COERCIVE PROCEDURAL MEASURES
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 ;
177.4. 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
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.
PRE-TRIAL CONDUCT OF THE PROSECUTION
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.
PRE-TRIAL CONDUCT OF THE PROSECUTION
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.
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:
(c) The questioning of any person being investigated or prosecuted;