2.1 General definitions

Identification of the GO\PO by the other legislative acts of Azerbaijan

The main term used by the relevant laws of the Azerbaijan Republic in the context of state service is “state servant” (“dövlət qulluqçusu” in Azerior “gosudarstvennyi sluzhaschyi” in Russian) but not “government official”.

According to the provisions of Article 2 (“State service”) of the Law of the Azerbaijan Republic “On State Service” the term “State and\or Civil service” is defined as: “performance of the official duties of state\civil servants in the area of implementation of state objectives and functions in accordance with the Constitution and other legislative acts of the Republic of Azerbaijan”.

In Azerbaijan the provisions of Law “On State Service” apply to the state servants carrying out their state services in all three branches of state powers such as: executive power; legislative power; and judicial authorities.

However, the peculiarities of services of the state servants (“state servant” here means (“dövlət qulluqçusu” in Azerior “gosudarstvennyi sluzhaschyi” in Russian) but not “government official”) carried out in: the prosecutor’s office; bodies of justice; national security; defense; emergencies; border service; migration service; internal affairs; customs; tax; foreign affairs; field-chasseur service and the National Bank of Azerbaijan - are regulated by other specific laws of the Azerbaijan Republic. These regulations take into consideration provisions and requirements of the Law of the Azerbaijan Republic “On State Service” related to the rights of citizens of Azerbaijan to be recruited to the state service, recruitment to state service on competition and transparency basis, performance appraisal of the state servants and other principles of state service. The conduct of service in these bodies is considered to be a specific type of the state service¹.

The Law of the Azerbaijan Republic “On State Service” is also applied to the persons working in the offices of the aforementioned bodies (with the exception of the National Bank of Azerbaijan) and the persons not owning military and\or other specific ranks (employees not being civil servants, such as cleaners, yard cleaners, gardeners, guards, stokers, workers without professional qualifications, etc.).

However, the provisions of the Law of the Azerbaijan Republic “On State Service” are not applied to: the President of the Republic of Azerbaijan; deputies of Milli Mejlis of the Republic of Azerbaijan; Prime Minister of the Republic of Azerbaijan and his deputies; judges of courts of the Republic of Azerbaijan; an Attorney of the Republic of Azerbaijan for Human rights (Ombudsman); heads of central executive power bodies and their deputies; chairman, deputies, secretaries and members of the Central Election Commission of the Republic of Azerbaijan; chairman, deputy and auditors of the Chamber of Accounts of the Republic of Azerbaijan; officials (heads) of local executive bodies; deputies of the Supreme Mejlis of Nakhchevan Autonomous Republic; Prime Minister of Nakhchevan Autonomous Republic and his deputies; heads of central executive bodies of Nachchivan Autonomous Republic; military servants; and also the employees of institutions being subordinated to the relevant bodies of executive power (Labour relations of these employees are regulated by the provisions of the “Labour Code of Azerbaijan”).

The identification and legal status of these aforementioned persons (in fact, not the persons themselves as a “physical persons” but the official positions occupied by them in the relevant state and government bodies) are provided and determined by the Constitution and the other legislative acts of the Azerbaijan Republic.

Under Article 14 (“State Servant”) of the Law of the Azerbaijan Republic “On State Service” the term “State Servant” is defined as: “a citizen of the Azerbaijan Republic who holds salaried (the salary should be exclusively paid from the state budget) state service position in the order determined by the Law Republic of Republic “On State Service”, and who swears allegiance to the Republic of Azerbaijan when being recruited to the state service on administrative position”.

The State servant holding an administrative position and being entitled to have authority is considered to be a “state official”.

Besides the definitions of “state servant” (“dövlət qulluqçusu”) provided by the Law of the Azerbaijan Republic “On State Service”, the Article 308 (“Abusing official powers”) on p. 2 of the Criminal Code of Azerbaijan, which came into effect from 01 September 2000, specifies the term “public official” as: “a person who is constantly, temporarily or on special power carrying out functions of authority representative; either carrying out organizational - administrative or administrative functions in state bodies, institutions of local government, state and municipal establishments, enterprises or organizations, and also in other commercial and non-commercial organizations.

