Azərbaycan Respublikasının İnsan hüquqları üzrə müvəkkili (ombudsman) haqqında


Relizin Tarixi: 13.04.2020

Constitutional Law of the Republic of Azerbaijan

On the Human Rights Commissioner (Ombudsman) of the Republic of Azerbaijan

Chapter I. Grounds for the Activities and Appointment of the Human Rights Commissioner (Ombudsman)

Article 1. Grounds of the activities of the Human Rights Commissioner

1.1. The position of the Human Rights Commissioner of the Republic of Azerbaijan (hereinafter referred to as «the Commissioner») shall be set up to restore the human rights and freedoms enshrined in the Constitution of the Republic of Azerbaijan and the international treaties to which the Republic of Azerbaijan is a party, that are violated by governmental and municipal bodies and officials of the Republic of Azerbaijan and to prevent violation of human rights in cases as specified in this Constitutional Law.

1.2. The Commissioner shall perform the functions of a national preventive mechanism as specified in the Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. With the aim of preventing torture and other cruel, inhuman and degrading treatment or punishment, he/she shall, on a regular basis or as deemed necessary, visit the places which detained persons can not leave at will.

1.3. The Commissioner shall oversee the fulfillment of the duties arising out of the requirements of the Law of the Republic of Azerbaijan "On Access to Information" by governmental bodies, municipalities or officials that are owners of information.

1.4. The Commissioner shall cooperate with local, regional and international organizations in accordance with the directions of his/her activities.

1.5. The activity of the Commissioner shall not restrict and substitute the competence of other governmental bodies ensuring the protection and restoration of violated human rights and freedoms.

1.6. Revision of the activities of the President of the Republic of Azerbaijan, members of the Milli Majlis of the Republic of Azerbaijan and the judges of the Republic of Azerbaijan shall not be in the scope of competence of the Commissioner.

1.7. The Commissioner may submit proposals to the President of the Republic of Azerbaijan with regard to granting pardon, citizenship and political asylum.

1.8. The Commissioner may submit proposals to the Milli Majlis of the Republic of Azerbaijan with regard to the adoption, abolition of laws or amendments to them, with a view of ensuring human rights and freedoms. The Commissioner may submit a proposal to the Milli Majlis of the Republic of Azerbaijan with regard to declaring amnesty.

1.9. The Commissioner shall have the right to examine complaints on violations of human rights relating to red tape, loss of or delayed delivery of documents in courts as well as delays in the execution of court decisions.

1.10. The activities of the Commissioner shall be based on the principles of publicity, transparency, lawfulness, justice, and impartiality.

Article 2. Election of the Commissioner

2.1. The Commissioner shall be elected with the majority of 83 votes in the Milli Majlis of the Republic of Azerbaijan among three candidates nominated by the President of the Republic of Azerbaijan.

2.2. If the Milli Majlis of the Republic of Azerbaijan fails to come to a decision with regard to the election of the Commissioner, the President of the Republic of Azerbaijan shall, within 15 days, submit a new list of three candidates to the Milli Majlis of the Republic of Azerbaijan.

Article 3. Requirements concerning the candidacy of the Commissioner

3.1. Any citizen of the Republic of Azerbaijan of high moral character and at the age of not less than 30 years who has a higher education and experience in the field of human rights protection may be elected as a Commissioner.

3.2. A person who possesses a dual citizenship, or has obligations before other states, or works in legislative, executive and judicial bodies, or is engaged in any remunerated activity, excluding research, teaching and creative activities, or the legal incapacity of whom has been judicially established, or who has been convicted of a serious and particularly serious crime may not become a Commissioner.

3.3. The Commissioner may not be engaged in any political activity and may not be a member of any political party. The Commissioner may not be represented in the leadership of any non-governmental organization.

3.4. The Commissioner shall, within five days of his or her election, waive any activity incompatible with his or her status.

