminal responsibility incurred for intentionally giving false opinions ;
271.2.4. the grounds for preparing the expert report :
271.2.5. a note about those who participated in the preparation of the expert report (family names, first names, father’s names and home addresses) ;
271.2.6. a note about the circumstances in which the expert report was prepared, including material from the case file used by the expert, material evidence, samples and other items examined, methods applied and their degree of reliability, reasoned answers to the questions put and the facts of significance to the criminal case determined on the expert’s initiative.
271.3. The material evidence, samples, other materials and photos, drawings or tables which confirm the expert’s conclusions shall be attached to the expert opinion.
271.4. Where it is found that the material presented for examination is insufficient or the expert does not have sufficient knowledge, the expert opinion shall include information on the reasons why the expert is unable to answer all or some of the questions put to him.
271.5. The expert opinion shall be signed by the persons who prepared the expert report (the validity of these signatures shall be confirmed by the head of the expert body).
Article 272. Questioning of the expert
272.1. If the expert opinion is not sufficiently clear, if there are gaps which do not necessitate additional investigation or if it is necessary to clarify the methods applied or the terms used by the expert, the investigator shall be entitled to question the expert.
272.2. The expert shall be summoned and questioned in accordance with Articles 226, 227 and 230 of this Code.
272.3. It shall not be permissible to question the expert before he submits his opinion.
SPECIAL PART
SECTION SEVEN
PRE-TRIAL CONDUCT OF THE PROSECUTION
Chapter XXII
SUSPENSION AND DISCONTINUATION OF CRIMINAL PROCEEDINGS
Article 278. Search for the accused
278.1. A warrant to search for the accused may be issued by the investigator concurrently with the conduct of the investigation or with a suspension of the criminal proceedings.
278.2. If the location of the accused is unknown, or if the accused has gone into hiding, the investigator shall issue a search warrant to the relevant preliminary investigating authority.
278.3. The search for the accused shall consist in taking steps to determine his whereabouts, apprehend him and place him at the disposal of the prosecuting authority.
278.4. The following measures may be applied to an accused who has been traced and detained in accordance with the provisions of this Code :
278.4.1. the court exercising judicial supervision may choose arrest or an alternative restrictive measure, or alter that decision ;
278.4.2. the investigator in charge of the case may choose a restrictive measure other than arrest or the alternatives to it, or alter that decision.
SPECIAL PART
SECTION ELEVEN
SPECIAL PROCEEDINGS
Chapter LVII
LEGAL ASSISTANCE IN CRIMINAL MATTERS
Article 488. Procedural and other acts relating to legal assistance in the territory of the Azerbaijan Republic
488.1. In the territory of the Azerbaijan Republic, procedural and other acts relating to legal assistance may be carried out only at the official request of the relevant authorities of foreign states with which the Azerbaijan Republic has an agreement on legal assistance in criminal matters.
488.2. In the territory of the Azerbaijan Republic, procedural and other acts relating to legal assistance shall be carried out on the basis of this Code, of other laws and of the international agreements to which the Azerbaijan Republic is a party. In such cases, if the provisions of the legislation of the Azerbaijan Republic conflict with those of the international agreements to which the Azerbaijan Republic is a party, the provisions of the international agreements shall apply.
Article 489. General provisions governing legal assistance in criminal matters in the territory of the Azerbaijan Republic
489.1. Procedural documents drawn up in accordance with the legislation of the party submitting a request for legal assistance in the territory of the Azerbaijan Republic shall be accepted by the prosecuting authorities of the Azerbaijan Republic if they are accompanied by an official application for legal assistance signed by an official of the competent authority of the foreign state and certified by that authority’s stamp .
489.2. The official language of the Azerbaijan Republic or, by mutual agreement with the competent authority of the foreign state, another language shall be used in the provision of legal assistance in the territory of the Azerbaijan Republic.
489.3. Unless otherwise provided for in an agreement signed by the requesting competent authority of the foreign state, all expenses connected with the provision of legal assistance by mutual agreement in the territory of the Azerbaijan Republic shall be paid by the prosecuting authorities of the Azerbaijan Republic .
Article 490. Content of official requests for legal assistance in the territory of the Azerbaijan Republic
490.1. Official requests for legal assistance in the territory of the Azerbaijan Republic shall indicate :
490.1.1. the name of the prosecuting authority to which the request is addressed ;
490.1.2. the name of the requesting competent authority of the foreign state ;
490.1.3. the title of the criminal case in respect of which legal assistance is requested and brief information about it ;
490.1.4. a description and classification of the act committed ;
490.1.5. the first and family names of the suspect, accused, victims and witnesses and, if possible, their address or whereabouts, nationality, occupation, place and date of birth ;
490.1.6. the substance of the request for legal assistance ;
490.1.7. any other information necessary for examination of the request.
