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Evolution Way and Development History of Criminal Procedure Law in Azerbaijan

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Evolution Way and Development History of Criminal Procedure Law in Azerbaijan 6/2018 КРИМІНАЛЬНИЙ ПРОЦЕС УДК 343.01 Asif oglu Gadirov Khanoglan, PhD in Juridical Sciences, Associate Professor of Academy of Public Administration EVOLUTION WAY AND DEVELOPMENT HISTORY OF CRIMINAL PROCEDURE LAW IN AZERBAIJAN The article discusses some of the issues of theoretical and practical problems сonstitutional legal inves- tigation of criminal proceedings in the Azerbaijan Republic is characterized by a number of methodological characteristics. It is noted that, from the legislative point of view, the definition of criminal proceedings can’ot be considered complete. For this reason, the author, referring to the theoretical and legal literature, it considers it necessary to bring clarity to various concepts in criminal proceedings. Key words: law, criminal procedure, constitutional law, theory, practice Regarding the research of the history of in its hands; individual rights were nearly on a criminal procedure law, M.Jafarguliyev de- zero level. Challenges for reforms have already notes that undergoing a unique rich historical increased. These challenges had become more development way, the criminal procedure law intensive after defeat of Russia by France, Eng- has become the basis of the national legislature land and Ottoman Empire in Crimean war. Czar regulating implementation of the justice court Alexander II preferred to carry out reforms by at present time. peaceful and compromise way, rather than a vi- Economic and political liberalism typical for olent and revolution way. the XIX century was reflected in codification In 1864 czar Alexander II adopted a new work and firstly it put forward determination of project called “Great Reforms” and stimulat- the general framework of the legal development ing acceleration of development of the empire. and later, minimum state intervention to a par- Within framework of this project economic, ticular law sphere. According to the opinion of legal and political reforms began to be imple- the lawyers of the XIX century, the codes had mented. Earlier, different layers of the society, exactly to determine the borders of the permit- i.e. the clergy, nobles, peasants were under the ted and prohibited deeds (1). guidance of the official bureaucracy of the em- The codification works begun in the pire. But at the result of the implemented re- XIX century in Europe influenced on Russia forms different layers were united under a single also. Codification of the valid law, arrangement system (5). in a chronological order of the law collected While carrying out a court reform, there over a long period of time was the requirement was given an order to give more attention to the of that time and objective necessity. civil and criminal procedure law, as well as to Codification of the law in Russia beginning the civil and criminal law spheres. This reform from the Legislation Assembly of 1649 until the was very important for the Russian society. end of the XVIII century led to collection of A number of new institutions were established, a great number of legal materials and it had a others were restored. negative impact on development of legislation. The reform of 1864 was attributed not only Among the legal acts collected for a long time to the territory of Russian Federation, but also there were a number of acts contradicting with to Poland, Finland, Ukraine, Belarus, Cauca- each other. Neither official, nor non-official dec- sian countries, including Azerbaijan and Baltic laration of the collection of laws has been car- countries which are independent countries at ried out. Many laws had not been published at present time. Alongside with Russia, the impact all and were spread just by the way of copying. of France, Germany, Austria and Italy is evident Therefore, it had become a necessity to codify in the roots of the adopted codex. Therefore, this the law. Besides it, social and economic condi- historical reform is accepted as a continuation of tion of that period also demanded it. Capitalist European heritage. The character of the reform relations developing at that period in Russia was so strong that continued its impact on Po- also put forward a necessity to revise and up- land even after 22 years- until 1939. The adopted date the legislation. codex maintained its force in USSR period also; In the middle of the XIX century Russian just the names of some parts were changed. Empire still maintained the medieval feudal so- The project committee for implementation ciety. The state concentrated the main power of judicial reforms was established yet ten years 308 ¤Asif oglu Gadirov Khanoglan, 2018 6/2018 КРИМІНАЛЬНИЙ ПРОЦЕС earlier. At the begging of 1850s when this com- principles: oral juridical execution in spite of mittee began to function well-known Russian written execution, lawyers were included to it. The first result of The dispute process was carried