3.5. On the day of his or her election, the Commissioner shall take an oath at the Milli Majlis of the Republic of Azerbaijan as follows: «I swear to faithfully and honestly fulfil my powers as the Human Rights Commissioner of the Republic of Azerbaijan, to observe the Constitution and laws of the Republic of Azerbaijan, and to act independently and impartially».

Article 4. Term of office of the Commissioner

4.1. The Commissioner shall be elected for a period of 7 years.

4.2. The same person may hold the post of Commissioner not more than twice.

4.3. If the new Commissioner is not re-elected before the day of expiry of term of the previous, the acting Commissioner continues fulfilling his/her functions. In these circumstances the term of the Commissioner is considered to be extended until re-election of a new Commissioner.

Article 5. Safeguards of the independence of the Commissioner

5.1. The Commissioner shall be independent and obey only the Constitution and laws of the Republic of Azerbaijan.

5.2. The independence of the Commissioner shall be ensured by the following:

5.2.1. s/he shall not be replaced, while in office;

5.2.2. s/he shall enjoy immunities;

5.2.3. it shall be inadmissible to interfere with his or her activities by any governmental or municipal body or official;

5.2.4. s/he shall be provided with financial and social guarantees.

5.3. Declaration of a state of emergency or martial law shall not cease or restrict the activities of the Commissioner.

Article 6. Immunities of the Commissioner

6.1. The Commissioner shall be inviolable while in office.

6.2. The Commissioner, while in office, shall not be subjected to criminal proceedings, shall not be arrested or detained, shall not be subjected to administrative reproof by court, shall not be subjected to search and examination save in cases where s/he was caught red-handed. In a case, where the Commissioner is caught red-handed, the body that has arrested the Commissioner, shall, within 24 hours, inform the Milli Majlis of the Republic of Azerbaijan and the Prosecutor-General of the Republic of Azerbaijan.

6.3. The inviolability of the Commissioner may be terminated only by a decision of the Milli Majlis of the Republic of Azerbaijan taken by 83 votes’ majority following a motion of the Prosecutor-General of the Republic of Azerbaijan.

6.4. The inviolability of the Commissioner shall be extended also to his or her home, official premises, means of transport and communication, correspondence, private property and documents.

6.5. Any former Commissioner shall remain inviolable for the activities conducted and the opinions expressed while performing the powers of Commissioner. Criminal or administrative proceedings with regard to offences committed by the Commissioner in that period shall be carried out as provided for in article 6.3 of the present Law.

Article 7. Termination of powers of the Commissioner before expiry of his or her term of office

7.1. Powers of the Commissioner shall be terminated before expiry of his or her term of office by a decision of the Milli Majlis of the Republic of Azerbaijan taken by 83 votes’ majority on its own initiative or following a recommendation of the President of the Republic of Azerbaijan in cases, when:

7.1.1. the requirements relating to the Commissioner have been violated;

7.1.2. the Commissioner has completely lost his or her capacity to perform his or her duties.

7.2. In cases, where the following circumstances are declared at the Milli Majlis of the Republic of Azerbaijan, the Chairperson of the Milli Majlis by his or her decree shall terminate powers of the Commissioner before expiry of term of office of the latter:

7.2.1. death of the Commissioner;

7.2.2. a judgment of conviction in respect of the Commissioner entered into force;

7.2.3. a written voluntary request of the Commissioner for resignation.

7.3. When powers of the Commissioner are terminated before expiry of his or her term of office, the President of the Republic of Azerbaijan shall, within 30 days, submit to the Milli Majlis of the Republic of Azerbaijan a new list of three candidates for the election of a new Commissioner. The Milli Majlis of the Republic of Azerbaijan shall, within 15 days, adopt an appropriate decision on the election of the Commissioner.

Chapter II. Consideration of complaints on violation of human rights and performance of the functions of the national preventive mechanism

Article 8. Submission of complaints on human rights violations

8.1. The Commissioner shall examine complaints on violations of human rights from citizens of the Republic of Azerbaijan, aliens and stateless persons, as well as legal entities (hereinafter referred to as «Applicant»).

