NATIONAL PROSECUTION PROBLEMS IN INTERNATIONAL CRIMES

The level of scientific and technical progress, development of information and communication systems, high speed of transportation, establishment of transnational cooperation, effective economic cooperation of nations and countries, integration and globalization, growing role of international corporations and relations at several fields of public life increases the importance of international law that brings the look of integrity and completeness to the modern world.
Modern international law is becoming universal regulator that personifies human values and priorities.
The adoption of Convention on International crimes, establishment and actions of international tribunals made important influence to the national law and policy of several states. It results in the prevention of ethnic conflicts, aggressive wars, punishment of those committed a crime against humanity and hereby warning others, plays role of catalyst in the development of human rights defence; establishes atmosphere for the harmonization of law in the world and Europe.
At the same time, the actions aimed to prevent international crimes and punish sinners at international organizations level stimulated legal reforms at several states, formulated national and international supervision mechanism over the state performance.
One of the most complicated problems of international law is providing integration between interstate law system and international legal systems that international organizations base on and formulates during prosecution process of international crimes.
There is no view separation in law science and international relations about interstate and international law being two different law systems. Each of them operates at specific spheres, has its own objects, and there is no legal subordination in between them. Hereby, material unity of world and united values of humanity, supreme creature of universe, makes interaction of these two legal systems necessary.
Although, there are dualist and monist approaches to the issue the primate of international law over national law in the modern world acts out as one of the important player in peace building, fulfilling intergovernmental humanity tasks, effective mutual cooperation, providing human rights and liberties.
The mutual interaction of national law with international norms, has been identified in the 151st article of the Constitution of Azerbaijan Republic “Legal value of international acts”:
Whenever there is disagreement between normative-legal acts in legislative system of the Azerbaijan Republic (except Constitution of the Azerbaijan Republic and acts accepted by way of referendum) and international agreements wherein the Azerbaijan Republic is one of the parties, provisions of international agreements shall dominate.
International agreement ratified by Azerbaijan Republic are too important for the stability of international law and relations in between Azerbaijan and foreign countries.
The application of this postulate in the practise is not simple and clear as it seems at the first glance. Especially, unlike transnational crimes, for providing criminal prosecution, investigation, taking respective measure, providing adequate reparation for victims of actions categorized as international crime, that belong to all and separately to each countries, but those that cannot be solved by countries themselves national means and methods are not enough.
As it seems from the definition of international crime, for providing prosecution of international crimes by states the actions categorized as international crime and to be investigated must be criminalized by the local criminal legacy.
As based on existing legacy, only the actions (actions or inactions) containing the elements of crime defined in the Criminal Code of Azerbaijan Republic establishes criminal liability (The Constitution of Azerbaijan Republic, Article 80, The Criminal Code of Azerbaijan Republic, Code 3, The Criminal-Procedure Code of Azerbaijan Republic, Article 1)
For the actions not considered as a crime and not defined in criminal legislation, no one can be commended to criminal responsibility or criminal prosecution.
The legislation on criminal procedure of the Azerbaijan Republic determines whether acts which appear to be offences are criminal or not and whether a suspect is guilty or not, and determines legal procedures governing criminal prosecution and defence of suspects or accused persons as provided for by criminal law.
In the Azerbaijan Republic criminal prosecution is defined as criminal procedure designed to establish the criminal act, incriminate the person who committed the offence covered by criminal law, charge that person, pursue that charge in court, sentence the offender and carry out coercive procedural measures where necessary (Criminal Procedure Code of Azerbaijan Republic, Article 7.0.4)
It is true that, both in the Constitution (Article 151), and in Criminal Procedure Code (2.3) the superiority and supreme legal force of agreements that Azerbaijan Republic has joined over other normative legal acts is clearly defined.
However, as criminal prosecution in the Constitution of Azerbaijan Republic is directly related to main human and civil rights and liberties (Article 26, 27, 32, 46, 52, 60, 63, 67 and etc.), the consideration of action as a crime and implementation of punishments and other legislative measures is defined only by Criminal Code of Azerbaijan Republic. Here the principal of direct superiority of international norms, as well as implementation corresponding criminal legislation is not allowed.
So, even if the action that is not defined as a crime in Criminal Code of Azerbaijan Republic is considered as a crime in international norms, Conventions and agreements, Charter and Covenants their “implementation” is not allowed within Azerbaijan Republic territory.
This rule is not applied to Criminal Procedure Code of Azerbaijan Republic, the regulations defined in international agreements can be applied here.
After remarking this important postulate, we can move to the content of criminal prosecution operations conducted for determination criminal acts categorized as international crime in Criminal Code of Azerbaijan Republic by national prosecuting authority, finding guilty person, making accusation, his/her defence in the court, requesting punishment, application of coercive procedural measures.
VII Part – 16 and 17th chapters of Criminal Legislation of Azerbaijan Republic were dedicated to international crimes (Anti-Peace and inhumane crimes). In this part included crimes accepted by international juridical public, defined as international crimes, inhumane crimes, genocide, war crimes and etc. However, the problem of unification of criminal legislation with international tribunal charters and Rome status of International Criminal Court still remains.
As seen, there is necessity for criminalisation of other actions that are considered crime at international level in Azerbaijan legislation.
Actions known as international crime and accepted by our government are categorized as villainy, so their criminal prosecution has to be in the charge of public. Criminal prosecution in Azerbaijan Republic is implemented based on basis and orders in Criminal Procedure Code of Azerbaijan Republic and respective normative legal act.
All respective operations for providing implementation of criminal prosecution are applied for prosecution of international crimes.
Besides that, Azerbaijan Government states that by ratifying international norm and agreements on criminal prosecution, it accepts them as a part of national legislation.
The government takes benefit from the experience of international organizations (international tribunals), foreign countries in implementation of national legislation and prosecution of acts considered international crime.
