How to be? 

Justice is one of the fundamental principles of a healthy society. Structural economic development, prosperity, and cultural progress cannot be achieved without constructing a justice. In the absence of a true judicial system, people will be constantly exposed to the consequences of governmental arbitrariness, and they will have no interest in improving themselves or contributing to social life. For this reason, justice mechanisms are an absolute condition for the establishment of a just order.

Although the ideals of establishing justice are always desirable, their realization requires more specific arrangements. Different models are used in different countries to build justice institutions. Such models arise out of historical-political processes in these countries. However, there are at the same time certain international legal principles concerning the principles of justice.

These principles determine a framework for establishing justice institutions. The basic principles of justice are the following: 

1. Judicial self-governing bodies; 
2. Judicial independence and impartiality; 
3. Accessibility of courts; 
4. Immunity and security of judges; 
5. Guarantees of justice; 
6. Finality of judgements. 

Each of these principles embodies specific legal guarantees.

Judicial self-governing bodies: 

• A judicial body (institution) is the self-governance of judges who have the final decision-making authority in the judicial system without the interference of the legislative and executive bodies and the prevention of politicization of appointments to the post of judges. For the purpose of self-management of the judicial institution, a judicial self-governing body, i.e., the Judicial Council, which has the power of self-management and whose members are not politicized, should be established. This body should be essential for judges' appointment and have a decisive say in their disciplinary responsibility, including dismissal. In addition, the Judicial Council should have full decision-making authority over the budget of the judiciary.

Judicial independence and impartiality: 

• Court independence means that individual courts are independent of legislative and executive bodies, no matter what level they are at. However, lower courts should not be dependent on higher courts (the fact that higher courts overturn lower court decisions and give legal instructions to review a case does not constitute dependence).
  To ensure the appropriate level of court independence, the courts should be able to act with full authority when hearing cases on the basis of their institutional identity and to make independent decisions as to their functions. The neutrality of the courts lies in the fact that they are not stereotyped in relation to the parties at both preliminary hearing and at trial, and any interest of the judges hearing the case should be objectively and subjectively excluded. Judicial independence and impartiality also extend to juries competent to hear criminal cases.

Accessibility of courts: 

• The accessibility of courts is the availability of the judicial institution to interested parties at different levels. Various unreasonable obstacles to filing a complaint with the court should be removed. Legitimate restrictions for filing a complaint before the court (time limit, fee, subjective right, etc.) should be established in a reasonable manner.

Immunity and security of judges: 

• Judges should not be subject to any pressure or influence because of the cases they hear. For this purpose, their immunity should be defined at the legal level. However, necessary steps should be taken to eliminate the threats that may arise against them at the practical level. Cases should be assigned to judges on the basis of the natural arbitration criterion and court administrators should not play any role in the division of cases. Under no circumstances may administrative court judges dictate to individual judges how to make a decision on a case. The security of judges is that their material security shall be determined according to the law and in objective manner. Legislative and executive bodies should not deprive judges of their financial security since the latter do not handle a case on their instruction. The financial support of judges should be determined in a reasonable and proportionate amount for them to be able to hear cases and should not be reduced under any circumstances. The rules on immunity and security of judges should apply to juries hearing criminal cases within reasonable limits. 

Guarantees of justice:

• In addition to institutional guarantees of justice (independence, impartiality, competence), guarantees of due process of law are also a pre-requisite to the structure of the judicial system. The basic aspects of the right to justice shall be defined at the constitutional level and precisely embedded in procedural legal acts. The substantive guarantees of procedural justice include the following procedural rights: the adjudication of cases by an independent, impartial and competent court of law, accessibility of courts, fair hearing of cases, equality of parties, obtaining and challenging evidence. The practicality of these guarantees should be preserved by effective implementation of the right to appeal to higher courts.  

Finality of judgements: 

• The population should see that the judicial institution is competent, that is, its statements hold true, and it should seek to solve all legal disputes only within the framework of the judicial system.

What to change? 