8.2. A complaint may also be lodged by a third person, including non-governmental organizations with consent of the victim of the human rights violations. If it is impossible to obtain consent of the victim of human rights violations (if that person died, lost his or her legal capacity etc.), a complaint may be lodged by a third person or a non-governmental organization without consent.

8.3. The Commissioner shall not receive complaints from governmental bodies.

8.4. A complaint may be lodged with the Commissioner within a period of one year from the date on which an alleged violation of rights of the applicant occurred or s/he became aware of that violation.

8.5. Complaints sent by persons held in penitentiary establishments, investigation isolators and temporary detention centres shall be delivered to the Commissioner within 24 hours without being subjected to any kind of censorship.

Article 9. Content of a complaint on human rights violation

9.1. A complaint on human rights violation shall set out: name, surname, patronymic name and address of the applicant; the essence of a decision or an act (or inaction) that violated applicant’s rights; the place and date of writing the complaint and the signature of the applicant. Any other materials or judicial decisions relating to the complaint may be added to that complaint.

9.2. If the complaint does not contain the last name, first name, patronymic, address and signature of the applicant (in relation to legal entities - the name and legal address of the legal entity, the signature of its head), the appeal shall be considered to be anonymous and shall not be pursued, save in cases referred to in article 9.3 of this Law.

9.3. If the circumstances indicated in an anonymous complaint are attested by sufficiently evidential and substantiated facts, the Commissioner accepts such complaint for examination.

9.4. If a complaint is submitted verbally, a staff member of Commissioner’s Apparatus shall take notes of the contents of the complaint on a special letterhead, which shall be signed by the applicant.

9.5. Upon a request of the applicant, the Commissioner shall keep the data concerning that person confidentially.

Article 10. Taking a decision in respect to a complaint on human rights violations

10.1. In respect to a complaint on violation of human rights lodged with the Commissioner, s/he takes one of the following decisions:

10.1.1. accept the complaint for investigation;

10.1.2. refuse to pursue the complaint.

10.2. In case of refusing to pursue the complaint, the Commissioner shall, within 10 business days, submit a grounded written reply to the applicant.

Article 11. Grounds for refusing a complaint on human rights violation

11.1. The Commissioner shall not examine complaints in the following cases:

11.1.1. when the requirements of article 8.4 of the present Law have been violated;

11.1.2. when the complaint is beyond the competence of the Commissioner;

11.1.3. when a complaint is anonymous save in cases referred to in article 9.3 of the present Law;

11.1.4. when a complaint is being examined within court proceedings;

11.1.5. when there is no new information, facts and evidences in a re-submitted petition.

Article 12. Procedure of investigation of complaints on violations of human rights and execution of functions of the national preventive mechanism

12.1. While investigating the circumstances indicated in a complaint on violations of human rights, the Commissioner shall receive observations from the body or official which is complained of. Within 10 business days the observations shall be submitted to the Commissioner.

12.2. While investigating the circumstances indicated in a complaint on human rights violation and while executing the functions of the national preventive mechanism, the Commissioner shall have the following rights:

12.2.1. to access, without hindrance and prior notification, to any governmental and municipal body, military units, as well as to the police stations, temporary detention facilities, investigatory isolators, penitentiary institutions, military guardhouses, psychiatric institutions, detention centers for illegal migrants and other places, which detained persons cannot leave on their own will; to meet privately or when deemed necessary with participation of an expert or interpreter and interview in private detained persons, as well as any other persons who may provide relevant information; to get acquainted with and obtain copies of the documents confirming the lawfulness of detention and providing information on treatment and conditions of detention of the persons mentioned above; to prepare acts and document the process and the results of the actions undertaken; to provide relevant recommendations to the competent authorities and to receive responses to these recommendations within the identified time limits;

