The Institute for Democratic Initiatives has published a report on “The application of bail (alternative measure to pre-trial detention) in Azerbaijan”.
The bail contributes to both the better guarantee of the right to liberty and security and the humanization of criminal proceedings. In spite of being significant, the lack of detailed study on bail to date has encouraged consideration of this topic. Our purpose in conducting the study is to evaluate the legislation regulating the bail restrictive measure and the application of that legislation in practice and to make recommendations to expand the scope of the bail restrictive measure.
Despite its importance, there hasn't been much research done on bail up to this point, which has sparked our research. The study's objective is to assess the laws governing the bail, how those laws are actually implemented, and to give recommendations for broadening the bail’s application.
The major loophole of domestic law is that the only legal act that governs bail is the Code of Criminal Procedure. To enhance and advance the mechanism of this restrictive measure, however, a more comprehensive regulatory framework is required. One of the most important restrictions is the norm on the amount of bail. The minimum amount of bail set for the relevant offenses is inconsistent with the real earnings of people and is disproportionate to the means of all sections. According to Article 164 of the CCP, the amount of the bail must be greater than the damage caused as a result of the offense or its unpaid part (Article 164.5-1 of the CCP), but shall not be excessively high (Article 164.5 of the CCP). So, the amount of the bail is not less than five thousand manats for an offence which that not pose a major public threat (Article 164.5.1 of the CCP), not less than ten thousand manats for a minor offense or an offense, the public threat of which is only related to pecuniary damage, or a major offense committed through negligence (Article 164.5.2 of the CCP). However, the minimum wage in Azerbaijan was 300 manats in January 2022, while the average nominal wage was 765.9 manats per month.
Two methods were used to assess the application rate of bail. Firstly, the inquiries were sent to State Statistical Committee (SSC) and 12 district courts. Secondly, telephone interviews were held with 14 advocates, members of The Azerbaijani Bar Association. Of the inquiries sent to 12 district courts, two did not answer at all, five refused to answer on various grounds, and only five responded to the questions. Even responses from 5 courts confirm that bail is not applied in practice:
- 3 courts did not receive a motion regarding the choice of the bail in 2016-2021.
- One court lacked information regarding the use of bail in 20216-2021.
- 1 court did not consider the materials related to the choice of the bail restrictive measure in 2016-2021.
In the survey conducted among advocates, 45 lawyers with different periods of professional activity experience specializing in criminal cases were selected, and it was possible to contact 14 of them. Two of these advocates work in the province, and 12 work in Baku. None of the mentioned advocates submitted a motion in court regarding the application of the bail restrictive measure during their experience, with the exception of one advocate, whose motion was rejected.
Furthermore, our practical study shows that the norms related to the bail restrictive measure have become "dead norms" and are not applied in reality.
The issues mentioned in the report were researched in a comprehensive way, and finally, specific recommendations were given to the relevant institutions.