No fairness of punishment is possible in terms of corrupt police

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- Samed bey, following the murder of Narmin many users of social networks demand to reinstate the death penalty. An appropriate petition was prepared. What is the reason for aspirations to reinstate the death penalty?  Why are people so aggressive?  

- It should be remembered that emotional tensions caused by the murder of Narmin and demands to reinstate the death penalty are not typical for the Azerbaijani society: it is typical for all societies as manifestation of identical reaction. People are horrified by crimes of this sort, so they insist that a murderer or murderers be punished likewise. All things considered, the murder caused a serious response in society and such an aggressiveness of the public opinion is fully justified.  Put it another way, this is typical not only for Azerbaijan.

- How far is the reinstitution of the death penalty in keeping with the law? Is it possible in Azerbaijan?  

- From a legal viewpoint, no death penalty reinstitution is possible in Azerbaijan in peacetime. Thus, Azerbaijan joined the Protocol №6 of the European Human Rights Convention and ratified it. The Protocal says that the death penalty cannot be applied and has to be abolished in peacetime. Besides, the Azerbaijani state also joined the Second Optional Protocol to the International Covenant on Civil and Political Rights aimed to the abolition of the death penalty. It ought to be noted that the Protocol provides for the abolition of the death penalty. However, the Azerbaijani state advanced stipulated conditions regarding the Protocol №2 on wartime.

Under these stipulated conditions, the death penalty may be applied after pronouncement of sentence in wartime concerning persons committing extremely serious crimes. Besides, Azerbaijan did not ratify the Additional Protocol №13 of the European Human Rights Convention specifying the abolition of the death penalty in all cases, including the wartime. 

It is obvious that the death penalty cannot anyway be applied in Azerbaijan in peacetime even in case of crime against personality, including the murder case. If Azerbaijan does not pull out of the said Protocols, serving of the death penalty is admissible in wartime only for enormous offences. At present, it is not possible.

It has to be kept in mind that the Narmin’s murder is an offence against person in peacetime, and hence, no reinstitution of the death penalty for offences of this type is possible. Even if Azerbaijan denies its international legal obligations and reinstates the death penalty, this does not apply to a murderer or murderers of Narmin, for the criminal legislation of Azerbaijan has no retroactive effect for aggravating circumstances.

- There are scores of facts where investigative actions and court procedures are performed incorrectly. Is it correct to demand administering punishments of this kind in countries like Azerbaijan? Let’s assume that the death penalty has been reinstated in our country, wouldn’t it look suspicious whether persons sentenced to the death penalty are guilty in reality?

- Yes, the present situation around judicial system and investigatory actions in Azerbaijan is deplorable. One must bear in mind that the CE Anti-Torture Committee revealed that tortures and maltreatment in Azerbaijan are endemic. A greater part of tortures and maltreatment fall on suspects for getting wanted evidences promptly accepted by the court. The court takes into no account the accused’s evidence on tortures he was subjected. It is obvious that punishments like death penalties will be abused in Azerbaijan as a country with corrupt investigatory and judicial system.

However, that’s not the end of it. One must note that the reinstitution of the death penalty is impossible even despite the possibility of retroactive effect of some punishments but the death penalty. Account has to be taken of the fact that formal truth, not objective is determined through the use of the law. In other words, the truth as set forth in law is feasible through the use of specific procedural standards.  From this point of view, the truth as set forth in law may be disagreed with reality, and in all cases this is typical for legal terrain. In other words, this feature is an immanent property of the law.  In other words, the law, including the criminal-procedural one, always establishes the issue in a restricted manner, and this practice is inevitable for any cases (it may be questionable even in case of guilt recognition, for it is a specific issue to establish if the recognition has been made under pressure or not).

From this standpoint, the law either in Azerbaijan or Norway sets forth a restricted truth (formal), and law scope is restricted as well. Hence, the punishment having no retroactive effect cannot be applied at any rate because the truth is restricted. The point is that the very concept of truth in the law is formal, so it tends to change promptly if its reverse is unclosed.  When administering punishments with relatively retroactive effect,  the possibility of changing the situation is high; however, in case of administering punishments with total lack of retroactive effect, this possibility is out. 

Having regard to the fact that the death penalty is irreversible punishment, its application must be excluded under the law. For reasons quoted above, many developed countries of the West are seeking to abolish the death penalty.

- Of interest is the fact that among petition signers there were lawyers, civil society members, well-known persons. This gives grounds to claim that people are discontent with the punishment and treat the matter more emotionally.  As a whole, citizens are dissatisfied with court decisions on cases of this sort, for instance, the case of Elina Hajiyeva. Wouldn’t’ it all lead to more serious tendencies?  

- It is undoubtful that there is no justice in today’s Azerbaijan and it is very difficult to gain justice through the use of judicial system. An eloquent testimony to the above is the case of Elina Hajiyeva. However, all this notwithstanding, there are no grounds to reinstate the death penalty. As I noted above, citizens are utterly emotional in matters of this sort, so it is not astonishing that they put forward death penalty demands. The situation is understandable in respect of ordinary people.  Нowever, advancement  of demands and unreasonable judgements made by legal experts, well-known persons, intellectuals and civil society members under the effect of their emotions is illustrative of their degradive thinking. In fact, they should have placated anger of these citizens but failed to. As a m,atter of fact, they gave hostage to their own emotions in contrast with their own stand on the issue. It is a disgrace particularly for legal experts and civil society members. They are, at least, familiar with present state of legal system of Azerbaijan and realize grave consequences of death penalty serving.

However, they miss consequences of the death penalty reinstitution.

  In light of this, we can infer that legal experts and representatives of civil society demanding the death penalty as petition signers are those acting on the basis of abortive understanding of the matter and are not worthy of positions they lay claims to.

- How are criminals of this sort punished in the western countries with their respect for human rights? Is our legislation in keeping with laws of the mentiioned countries?  

- In most western countriers the criminals of this sort are sentenced long or life imprisonment (except for some US states where criminals are punished with death). At present, Azerbaijan has joined international legal agreements by undertaking to administer the same punishments.

- What do you suggest as lawyer? What needs to be done for normal investigation of cases like violence against children, passing of fair verdicts? What is to be done?

- In my view, the legislation in effect in Azerbaijan provides for solid legal footing to investigate and punish for crimes against children. I believe that prevention of crimes of this sort is a matter of practical importance. It is well-known that the Azerbaijani police system is plagued by corruption. It is engaged in everything but direct duties. If the corruption is removed and police bears direct responsibility for its obligations, a sound foundation will be created to investigate, eliminate and punish those guilty of crime. However, it is still impossible.