12.2.2. to receive necessary information, documents and materials, within 10 business days, from any governmental and local self-governed bodies and officials;

12.2.3. to obtain court decisions in force concerning criminal, civil and administrative cases, as well as cases, the criminal proceedings in respect of which were terminated;

12.2.4. during investigation of a complaint, to receive written explanations from officials;

12.2.5. to give fact-finding tasks to relevant bodies for examination of the circumstances reflected in the complaint (examination can not be entrusted to a body or person against which the complaint is submitted);

12.2.6. to charge relevant state bodies and organizations with a task of preparing an expert opinion;

12.2.7. to be received without delay by heads and other officials of government and municipal bodies, commanders of military units, the directors of police stations, temporary detention facilities, investigatory isolators, penitentiary military guardhouses, psychiatric institutions, detention centers for illegal migrants, as well as other places, which detained persons cannot leave on their own will.

12.3. No person or organization can be persecuted or prosecuted for submitting information to the Commissioner.

12.4. With consent of the person whose human rights have been violated, the Commissioner carries out investigations on his or her own initiative in cases of special public importance, or in cases, where the interests of persons who are not capable to vindicate their rights themselves are affected.

12.5. If during an investigation any violations other than those mentioned in the complaint are revealed, the Commissioner shall carry out relevant investigation provided that this is within his or her competence; if not, s/he shall refer the materials to a relevant authority.

12.6. Complaints shall be examined within 30 days. If additional investigation or materials are required for examination of the complaint, this term is extended to another 30 days. If it is necessary to conduct an additional investigation from the date of written request of the complainant, the period for considering the complaint is extended to 30 days.

Article 13. Results of examination of complaint on human rights violation

13.1. The Commissioner shall, within 5 business days, submit written information to an applicant of the measures taken in respect of his or her complaint, and results of the examination.

13.2. If, as a result of an examination, the Commissioner finds a violation of the human rights of an applicant, he/she takes the following measures:

13.2.1. to demand from the governmental or local self-governed body, whose decision or action (inaction) violated the human rights, to remedy those violations (the appropriate bodies and officials shall, within ten business days, submit to the Commissioner a written information of the measures taken in respect of those violations. Where such information is not submitted or the appropriate body fails to comply with the demands of the Commissioner, the latter applies to the superior authorities or other state bodies).

13.2.2. in cases where criminal elements are revealed, to apply to relevant bodies with request to initiate criminal proceedings;

13.2.3. to apply to the subjects entitled to file additional cassation complaints;

13.2.4. to submit proposals to relevant bodies on instituting disciplinary proceedings against the officials whose decision or act (inaction) violated human rights and freedoms;

13.2.5. to inform mass media of the results of the examination conducted in respect of human rights violations;

13.2.6. in cases, where violations of human rights have a special public importance, if the means available at the disposal of the Commissioner are not sufficient for remedying those violations, to apply to the President of the Republic of Azerbaijan, or to report to the Milli Majlis of the Republic of Azerbaijan;

13.2.7. to apply to a court with a view to protect the rights and freedoms violated by decision or action (inaction) of a state or local self-governed body, or an official;

13.2.8. to apply to the Constitutional Court of the Republic of Azerbaijan with a inquiry in cases where the rights of a person are violated by legislative acts in force.

Article 13-1. Specific aspects of consideration of complaints related to the violation of the right to obtain information

13-1.1. The Commissioner investigates the circumstances reflected in the complaint related to the violation of the right to obtain information within 10 work days. If the complaint requires specification or additional explanation and documents are needed for investigation of the complaint, with prior written notice to the complainant the Commissioner can extend the time of consideration of the complaint for 10 work days.

13-1.2. The Commissioner shall not consider the following complaints:

13-1.2.1. if a complaint is not related to the activities of the state body, municipality or state official holding the specific information;

13-1.2.2. if a court decision on a case has entered into force;

13-1.2.3. if a complaint does not properly use opportunities for obtaining information created by state bodies, municipalities and state officials holding information.