Based on international experience, I want especially remark one point: according to the Article 46.2 of Criminal Procedure Code of Azerbaijan Republic The reason for starting criminal proceedings may be an application from an individual, information from a legal entity (or official) or the media, or information directly obtained by the preliminary investigator, investigator or prosecutor, concerning an offence committed or in preparation.
As we know in the process of collection information on international crimes, delivering to world public and international organizations, investigations of facts, preparing accusations against sinners, collecting proofs (fact-finding) international and local non-governmental organizations plays vital role.
Although the representation of non-governmental organizations in this process has been stated in the Article 71 of UN Charter, it has not been considered in national legislation.
Non-governmental organizations kind of provides control over governmental authorities, becomes protective factors in resolving of conflicts, take part as an expert or witness in the process.
They act objectively and fairly in the monitoring and fact-finding process, and support peace building. In the base of number of international criminal prosecution process stands reports of non-governmental organizations.
Amnesty International, International Federation of Red Cross and Red Crescent Societies, International Migration Organization, Human Rights Watch, Helsinki Watch and etc. are playing an important role in resolving conflicts in different regions all over the world, conducting monitoring on international crimes and implementing mission of assessment. Today, in different conflict zones control on the human rights and following international war principles has been conducted by non-governmental organizations.
In the prosecution process of international crimes the role of non-governmental organizations requires separate investigation.
Considering the size of dissertation and concreteness of topic, I want to state again that in the 2nd part of Article 46 of Criminal Procedure Code after the phrase of “the reason for starting criminal proceedings may be an application from an individual” there is need to add phrase of “public organizations”.
As it has been stated, criminal prosecution is criminal procedure. According to the existing legislation, means the totality of procedures conducted and procedural decisions taken on criminal prosecution. (Criminal Procedure Code, Article 7.0.3.).
The prosecuting authority are preliminary investigation, investigation and prosecution authorities and courts dealing with criminal cases and other prosecution material (Criminal Procedure Code, Article 7.0.5.).
According to the 47 Article, “Proceeding authorities of Criminal Prosecution”, of Criminal Procedure Code of Azerbaijan Republic an authority dealing with criminal process is responsible for proceeding. The responsibility is given to the respective inspector, investigator, prosecutor or court with the materials on criminal proceeding, pre-court predictive proceeding or accusation in the private prosecution procedure.
Based on 2nd part of that article, in accordance with legislation of Azerbaijan Republic and international agreements that Azerbaijan has joined respective court, prosecutor and investigator is responsible for establishment of criminal prosecution relations with respective authorities of foreign countries, as well as to proceed implementation of request of judicial and investigative authorities of that countries”.
Here to state that, issues like establishment of relations with international tribunals on international criminal prosecutions, implementation of requests of tribunals about giving accused person to the tribunal, fulfilling orders of tribunal prosecutor and etc. has been remarked in 47 Article of Criminal Procedure Code. Non-existence of this kind of legislative code may create some question for local authorities.
By considering that it is not possible to investigate this problem deeply and comprehensively in this dissertation, I want shortly state that to add “International Criminal Tribunals and” phrase to the beginning of 47.2 article of Criminal Procedure Code, will eliminate probability of establishing legal and diplomatic dilemma situation that German government and criminal prosecution authorities faced while International Criminal Tribunal on Yugoslavia made request for D. Tadic accused on crime against Bosnian Muslims. It has to be remarked that, it is too theoretical issue for Azerbaijan Republic for now. However, its two main theoretical - legal perspectives have to be considered:
1. By making this addition in the Criminal Procedure Code, Azerbaijan Republic states that it is ready for cooperation with existing and to be established tribunals on criminal prosecution process against its citizens. Especially, signing agreement on establishment of Police Cooperation and Coordination Centre of Organization of Islamic Cooperation and making proposal on establishment of permanent Islamic Countries Tribunal of at Conference of Organization of Islamic Cooperation in Istanbul, April 2016 this idea is actualizing again.
2. Armenian aggression on Azerbaijan, especially judgement perspectives of Khojaly Genocide as international crime necessitates cooperation of Azerbaijan Republic with international tribunals created by Azerbaijan Republic.
As international criminals are categorized as villainy, their criminal prosecution is implemented in the public charge. (The Criminal Procedure Code, Article 37.6). The criminal prosecution of these crimes is conducted by inspector or prosecutor in accordance with existing legislation.
While debating on criminal prosecution problems of international crimes it should be remarked one issue in the legal literature. In the Criminal Procedure Code it has distinctly stated if court is an authority conducting proceeding criminal prosecution or not.
In 7.0.2., 7.0.5., 7.0.9., 47.1., 47.2., 48.1. and other articles of The Criminal Procedure Code while debating on proceeding authorities of criminal prosecution somehow remarking the name of courts, as well as, stereotype formulated in the Soviet period as a result of accusation tradition of courts creates an opinion on jurist scholars and practical staff that courts belong to proceeding authorities of criminal prosecution.
In practise, the accusation performance of some judges against main principals of legislation and judgement, deemed advantageous position of state prosecutor in the process of judicial review forms misconception in many citizens.
It has to be remarked that, in the socialist societies court was accepted as authority protecting only socialist society, state and citizens from illegal actions. Courts did not give enough importance to the responsibility of state to its citizens.
In accordance with the constitution of Azerbaijan Republic (Article 125-132), the legislation of Azerbaijan Republic on “Courts and Judges” it should be clearly marked in the Criminal Procedure Code of Azerbaijan Republic that “justice courts in the Azerbaijan Republic are not included in proceeding authorities system of criminal prosecutions. In this regard, there is no responsibility on courts.”
This remark is enhancing international reputation of The Criminal Procedure Code and justice system of Azerbaijan while being one of the important indicator of unbiased, objective, fair and lawful evaluation of the criminal prosecuting authority’s performance. As long as the system of international criminal prosecution authorities is not clearly defined, their functions are distinct, legislative base is not perfect, the trust of international public, international organizations and foreign countries will be less.
One of the main task of the Criminal Code and Criminal Procedure Code of the Azerbaijan Republic is unification of national legacy with the Rome status of International Criminal Court.