Currently, there is no independent court and justice in Azerbaijan. Nobody rightly believes in justice. When people think of court, they think of corruption, bribery and order.

There are good reasons why courts look like this in the eyes of the population. Courts cannot make fair decisions because they are not independent. The fact that the courts are loyal to the current government results in the fact that the government creates conditions for the corruption of the judicial system. This quid pro quo relationship between the current government and the courts (benefiting from corruption in exchange for doing the government's bidding) undermines the foundations of justice.

Another problem of justice is personnel appointments. Almost all of the appointments to the judiciary are people loyal to the present government. These individuals come from long-term civil servants, law enforcement officers, lawyers working in government-related businesses, and groups loyal to the government, especially those with ties to the political elite. Based on their internal beliefs, they are not guided by the rule of law and the independence of justice, but by the interests of the current government. Persons outside this circle are not allowed to be appointed to the judicial system.

Personnel policy is continued by keeping judges under the shadow of the above corruption mechanism during their professional activity. However, judges cannot be independent under any circumstances. This corruption in the personnel policy has a negative effect on the impartiality of the courts. Because the judiciary, loyal to the government and committed to its law enforcement policy, cannot hear cases in the light of human rights principles.

There is no real self-management environment in the Judicial Legal Council, which is a judicial self-governing body. The judicial and legal reforms that the government claims to have implemented for years do not correct this situation. Still, the Minister of Justice is the face of the Judicial Law Council and the head of the judiciary in the eyes of the public. Such a stuff is enough to demonstrate the lack of judicial independence in Azerbaijan.

The reporting system in court cases still remains. No judge can make an independent decision on any case. All cases are reported to court presidents. Decisions on major cases are made in coordination with the higher court and executive bodies. The courts follow the political orders of the incumbent government.

The criminal justice system actually acts with a presumption of guilt. Azerbaijan’s criminal justice is practically unaware with the concept of acquittal. The number of acquittals in the country is still in the low single-digit percentage range. The judges hearing a case view all defendants as potentially guilty. Everyone in the country is a potential suspect. There is virtually no presumption of innocence. People have to convince the court of their innocence. The General Prosecutor's Office, the prosecution party, has a dominant voice in criminal cases. Judges are reluctant to oppose public prosecutions. The tradition of the Soviet prosecutor's office, accusing everyone as it wishes, has continued.

In administrative justice, courts are reluctant to take decisions against administrative bodies. Especially in administrative disputes against law enforcement agencies, including security agencies, citizens as plaintiffs are helpless. The administrative judicial reform, as part of the judicial reform, is one example of a big failure.

There is an endemic corruption in civil law cases. The e-justice reforms introduced by the present government have not led to any innovation except a continuation of corruption tends in the electronic form, realized in a written form.

In Azerbaijan there exists a serious shortage of lawyers. The Bar Association is not de facto independent and is dependent on the incumbent government. The recent legal reform did not resolve the shortage of lawyers; rather, it exacerbated that issue. This reform has not brought any benefit other than integrating the legal profession into the caste system of reliable lawyers.

How to change it? 

In order to address the above-mentioned justice issues, the judicial system should be reorganized and guarantees of its self-governance, independence and fairness should be both the legal and practical plane. In the light of the principles of organizing justice, a new judicial structure should be organized as follows.

Judicial organization: there are two types of building a judiciary:

(a) Judicial uniformity;

b) Judicial separation.

The principle of the uniformity of judicial practice is more often applied in Anglo-Saxon countries. in such circumstances, specialized courts in civil, administrative and other cases are not established.

On the other hand, the principle of judicial separation is applied in the countries of continental Europe. Judicial separation determines the establishment of general and specialized courts in legal cases of different nature. In accordance with this, specialized courts (administrative, commercial, family and other courts) may be established along with courts of general jurisdiction. 

Judicial separation is currently partially applied in Azerbaijan in accordance with the tradition of continental Europe. However, during the transitional period, it is desirable to use the approach of judicial uniformity for some time, given that the former composition of judges will change dramatically and new judicial appointments will be difficult.