13-1.3. while investigating circumstances of a complaint related to the violation of the right to obtain information, the Commissioner clarifies compliance of the state bodies, municipalities or state officials holding information with the following provisions of the Law of the Republic of Azerbaijan “on Access to information”:

13-1.3.1. registration of a request for obtaining information (hereafter- information request);

13-1.3.2. satisfaction of an information request within the period and the method envisaged by the Law;

13-1.3.3. compliance of rejection to execute the information request with the requirements of the Law;

13-1.3.4. clear and full compliance with the obligation to make the information public;

13-1.3.5. compliance with the obligation to create an Internet database of information;

13-1.3.6. clarifies limitation put on obtaining information in a manner defined by the Law.

13-1.4. In respect of a complaint related to the violation of the right to obtain information the Commissioner can require the state bodies, municipalities and state officials holding information to remedy the violation.

13-1.5. The state bodies, municipalities and state officials holding information shall report on undertaken measures to the Commissioner in writing within 10 business days. In case of failure to provide feedback or to react in accordance with the Commissioner's requirements the Commissioner can address the relevant higher authority.

Article 14. Annual report of the Commissioner

14.1. Not later than 2 months after the end of each year, the Commissioner shall submit to the President of the Republic of Azerbaijan an annual report on the protection of human rights in the country and deliver that report verbally before the Milli Majlis of the Republic of Azerbaijan.

14.2. The annual report shall indicate the governmental and local self-governed bodies or officials having violated human rights, and failed to comply with the demands of the Commissioner, and of the measures taken in this regard.

14.3. The annual report of the Commissioner shall also contain general views, opinions and recommendations concerning the protection of human rights.

14.4. The annual report shall be submitted to the Cabinet of Ministers of the Republic of Azerbaijan, the Constitutional Court of the Republic of Azerbaijan, the Supreme Court of the Republic of Azerbaijan and the Prosecutor-General of the Republic of Azerbaijan.

14.5. The Report shall be published in the newspaper «Azerbaijan» and «Compilation of legislative acts of the Republic of Azerbaijan».

Article 15. The duty of the Commissioner to observe confidentiality of some information

15.1. The protection of information constituting state secrets, which became known to the Commissioner while performing his or her activities, shall be carried out in accordance with the Law of the Republic of Azerbaijan «On State Secrets».

15.2. The data concerning personal and family life of applicants, which became known to the Commissioner while examining the circumstances indicated in a complaint, shall not be made public without consent of those persons.

Chapter III. Organisation of the work of the commissioner and its guarantees

Article 16. Social, financial and other guarantees of the Commissioner

16.1. The Commissioner shall receive a salary equal to 2230 manats.

16.2. The Commissioner shall be exempted from military draft and periodical military trainings.

16.3. The Commissioner shall be given a diplomatic passport during his or her term of office.

16.4. The Commissioner shall be given leave as provided for in the legislation of the Republic of Azerbaijan.

16.5. The term of office of the Commissioner shall be included in his or her general, special and uninterrupted record of service.

16.6. On taking a leave, the Commissioner shall be given an allowance in the amount of his or her 2 months' salary for the purposes of medical treatment and recreation.

16.7 Pension benefits of the Commissioner, ex-Commissioner and members of his family are provided in accordance with the Law of the Republic of Azerbaijan "On labor pensions".

Article 17. Apparatus of the Commissioner and its regional offices

17.1. An Apparatus shall be set up for providing the Commissioner with legal, organizational, research-analytical, informational, material, technical and financial services. Regional centres of the Commissioner can be established in the fields.

17.2. The Apparatus of the Commissioner shall have a seal and letterheads with the State Emblem of the Republic of Azerbaijan imprinted on them.

