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.

Article 93
Other forms of cooperation
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.
7. (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.
8. (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.
9. (a) (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.
10. (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.