Transitional judicial system: During the transitional period, the existing courts of appeals and the Supreme Court will be abolished and a single higher court will be established. Decisions of this court can be appealed to the Constitutional Court. The single higher court will be competent for 1-2 years until the new judicial system is established. The single higher court will be formed in seven territorial entities.

Judicial self-government in the new period: A Judicial Council, which is an autonomous self-governing body, will be established in the area of the judiciary. The Judicial Council shall be composed of 15 members: ten members will be of judicial origin (based on proportional representation at all levels of the judiciary) and four members of legislative origin, while one member will represent the executive body. The Judicial Council will be competent in matters of admission of judges, disciplinary responsibility of judges, budgetary management of the judiciary. The Supreme Court (administrative panel) will check the Judicial Council’s decisions (as to admission and discipline), while the Constitutional Court will check its decisions on the budget. Issues of status, general competence, composition, quorum and voting rights of the Judicial Council shall be enshrined in the Constitution. Other issues are subject to a special law on the judicial organization (this law could be adopted by an absolute majority of votes in parliament, subject to the Constitution).

Judicial structure in the new period: Based on the approach of judicial uniformity, unified provincial courts will be established according to administrative - territorial units (in this case, conditionally 14 provinces) throughout the country. Provincial courts could be organized according to the ratio of population in a province, at least two and a maximum of four courts. Factual and legal disputes shall be examined by provincial courts that are primary (high) courts. 

Each provincial court consists of four panels (collegiums). These include:

I. Civil law panel;

II. Criminal panel;

III. Administrative panel;

IV. Commercial panel.

With the establishment of a single court of appeals in each two provinces, 7 courts of appeals will be formed nationwide. The courts of appeal also have four panels mentioned above. These courts will generally hear legal disputes. But the provincial courts may commence de novo trials when they do not resolve factual disputes properly (special rules for this will be reflected in procedural legislation).

A single Supreme Court comes into being across the country. The above four panels of the Supreme Court also become available. Direct appeal to the Supreme Court is abolished. The Supreme Court will examine appeals only when there is a legal dispute between appellate courts. Therefore, specific acceptance criteria to file an appeal to the Supreme Court will become available. Each panel of the Supreme Court shall have the final word on legal practice (jurisprudence constante) in its field.

The activity of the Supreme Court’s panels will be bidirectional:

1) resolving individual disputes, albeit in exceptional cases (legal aspect);

2) developing judicial practice as a result of studying "ex officio" practice of the courts of appeal. 

Supreme Court decisions as to the admissibility may be reviewed by the Constitutional Court within the judiciary.

The Plenary Supreme Court and an additional cassation appeal shall be abolished;

The Constitutional Court shall be the exclusive court. The Constitutional Court shall have three functions from a judicial point of view:

1) constitutional review of lower level legislation;

2) examination of individual human rights complaints;

3) resolution of interagency disputes. Unlike the applicable legislation, the Constitutional Court shall not comment on ordinary legislation.

Criminal jury trial system: Jury courts comprised of 7 persons shall be organized for preliminary proceedings dealing with serious crimes. A serious offence is a criminal act that constitutes an offence rendering the offender liable to a prison term exceeding five years. The jury will be organized according to the principle of compulsion. Citizens shall serve as jurors on the basis of automatic call. But they will be exempted from jury service in a number of cases (convictions, language abilities, objections of the parties, and so on).

The function of the jury is to answer only the factual aspect of the charge, that is, the question of whether the act attributed to the defendant in the indictment was committed. After the jury answers this question, the legal characterization of the charge will be assessed by the judge. The judge must justify the jury's verdict on the factual aspect based on the evidence and his or her own judgement consistent with the legal characterization.

Constitutional status of the judiciary: The above-mentioned judicial self-government and judicial structure will be reflected in the Constitution. The Constitution would state that the number of provincial courts will vary from 2 to 4 depending on the proportion of the population, with a total of 7 courts of appeal to be established. In the same way, the Constitution will also introduce provisions for the single Supreme Court and the Constitutional Court.