17.3. The Apparatus and the regional centres shall act in accordance with the «Regulation on the apparatus and regional centres of the Commissioner on human rights of the Republic of Azerbaijan» which shall be affirmed by the Commissioner.

17.4. The structure, staff listing and expenditure estimates of the Apparatus and regional centres of the Commissioner shall be determined by the Commissioner.

Article 18. Rights and duties of the staff of the Apparatus and regional centres of the Commissioner

18.1. The staff of the Apparatus and regional centres of the Commissioner shall be appointed and dismissed by the Commissioner.

18.2. Rights, duties and responsibilities of the staff of the Apparatus and regional centres of the Commissioner shall be determined in accordance with the Labour Code of the Republic of Azerbaijan, the Law «On State Service» of the Republic of Azerbaijan and other legislative acts of the Republic of Azerbaijan.

Article 18-1. National Preventive Group

18-1.1. The National Preventive Group is established within the Commissioner's Office for the purposes of fulfilling the functions of the National Preventive Mechanism referred to by Article 1.2. of the present Law. Persons not below the age of 25, with higher education, experience in human rights protection and of high moral values can be appointed as members of the National Preventive Group. The members of the National Preventive Group are appointed by the Commissioner based on transparent procedures for the period of 3 years.

18-1.2. The National Preventive Group has the following rights:

18-1.2.1. to access police stations, temporary detention facilities, investigatory isolators penitentiary institutions, military guardhouses, psychiatric institutions, detention centers for illegal migrants and other places, which detained persons cannot leave on their own will at any time, without hindrance or prior notification; to meet privately or when deemed necessary with participation of an expert or interpreter and interview in private the detained persons, as well as any other persons who may provide relevant information; to get acquainted with and obtain copies of the documents confirming the lawfulness of detention of the detained persons, as well as providing information on treatment and the conditions of detention of the abovementioned persons; prepare acts, document the process and the results of the actions undertaken;

18-1.2.2. to be received immediately by the directors of police stations, temporary detention facilities, investigatory isolators, penitentiary institutions, psychiatric institutions, detention centers for illegal migrants and other places, which detained persons cannot leave on their own will;

18-1.3. Members of the National Preventive Group cannot be forced to testify about the facts that became known to them in relation to execution of their duties or to reveal these facts by any other method. This guarantee shall remain in effective in respect of those persons who have ceased their membership with the National Preventive Group.

18-1.4. A member of the National Preventive Group cannot be apprehended or arrested, subjected to search or personal examination while fulfilling his/her duties in places, which detained persons cannot leave on their own will. No arrest, check or seizure can be undertaken in respect of postage, telegraphs or other correspondence to a member of the National Preventive Group.

Article 19. Financing of the work of the Commissioner

19.1. The activity of the Commissioner, his/her Apparatus and regional centres shall be financed from the State budget of the Republic of Azerbaijan.

19.2. The amount of current expenses as part of the annual funds allocated to finance the activities of the Commissioner can not be less than the amount provided for this purpose in the previous financial year.

Article 20. Responsibility for impeding the work of the Commission

Persons guilty of impeding the work of the Commissioner bear responsibility in accordance with the legislation of the Republic of Azerbaijan.President of the Republic of Azerbaijan

Heydar ALIYEV

Baku, December 28, 2001

No. 246-IIKQ

As amended on September 1, 2004, No. 722-IIKGD; March 3, 2006, No. 71-IIIKGD; October 2, 2006, No. 128-IIIKGD; October 19, 2007, No. 431-IIIQD; June 19, 2009, No. 832-IIIKQD; November 26, 2009, No. 912-IIIKQD; 6 May 2011, No. 102-IVKQD; June 24, 2011, No. 163-IVKQD; June 27, 2014, No. 1011-IVKQD; April 15, 2016, No. 201-VKQD; October 1, 2018, No. 1233-VKQD; November 27, 2018, No. 1335-VKQD; April 13, 2020, No. ____ («LegalActs» LLC).

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