Article 16 of the “Administrative Infringements Codeof Azerbaijan”, dated 11 July 2000, provides a similar definition of the term “public official”.

With regard to corruption crimes, under the provisions of the Criminal Code of Azerbaijan the state servants and employees of institutions of local government who are not admitted as public officials, and also employees of other commercial and non-commercial organizations bear the same criminal liabilities under Articles of Chapter 33 of the Criminal Code of Azerbaijan (“Corruption Crimes and Crimes against state, interests of state service and institutions of local government power and also in other commercial and non-commercial organizations”) in cases, which are specially provided by appropriate Articles.

Status of Government officials

One of the important requirements of financial nature aimed at prevention of corruption among the Azerbaijani state servants, provided by the acting legislation, is the requirement of submission of the relevant information by the state servants and\or public officials within the procedure laid down by the legislation, such as²:

• yearly, on their income, indicating the source, type and amount thereof;
• on their property being a tax base;
• on their deposits in banks, securities and other financial means;
• on their participation in the activity of companies, funds and other economic entities as a shareholder or founder, on their property share in such enterprises;
• on their debt exceeding five thousand times the nominal financial unit ;
• on their other financial and/or property obligations exceeding thousand times the nominal financial unit³ (appr. 1,100 manat).

The information envisaged in Article 5 of the Law of Azerbaijan “On Combating Corruption” No 580-IIQ, dated 13 January 2004, may be requested in an order defined by the legislation. However, the acting legislation does not strictly emphasize this requirement as a permanent and compulsory norm and the grounds provided by law for requesting such information are not entirely clear.

“Prohibition for next of kin to work together”is another requirement provided by law on prevention of corruption of state servants and public officials.The next of kin of a state servant or public official may not hold any office under his or her direct authority, except for the elective offices and other cases provided for in the legislation. The persons who violate the aforementioned requirement of law shall, within 30 days of the finding of that violation, be transferred, if such violation is not removed voluntarily, to another office In cases when this is not possible, either of the persons concerned shall be dismissed from his or her office.

2.2. List of persons subject to anticorruption regulations

Under the Article 2 of the Law “On Combating Corruption” the following persons are subject to offences related to corruption:

• persons elected or appointed to State bodies within the procedure laid down in the Constitution and laws of the Republic of Azerbaijan;
• persons who represent State bodies withspecial powers;
• public servants who hold administrative office;
• persons who exercise management or administrative functions in appropriate structural units of the State bodies, in State-owned institutions, enterprises and organizations as well as in enterprises in which the controlling package of shares is owned by the State;
• persons whose nominations to elective offices in the State bodies of the Republic of Azerbaijan were registered as stipulated by Law;
• persons elected to municipal bodies within the procedure laid down in the legislation of the Republic of Azerbaijan;
• persons with management or administrative functions in municipal bodies;
• persons with management or administrative functions in non-State entities discharging the powers of State authorities in cases provided for by law;
• persons who obtain material and other values, privileges or advantages for having unlawfully influenced the decision of an official by using his or her authority or contacts;
• individuals or legal persons who unlawfully offer, or promise, or give material and other valuables, privileges or advantages to an official, or who mediate in such acts.

Persons referred to in the Article above shall be regarded as “officials”.

On the territory of the Republic of Azerbaijan the Law “On Combating Corruption” shall apply to all individuals, including foreigners and persons without citizenship, as well as legal persons. Beyond the territory of the Republic it shall apply to citizens of the Republic of Azerbaijan and legal persons registered in the Republic of Azerbaijan, in accordance with the international treaties to which the Republic of Azerbaijan is a party (Article 3, the Law of Azerbaijan “On Combating Corruption”).
Bodies carrying out the fight against corruption (Article 4, the Law of Azerbaijan “On Combating Corruption”):

• All State bodies and officials shall, within their powers, fight against corruption. In cases, where an corruption-related offence leads to administrative or criminal responsibility, fight against corruption shall be carried out by the law enforcement bodies within the procedure laid down by law.
• Functions of a specialized body in the area of corruption prevention shall be discharged by the Commission on Combating Corruption of the Republic of Azerbaijan.
• The Commission shall consist of members appointed by the executive, legislative and judicial bodies. The powers of the Commission shall be determined by a statutory act.

