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Azerbaijan: Analysis From Washington -- Breaking A Vicious Circle

Washington, 16 June 1999 (RFE/RL) -- Azerbaijani courts have broken a Soviet-era vicious circle in which individuals once convicted had little choice but to turn again to crime upon their release from prison.

The courts in that Caucasian republic did so by declaring a Soviet law that allowed courts to confiscate the property of individuals convicted of many crimes as part of their punishment.

By taking this step, Chingiz Bashirov, the deputy chairman of the Azerbaijani Supreme Court, told an RFE/RL press briefing in Washington Tuesday that the courts have done more than reduce the number of repeat offenders in the Azerbaijani criminal justice system. They have highlighted the importance of court-mandated changes in procedural rules that protect the civil and human rights of individual citizens.

During the Soviet period, individuals convicted of crimes often were punished not only by the imposition of fines or time in prison; they also faced the confiscation of all their property. This policy further reduced the protections available to privately held property of any kind. But perhaps more importantly, it meant that individuals drawn into the criminal justice system seldom were able to escape, even after serving their original sentences.

Bashirov expressed his personal pride in the fact that this was the first provision of Soviet law that the Azerbaijani courts declared unconstitutional. He said that the courts there have also struck down several other Soviet-era provisions that had restricted civil and human rights and thus laid the foundation for the creation of a civil society.

He noted that the courts also have eliminated Soviet-era restrictions on where individuals can live and on how they can dispose of their property, and he pointed to other decisions that have expanded the rights individuals have to avoid self-incrimination. Under Soviet law, individuals did not enjoy any constitutional protection against self-incrimination, but by decision of Azerbaijani courts, Bashirov pointed out, citizens there now do.

Bashirov's comments about the actions of the Azerbaijani courts are relevant to all post-Soviet states. First, they call attention to the importance of procedural rules. While issues of crime and punishment often appear less dramatic than other constitutional concerns, they in fact lie at the basis of a law-based society. If individuals can count on the courts to protect them they will have the confidence to act increasingly independently.

As has been pointed out so often by Western judges, the protections of individuals whom the state has charged with crimes is one of the most accurate barometers of individual rights. Such protections inevitably acquire meaning first and foremost in the procedures which courts apply to their cases.

Second, as the Azerbaijani jurist acknowledged, the real test of the introduction of these procedural protections is the willingness of the authorities to carry out the decisions of the courts and of the population to demand that the authorities do so.

In Azerbaijan as in other post-Soviet states, neither the authorities nor the population have a long tradition of doing either. Under Soviet conditions, the Communist Party, not the courts, determined outcomes, and the population simply accepted that as a reality.

But Bashirov suggested that in recent times, both the authorities and the citizens in Azerbaijan were increasingly inclined to look to the courts for protections, for providing and then defending the rules of the game within which the state, the society, and individuals can operate with greater transparency and predictability.

And third, Bashirov's comments underscore that any evaluation of the status of civil society must look beyond the declarative language of constitutions or presidents or even beyond the normative decisions of courts at various levels. Instead, such evaluations, he said, need to take into consideration the various ways in which officials and the population at large react to both this language and these decisions.

Changing their way of thinking, Bashirov concluded, may require the passing of the current generation and the appearance of a new one. But the procedural innovations of the Azerbaijani courts point the way to the eventual emergence of a civil society, even if some other indicators point in a different direction.