SPECIAL PART

SECTION TEN
PROCEEDINGS CONCERNING CERTAIN CATEGORIES OF PERSONS

Chapter LI
PROCEEDINGS CONCERNING PERSONS HOLDING PRIVILEGES AND IMMUNITIES UNDER INTERNATIONAL TREATIES

Article 436. Jurisdiction of the Azerbaijan Republic with regard to persons holding diplomatic immunity

Subject to the clearly expressed agreement of the relevant foreign state or international organisation, persons holding diplomatic immunity may come under the jurisdiction of the Azerbaijan Republic.

Article 437. Persons enjoying diplomatic immunity

437.0. The following persons shall enjoy diplomatic immunity :

437.0.1. heads of the diplomatic representations of foreign countries, members of their diplomatic missions and their family members, provided that they live with them and are not citizens of the Azerbaijan Republic ;
437.0.2. under reciprocal bilateral agreements between states, employees of the administrative and technical missions of diplomatic representations and their family members who live with them, provided that the employees and their family members are not citizens of the Azerbaijan Republic and do not live permanently in the Azerbaijan Republic ;
437.0.3. under reciprocal bilateral agreements between states, employees of the service missions of diplomatic representations who are not citizens of the Azerbaijan Republic or do not live permanently in the Azerbaijan Republic ;
437.0.4. diplomatic couriers ;
437.0.5. heads of consulates and other consulate officials ;
437.0.6. representatives of foreign countries, members of delegations representing foreign parliaments and governments and, under reciprocal bilateral agreements between countries, members of delegations representing foreign countries who come to the country to participate in international negotiations, conferences and discussions or with other official instructions, or who travel through the country’s territory for those purposes, and the family members accompanying those persons, provided that they are not citizens of the Azerbaijan Republic ;
437.0.7. in accordance with international treaties and generally accepted international custom, the heads, members and missions of foreign countries’ delegations to international organisations, and the officials of those organisations on the territory of the Azerbaijan Republic ;
437.0.8. heads of the diplomatic representations of foreign countries in third countries, members of their diplomatic missions and family members accompanying them or travelling separately to join them or return to their own countries, where such persons travel through the territory of the Azerbaijan Republic.

Article 438. Personal immunity

438.1. The persons referred to in Article 437.0.1 – 437.0.4 and 437.0.6 – 437.0.8 of this Code shall have the right to personal immunity. Except where this is necessary for the enforcement of a final court judgment concerning them, these persons may not be detained or arrested.

438.2. Heads of consulates and other consulate officials may be detained or arrested only if they are prosecuted for a serious offence or in order to enforce a final court judgment concerning them.

438.3. The investigating authority, prosecutor in charge of the procedural aspects of the investigation or court that detains or arrests persons referred to in Articles 438.1 and 438.2 of this Code shall immediately inform the relevant government authority of the Azerbaijan Republic of the fact.

Article 439. Immunity with regard to criminal jurisdiction

439.1. Persons listed in Articles 437.0.1, 437.0.2, 437.0.4 and 437.0.6-439.0.8 of this Code shall hold immunity with regard to criminal jurisdiction in the Azerbaijan Republic. The charging of such a person as a suspect or accused shall be decided through diplomatic channels.

439.2. Employees of the service mission of diplomatic representations, heads of consulates and other consulate officials who are not citizens of the Azerbaijan Republic or do not live permanently in the Azerbaijan Republic shall come under the criminal jurisdiction of the Azerbaijan Republic only in respect of offences committed in the performance of their duties.

Article 440. Immunity from giving evidence

440.1. Persons listed in Articles 437.0.1-437.0.4 and 437.0.6-437.0.8 of this Code shall not be obliged to testify as witnesses or victims. If they agree to testify, they may give evidence in writing without appearing before the investigator, the prosecutor in charge of the procedural aspects of the investigation or the court.

440.2. If such persons give statements as victims or witnesses during the investigation, but do not come to the court hearing, the court may read out their statements.

440.3. Heads of consulates and other consulate officials may not refuse to testify as witnesses or victims except in matters connected with the performance of their duties. If consulate officials refuse to give evidence as witnesses, coercive procedural measures may not be applied to them.

440.4. If the consent provided for in Article 440.1 of this Code is received, the summons addressed to such persons shall not threaten them with coercive procedural measures if they do not appear before the prosecuting authority.

440.5. Persons holding diplomatic immunity shall not be obliged to give correspondence and other documents relating to the performance of their duties to the investigating authority, the prosecutor in charge of the procedural aspects of the investigation or the court.

Article 441. Inviolability of premises and documents

441.1. Premises accommodating diplomatic representations, the headquarters of the head of a diplomatic representation, the residences of members of diplomatic missions and their property shall be inviolable. Entry to these premises, search, seizure, arrest and attachment of property may be conducted only with the consent of the head of the diplomatic representation or his deputy.

441.2. Under reciprocal bilateral agreements between states, the rights provided for in Article 441.1 of this Code shall also extend to the residences of the employees of the administrative and technical missions of diplomatic representations and their family members who are not citizens of the Azerbaijan Republic or do not live permanently in the Azerbaijan Republic.

441.3. Premises accommodating consulates and the headquarters of the heads of consulates shall be inviolable. Entry to these premises, search, seizure and arrest may be conducted only with the consent or at the request of the head of the consulate or diplomatic representation.

441.4. The archives, documents and official correspondence of diplomatic representations and consulates shall be inviolable. Diplomatic mail may not be opened or delayed.

441.5. Consent to entry to the premises of diplomatic representations and consulates referred to in Articles 441.1, 441.2 and 441.3 of this Code, and to search, seizure and arrest on those premises shall be sought by the investigating authority or the prosecutor’s office via the appropriate government authority of the Azerbaijan Republic.

441.6. Any search, seizure or arrest on the above-mentioned premises shall be conducted with the participation of the prosecutor in charge of the procedural aspects of the investigation and a representative of the relevant government authority of the Azerbaijan Republic.

Article 98
Cooperation with respect to waiver of immunity and consent to surrender
1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.