REFERENCES:
1.Azərbaycan Respublikası Konstitusiyası. 12 noyabr 1995.
2.Azərbaycan Respublikası Cinayət Məcəlləsi. 30 dekabr 1999.
3.Azərbaycan Respublikası Cinayət-Prosessual Məcəlləsi. 14 iyul 2000.
4.Ümumi hüquq və dövlət nəzəriyyəsi. V.V. Lazarevin redaktəsi ilə. Bakı. Qanun. 2006. Səh 208.
5.İ.M.Cəfərov. Azərbaycan Respublikası Konstitusiyasının şərhi. “Hüquq ədəbiyyatı” nəşriyyatı. 2004. Səh 529.
6.“Məhkəmələr və hakimlər haqqnda” Azərbaycan Respublikası Qanunu. 10 iyul 1999.
7.“Prokurorluq haqqında” Azərbaycan Respublikası Qanunu. 7 dekabr 1999.
8.UN Charter. 26 June 1945.
9.The Rome Statue of International Criminal Court. July 17, 1998.

Keywords: prosecution, prosecution of international crimes, international crimes, national criminal prosecution, prosecution problems of international crimes in Azerbaijan Republic.
Açar sözlər: cinayət təqibi, beynəlxalq cinayətlər, beynəlxalq cinayətlərin təqibi, milli cinayət təqibi, Azərbaycan Respublikasında beynəlxalq cinayətlərin təqib problemləri.
Ключевые слова: судебное преследование, международные преступления, национального уголовного преследования, прокуратуры проблемы международных преступлений в Азербайджанской Республике.

Xülasə
Məqalədə insanlıq və sülh əleyhinə olan beynəlxalq cinayətlərin milli orqanlar tərəfindən təqibi mexanizmləri öz əksini tapıb. Bu cinayətlərə qarşı mübarizədə, günahkarların məsuliyyətə cəlb olunmasında beynəlxalq və milli təqib orqanlarının fəaliyyətinin uzlaşdırılması, hər iki hüquq sisteminin unifikasiyası problemlərinə toxunulub. Beynəlxalq normaların milli qanunvericilikdə implementasiyası və xarici ölkələrin təcrübəsinin tətbiqi ilə bağlı konkret təkliflər irəli sürülüb.

Резюме
В статье исследуется механизмы уголовного преследование так называемых международных преступлений международными и национальными органами, пути сближение и унификации международных и национальных правовых систем.
Автор выносит конкретные предложения по имплементации норм международного уголовного права в национальную правовую систему и применение опыта зарубежных стран по преследованию международных преступлений в деятельности органами Азербайджанской Республики.

SEVDA KARIMOVA
Master of “Transnational Criminal Law”,
BSU