PRE-TRIAL CONDUCT OF THE PROSECUTION
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.
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:
(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