In Absentia Proceedings in Azerbaijan: What Determines the Effectiveness of This Institution

Analysis

In absentia proceedings involve pre-trial and judicial proceedings without the presence of the accused. Fair trial in criminal proceedings is based on the adversarial principle under domestic and international law. Article 127 of the Constitution of Azerbaijan recognizes this principle as the foundation for judicial proceedings. Although the absence of the accused in court is not a direct violation of the adversarial principle, detailed regulation is required.

“Tribunat” has investigated the issue of in absentia proceedings in criminal prosecution in domestic legislation.

The procedure of in absentia proceedings was added to the domestic legislation in 2023. In absentia proceedings for criminal prosecution are regulated by Chapter LIV-II of the Code of Criminal Procedure (CCP). The Code stipulates that in absentia proceedings are conducted with the following conditions:

1. In absentia proceedings may be conducted within the articles of the Criminal Code specified in Article 467-13.1 of the CCP and, in addition to these articles, on a set of crimes within the same criminal file;
2. Proceedings in absentia may be conducted if it is infeasible to ensure the participation of the accused in the criminal proceedings due to his conceal from the investigation or court outside the territory of the Republic of Azerbaijan or his deliberate refusal to appear at the summons;
3. A decision to open proceedings in absentia may be initiated by the court on the basis of a petition of the investigator and a presentation of the prosecutor conducting the procedural management of the preliminary investigation, approved by the superior prosecutor;
4. A decision to open proceedings in absentia may be adopted only after 3 months have passed since the search for the accused was declared.

It is difficult to form an objective opinion on the prevalence of in absentia proceedings. Only last year, in May 2024, the State Statistics Committee decided to include statistics on in absentia proceedings in the information published on investigative work. The classification of these data includes indicators such as how many cases were opened in absentia, how many were terminated, how many were petitioned for, how many were submitted by the prosecutor's office, how many were granted by the court, and the like, following from the opening to the conclusion of in absentia proceedings.

It is conceivable to observe cases of initiating proceedings in absentia in the media, mainly in relation to individuals in opposition towards the current government and bloggers-critics.

While in absentia proceedings, the body conducting the criminal prosecution sends the summons through the diplomatic mission, consulate or the relevant competent body of that country in accordance with Article 54-1.6 of the CCP, in the manner of providing legal assistance in criminal cases. If unsuccessful, the body takes measures to arrest and extradite the person in order to announce the charges. If also unsuccessful, the information contained in the summons is broadcasted on public television and radio, provided that the presumption of innocence is not violated, and is published on the official website. The general public became aware of this procedure when bloggers-critics living abroad were summoned for an investigation.

Given the varieties in legal systems and approaches, the conventional principle is that Governments have a wide discretion to include in their legislation proceedings in absentia (p. 4). Therefore, the regulation of proceedings in absentia in the jurisdictions of countries also takes different forms. For instance, although Georgian legislation allows for the conduct of court proceedings in absentia, it does not provide for comprehensive regulation of pre-trial in absentia. German legislation allows for proceedings in absentia only in cases of minor crimes (p. 9-10).

However, unlike German legislation, Azerbaijani criminal procedural legislation recognizes the possibility of proceedings in absentia in the prosecution of grave and especially grave crimes. Hence, this list includes grave and especially grave crimes against life and health, against the freedom and dignity of the individual, against property, in the field of economic activity, against public security, against the constitutional order and security, corruption, and against the rule of law. The fact that crimes may be prosecuted in absentia include crimes in the field of economic activity (smuggling, legalization of funds or other property obtained through criminal means), high treason, terrorism, abuse of office and other crimes used by local law enforcement agencies in politically motivated cases, gives reason to assume that in absentia proceedings will lead to abuse. This situation may lead to procedural violations, especially if the legal representation and defense of the accused are unsatisfactory.

Nonetheless, if the possibility of in absentia proceedings is established in domestic criminal procedural legislation, it should include several guarantees for the accused:

1. The accused must be informed comprehensively about the proceedings in absentia;
2. The accused's waiver of the right to appear before the court must be openly stated and clear to the law enforcement agency;
3. The accused must have the opportunity to defend oneself and be adequately represented;
4. The accused must have the right and guarantees to have a new trial in the case in which the verdict was issued in absentia.

Upon pointing at the norms of the current criminal procedural legislation regulating proceedings in absentia from this perspective, it can be stated that the abovementioned points are generally reflected. According to the CCP, information about proceedings in absentia is provided by available means, the opening of proceedings is carried out upon the motion of the investigator and the presentation of the prosecutor, and the accused has the right to apply for a new trial.

Nevertheless, one of the problems that may arise in this context may be the issue of providing the accused with defense. “Tribunat” has previously written about the spread of formal representation by a defense attorney in Azerbaijan. Quality legal assistance is an important part of criminal procedural legislation, as stipulated in Article 6(3)(c) of the European Convention on Human Rights, Article 61 of the Constitution of the Republic of Azerbaijan, and Article 19 of CCP.

The articles of the CCP regulating in absentia proceedings creates the impression that, as a rule, the legal representation of the accused is carried out through an appointed attorney provided by the state. Thus, according to Article 467-13.3, the accused must send information about his defense attorney to the body conducting the criminal proceedings based on his choice. Otherwise, the defense attorney is provided by the state. In addition, the issue of legal representation plays an important role in the opening of in absentia proceedings, since one of the three circumstances that the court considering this issue must take into account is “ensuring the right of the accused to receive legal assistance and defense.”

Through case-law of the European Court of Human Rights, although in absentia proceedings do not constitute a direct violation of Article 6 (Sejdovic v. Italy, § 82), the failure to provide access to legal assistance to an accused may lead to a violation of his right to a fair trial. The initiation of proceedings in absentia cannot be interpreted as a waiver of his rights because the accused did not appear in the proceedings (Karatas and Sari v. France, § 62). Access to legal assistance to an accused in absentia proceedings covers a number of issues, including the appointment of a lawyer. In the case of Lobzhanidze and Peradze v. Georgia, the Court found a violation of Article 6 where the State-provided lawyer failed to adequately defend the interests of the accused in absentia proceedings (§ 90).

Due to the absence of extensive information on the legal representation and defense of accused persons in criminal cases initiated in absentia, it is possible to assume that these persons are represented by state-appointed attorneys. According to the annual report of the Bar Association, in 2024 alone, 979 lawyers were paid for legal aid activities at the expense of the state. However, there are no data on how many of these lawyers participated in in absentia proceedings. The facts that state-appointed attorneys provide formal legal defense in political cases may lead to a violation of the right to a fair trial of accused persons (for example, Qafqaz Mammadov v. Azerbaijan, § 93).

“Tribunat” concludes that despite the inclusion of the institution of in absentia proceedings in the domestic legislation, it is difficult to make a unanimous decision on the effectiveness due to the short period of time. Even though the legislation contains guarantees for the protection of the rights and interests of the accused during the initiation of in absentia proceedings, the formal practice of attorneys, especially those provided at the expense of the state, raises questions from the point of view of criminal procedural legislation. In this case, the rights of the accused to a fair trial may be breached. In order to ensure effectiveness in absentia proceedings, it would be appropriate to more actively combat formal advocacy.