490.2. Official requests for the extradition of a person who has committed an offence shall be submitted in accordance with Articles 488 and 489 of this Code.
Article 491. Rules governing the examination of official requests for legal assistance in the territory of the Azerbaijan Republic
491.1. Official requests for legal assistance in the territory of the Azerbaijan Republic shall be examined on the basis of the provisions of the legislation of the Azerbaijan Republic, under the procedure determined by the appropriate government authority of the Azerbaijan Republic.
491.2. When official requests for such assistance are examined and executed, the legislation of the foreign state may be applied at the request of the requesting body of that state if it does not conflict with the legislation of the Azerbaijan Republic.
491.3. If the prosecuting authority of the Azerbaijan Republic to which the request is addressed lacks the authority to examine and execute the official request for legal assistance, it shall forward it to the competent prosecuting authority of the Azerbaijan Republic and inform the competent authority of the foreign state accordingly.
491.4. If the execution of the official request for legal assistance requires the conduct of procedural and other acts which need the approval (decision) of a court, the prosecuting authorities of the Azerbaijan Republic shall apply to the appropriate court of the Azerbaijan Republic exercising judicial supervision in accordance with the provisions of this Code.
491.5. Officials of the competent requesting authority of the foreign state may participate in the execution of the request for legal assistance as determined by the appropriate government authority of the Azerbaijan Republic, under the provisions of the legislation of the Azerbaijan Republic.
491.6. If the assistance requested cannot be given, the appropriate prosecuting authority of the Azerbaijan Republic shall inform the competent authority of the foreign state which made the request of the circumstances preventing its execution.
Article 492. Refusal of requests for legal assistance
492.1. If the provision of legal assistance may conflict with the legislation of the Azerbaijan Republic or may be detrimental to the sovereignty and security of the Azerbaijan Republic, the provision of such assistance may be refused.
492.2. Any decision to refuse legal assistance shall be made by the head of the prosecuting authority of the Azerbaijan Republic to which the request is addressed or by a court of the Azerbaijan Republic. The requesting competent authority of the foreign state shall be informed of the refusal and of the reasons for it.
Article 493. Content of official requests for extradition
493.1. Official requests for extradition of a person shall indicate the following :
493.1.1. the name of the prosecuting authority of the Azerbaijan Republic to which the request is addressed ;
493.1.2. the name of the requesting competent authority of the foreign state ;
493.1.3. the title of the criminal case in respect of which legal assistance is requested and brief information about it ;
493.1.4. a description of the factual circumstances of the act and the text of the requesting state’s law describing the act as an offence ;
493.1.5. the family name, first name and father’s name of the person to be extradited, his nationality, address or whereabouts and, if possible, a description of his personal appearance and other information about his identity ;
493.1.6. the cost of the damage caused by the offence.
493.2. An official request for extradition in order to bring a criminal prosecution against the person concerned shall be accompanied by a certified copy of the warrant for his arrest.
493.3. An official request for extradition in order to enforce a judgment shall be accompanied by a certified copy of the final judgment and the text of the provision of criminal law applied to the convicted person. If the convicted person has served part of his sentence, information shall also be given on this point .
Article 494. Requests for additional documents relating to extradition
494.1. If any of the requisite information is not included in an official request for extradition, the prosecuting authority of the Azerbaijan Republic to which the request is addressed may request the provision of additional information within 1 (one) month. This period may be extended for 1 (one) further month at the request of the competent authority of the foreign state making the request.
494.2. If the competent authority of the foreign state requesting the extradition of a person in detention fails to provide the additional information during the prescribed period, the person shall be released by the prosecuting authority of the Azerbaijan Republic to which the request is addressed.
Article 495. Arrest of a person with a view to extradition
495.1. When a request for extradition and a copy of the arrest warrant are received from the competent authority of a foreign state, the prosecuting authority of the Azerbaijan Republic to which the request is addressed may if necessary, and in accordance with the provisions of this Code, take measures to have the person detained and arrested before the decision on extradition is taken.
495.2. In accordance with Article 495.1 of this Code, the arrested person shall have the right to apply to a court to confirm, amend or annul the restrictive measure applied to him.