out on the the work was adopted on September, 29, 1862 following principles: oral legal proceedings in- by Czar Alexander II and was published under stead of written proceedings, publicity instead the name “General provisions of juridical re- of privacy, adversarial instead of inquisition (7). forms”. There were 446 proposals put forward Unlike the inquisition, the court offered the by the judges and attorneys. But in the end, czar parties to be represented in court freely and ac- signed the final decision on November, 20, 1864 tively. The role of the judge in collection of evi- and 4 regulations were adopted. They were dences was passive. The judge would only make the followings: Regulations of Juridical Insti- a final decision on the basis of the collected evi- tutions, Criminal Procedure Code, Civil Pro- dences at the end. cedure Code and Criminal Code. In these acts In this case, the judge ensured an accurate the famous Russian state figure Michail Speran- implementation of the process of justice and al- sky’s influence was evident (6). lowed competition between the parties to reach New Russian Juridical system was estab- a conclusion. The party providing with more lished on the following principles: independ- sufficient evidences and proving his innocence ence of courts, adversarial principle, equality of within the framework of the legislation at the everyone before the law, the jury for judgment end was declared innocent by a court decision. on more serious crimes. The typical characteristics of the judicial re- The negative results of the reform were form of 1864were the separation of the judicial seemed from two aspects. Firstly, the reform power from the executive and legislative power, was implemented only in main cities of the independence of judges, and transparency of the country. The peasants, who made the majority court proceedings. of the country, had just a little effect of it. 80% For the first time the legal institution was of the population was peasants. But this reform established, the judicial system took its place referred only to 20% urban population. Second- as an independent system in the management ly, the code did not have an effective practice. of the empire. It also reflected equality of Because, this code which had been systema- everyone before the law. In jury trial the jury tized upon the practice of European countries, consisting of 12 jurors was confirmed to give did not match the Russian society. Though it a verdict on guiltiness or innocence of the ac- was successful in most of European countries, cused persons. The processes as overall con- in Russia it failed. Many Russian and foreign duct of the case, public hearings, provisions scholars consider that the codes adopted in Eu- about qualitative legal assistance to the ac- rope at that period were not working in Russia cused persons, research of the case on favorable appropriately. terms and acceptance of applications appeared. Despite all the negative aspects, judicial As these reforms began to be applied in prac- reform in Russia, guided by the principles of tice, there was a sharp increase in release of openness and contention could be considered many innocent persons (5). progressive. This reform has set a beginning of We have noted above that this Code was a newer Russian juridical history which lasts up meant as the main legislation act not only in to present days. tsarist Russia, but also in other countries in its Different authors denoted different structure and as well as, in countries under its thoughts about the reform of 1864 in their ar- impact. One of these countries within the Em- ticles. An article in the Russian journal “Law” pire was the Kingdom of Poland. published by the Ural State Law Academy lo- In January, 1863, after the revolution that cated in Yekaterinburg in regard to the 150th took place in Poland, the country's separation year’s anniversary of conduction of the reform from Russia from legal and political point of can be reminded. The article says that the jurid- view became impossible. Therefore, the reform ical reform of 1864 set foundation of the transi- conducted in 1864 was attributed to Poland, tion from inquisition court execution to adver- too. So a jury trial was canceled here, selection sarial proceedings. of judges was replaced with appointment of The transition to adversarial proceedings judges, unchangeability of judges was strictly played a great role in determination of the truth. limited. The aim of conduction of the reform Even this principle found its reflection in the in Poland was not only unification of the judi- provisions adopted in USSR period. Though cial system of the country to Russia, but also it in some courts objective processes lost their was an evident example of Russification policy. adversarial character during implementation, The Russian language was considered an official yet never came back to an inquisition form. The language in the courts and the judges were ap- adversarial process was carried out on following pointed by Russian lawyers (8).
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