495.3. Where necessary, the prosecuting authority of the Azerbaijan Republic to which the request is addressed shall also be empowered, in compliance with the provisions of this Code and at the request of the competent authority of the foreign state, to detain for the purposes of legal assistance a person in respect of whom no official request for extradition has been received. In this case the appropriate application :
495.3.1. shall have been received in advance by mail, telegram, telex or fax ;
495.3.2. shall refer to the arrest warrant or the final court judgment ;
495.3.3. shall confirm that the official request for extradition will be made within the next 48 hours.
495.4. The prosecuting authority of the Azerbaijan Republic shall immediately inform the requesting competent authority of the foreign state that the person has been detained or arrested on the basis of the official request for extradition, or that he has been detained for the purposes of legal assistance at the request of the foreign state, pending receipt of the official request for extradition.
495.5. A person arrested in accordance with Articles 495.1 and 495.3. of this Code shall have the right to complain to a court about the acts of the prosecuting authority.
Article 496. Settlement of extradition matters
496.1. A person who is in the territory of the Azerbaijan Republic shall be extradited by the prosecuting authority of the Azerbaijan Republic with a view to criminal prosecution or sentence enforcement, taking account of the need to meet the requirements of Article 496.2 - 496.7 of this Code, on the basis of an official request for his extradition from the competent authority of the foreign state concerned.
496.2. A person shall be extradited with a view to criminal prosecution in respect of acts which are punishable offences subject to a sentence of no less than 1 (one) year’s deprivation of liberty, or to a heavier sentence, under the legislation of the Azerbaijan Republic and of the requesting state.
496.3. A person shall be extradited with a view to sentence enforcement in respect of acts which are punishable offences subject, as regards the person concerned, to a sentence of no less than 6 (six) months’ deprivation of liberty, or to a heavier sentence under the legislation of the Azerbaijan Republic and of the requesting state.
496.4. The person shall not be extradited in the following cases :
496.4.1. if, at the time of receipt of the request for extradition, under the legislation of the Azerbaijan Republic, the criminal prosecution cannot be brought or the judgment be enforced because the time-limit for criminal prosecution has expired or on other legal grounds ;
496.4.2. if there is a final court decision discontinuing the proceedings against the person whose extradition is requested ;
496.4.3. if, under the legislation of the Azerbaijan Republic, the offence is privately prosecuted (on the basis of a complaint by the victim).
496.5. Extradition may be refused in the following cases :
496.5.1. if the person whose extradition is requested is a citizen of the Azerbaijan Republic or has been granted political asylum in the Azerbaijan Republic ;
496.5.2. if the offence connected with the request for extradition was committed on the territory of the Azerbaijan Republic ;
496.5.3. if the person whose extradition is requested is prosecuted for his political, racial or religious affiliations ;
496.5.4. if the person whose extradition is requested is prosecuted in peacetime for committing a war crime ;
496.5.5. if the state requesting extradition does not have an agreement with the Azerbaijan Republic on legal assistance in criminal matters, or if that state does not comply with the requirements of the agreement on legal assistance in criminal matters.
496.6. If the person whose extradition is requested is charged with or convicted of another offence in the territory of the Azerbaijan Republic, extradition may be deferred until the criminal prosecution is discontinued, the judgment is enforced or the person is released from punishment.
496.7. If an official request for a person’s extradition is received from several states, the prosecuting authority of the Azerbaijan Republic to which the requests are addressed shall decide independently which one to grant first.
Article 497. Release of a person arrested in connection with a request for his extradition
497.1. A person detained under Article 495.3 of this Code shall be released if, within 48 hours of his detention, the prosecuting authority of the Azerbaijan Republic does not receive an official request for his extradition.
497.2. If a person is arrested under Article 495.1 of this Code before the decision on his extradition is taken, he shall be immediately released if the prosecuting authority of the Azerbaijan Republic decides that it is impossible, or refuses, to extradite him.
Article 498. Limits on the prosecution of an extradited person
498.1. A person who has been extradited without the consent of the prosecuting authority of the Azerbaijan Republic which received the request may not be charged with or punished for an offence committed before he was extradited, but for which he was not extradited.
498.2. Without the consent of the prosecuting authority of the Azerbaijan Republic which received the request, a person may not be extradited to a third state.
498.3. If, within 1 (one) month of the end of the criminal proceedings or, in the event of a conviction, within 1 (one) month of completing his sentence or being released from punishment, the person who has been extradited fails to leave the territory of the requesting foreign state or returns there voluntarily, the consent of the prosecuting authority of the Azerbaijan Republic which received the request shall not be required. The period during which the extradited person was unable to leave the territory of the requesting foreign state through no fault of his own shall not be included in the above-mentioned period.
Article 499. Handing over of an extradited person
499.1. The prosecuting authority of the Azerbaijan Republic to which the request was addressed shall inform the requesting competent authority of the foreign state of the date and place of the extradition.
499.2. If the competent authority of the foreign state does not accept the person concerned within 15 (fifteen) days of the date arranged for his extradition, the person shall be released from detention.
Article 500. Renewed extradition
If a person who has been extradited evades criminal prosecution or punishment and returns to the territory of the Azerbaijan Republic, his renewed extradition to the requesting competent authority of the foreign state shall be effected without submission of the documents provided for in Article 493.2 and 493.3 of this Code being required.
Article 501. Transit
501.1. At the request of the competent authority of a foreign state, the prosecuting authority of the Azerbaijan Republic to which the request is addressed shall give permission for persons extradited by a third state to transit through its territory.
501.2. The application for permission for such transit shall be examined by the prosecuting authority of the Azerbaijan Republic according to the rules established for the examination of official requests for extradition.
501.3. The prosecuting authority of the Azerbaijan Republic to which the request is addressed shall give permission for the transit to be effected by the means that it considers most appropriate.
Article 502. Obligation to prosecute
502.1. The prosecuting authority of the Azerbaijan Republic shall, on the basis of an official request from the competent authority of a foreign state and in accordance with the legislation of the Azerbaijan Republic, bring a criminal prosecution against citizens of the Azerbaijan Republic suspected of committing an offence on the territory of the requesting state.
502.2. If the competent authority of a foreign state requests criminal prosecution of a person for an offence, and if the act committed by a person who is to be punished for that offence is the subject of a civil claim filed by the victims of the offence, the claim shall be examined during the proceedings if the victims claim compensation for the damage suffered .
Article 503. Content of an official request for criminal prosecution
503.1. An official request for criminal prosecution shall indicate the following :
503.1.1. the name of the prosecuting authority of the Azerbaijan Republic to which the request is addressed ;
503.1.2. the name of the requesting competent authority of the foreign state ;
503.1.3. a description of the act in respect of which prosecution is requested ;
503.1.4. as far as possible, the exact time and place of the commission of the offence ;
503.1.5. the text of the provisions of criminal law under which the act is considered an offence in the requesting foreign state and of any other legislation of the foreign state which is of importance for the proceedings ;
503.1.6. the family name and first name of the suspect, his nationality and other information about his identity ;
503.1.7. in criminal cases brought on the basis of an application by the victim, the victim’s application and any claims for compensation for damage ;
503.1.8. the cost of the damage caused by the offence.
503.2. All the documents and evidence at the disposal of the requesting competent authority of the foreign state shall be attached to the official request for criminal prosecution.
503.3. If the criminal case brought by the requesting competent authority of the foreign state is transferred, the prosecuting authority of the Azerbaijan Republic to which the request is addressed shall pursue the investigation of the case in accordance with the legislation of the Azerbaijan Republic. All the documents and evidence in the criminal case file shall be certified by the stamp of the competent authority of the foreign state.
Article 504. Notification of the results of criminal prosecution
The prosecuting authority of the Azerbaijan Republic to which the request is addressed shall inform the requesting competent authority of the foreign state of the final decision on the criminal case. At the request of the competent authority of the foreign state, a copy of the final decision on the case shall also be sent to it.
Article 505. Release of property
505.1. The prosecuting authority of the Azerbaijan Republic to which the request is addressed shall release the following items at the request of the competent authority of the foreign state :
505.1.1. items used during the commission of the offence which gave rise to the person’s extradition, including the instruments used for the offence, items received as a result of the offence or as payment for it, and items received by the offender in place of those obtained in this way ;
505.1.2. items which may be of evidential value in the criminal case.
505.2. The items referred to in Article 505.1 of this Code shall be released even if the extradition of the person is impossible as a result of death, escape or other circumstances.
505.3. If the items referred to in Article 505.1 of this Code are needed as evidence in the criminal case by the prosecuting authority of the Azerbaijan Republic to which the request is addressed, their release may be delayed until the end of the proceedings.
505.4. The right of third parties to the items released shall remain in force. After the end of the proceedings, these items shall be returned without compensation to the prosecuting authority of the Azerbaijan Republic which released them to the competent authority of the foreign state.
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
(a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
(i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
(a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(b)
(i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.
1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).
2. The request shall, as applicable, contain or be supported by the following:
(a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request;
(b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided;
(c) A concise statement of the essential facts underlying the request;
(d) The reasons for and details of any procedure or requirement to be followed;
(e) Such information as may be required under the law of the requested State in order to execute the request; and
(f) Any other information relevant in order for the assistance sought to be provided.
3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.