2.3 Legislative changes

In February and March 2011 the President of the Azerbaijan Republic signed several decrees designed to increase transparency and efficiency of state bodies. Under the Decree of 25 February 2011 “On the improvement of the social protection of the traffic patrol service officers of the Ministry of Internal Affairs and some measures on the regulation of traffic rules” 25 percent of the fines collected for the violation of traffic rules will be added to monthly salaries of policemen of the traffic patrol service and other officers participating in the regulation of traffic. The Cabinet of Ministers was given a month to prepare proposals on amendments to legislation in order to ensure that payments of fines for traffic offences are made only by bank transfer or credit card. The Ministry of Internal Affairs was also instructed to increase control over the compliance of traffic security officers with the requirements of legislation while on duty and during the review of administrative violations.

Under the Decree of 14 February 2011 “On the improvement of social protection of officials of the State Customs Committee, the simplification and increase of transparency in customs procedures” the State Customs Committee, Ministry of Internal Affairs and Ministry of Justice have to ensure that the procedures on customs registration, state registration, inclusion in the Registry, issuing of state registration documents and number plates and procedures on ownership, use and transfer rights on vehicles are carried out according to the "one-stop shop" principle.

The Decree also requires all customs payments to be made to the State Customs Committee via bank transfer or credit card. In order to increase operational efficiency and transparency in the services rendered by customs bodies the Committee was tasked with establishing an electronic administration system (electronic queue).
Under the Decree 25 percent of the extra budgetary funds of the Customs Committee formed from allocations of confiscated goods and fines will be added to the monthly salaries of the customs officers.
Three presidential Decrees of 3 March 2011 define measures for transparency and efficiency in the work of the Customs Committee, Ministry of Transport and Ministry of Internal Affairs.
Under the Decree №-393 the Cabinet of Ministers was given two months to simplify its procedures on rendering services and issuing documents, registration procedures for the transfer of vehicles to third parties on the basis of rent or letters of attorney which are carried out by the Traffic Police Department of the Ministry of Internal Affairs.
Under the Decree №-396 the State Customs Committee together with the State Border Service were given a month to ensure that all relevant laws and regulations on customs, information on tariffs and list of restricted goods are displayed at all border posts so that they are visible to the public and also to make arrangements to calculate customs tariffs on goods electronically.
Under the Decree of 11 March 2011 “On measures for improvement of work of the Anti Corruption Department at the Prosecutor General's Office of the Republic of Azerbaijan”, the Department’s staff is to be increased from 40 to 100 prosecutors. The Cabinet of Ministers is also instructed to increase substantially the salaries of officers of the Anti Corruption Department at the Prosecutor General's Office of the Republic of Azerbaijan and take necessary measures to improve this Department’s material maintenance.

A draft law submitted to parliament by the President of the Azerbaijan Republic in March 2011 envisages allocating 25 percent of the fines collected for the violation of migration rules to monthly salaries of migration service officers.

Another draft law submitted to the parliament by the President of the Azerbaijan Republic in March 2011 envisages amendments to the Detective Search Activity Act, under which the anticorruption Department at the Prosecutor General's Office, which used to have only powers of investigation, will be vested with the authority to carry out special investigation means into corruption offences. The amendments go beyond this to exclude all other law enforcement agencies from carrying out policing in respect of corruption offences, with the exception of legitimate extraordinary circumstances.

A draft law on amendments to the Criminal Code submitted to the parliament by the President of the Azerbaijan Republic in February 2011 envisages extending the scope of subjects of corruption crimes. Under new amendments, the subjects of corruption crimes will include all categories of civil servants listed in the Civil Service Act, employees of institutions who, although they do not occupy administrative and managerial posts, are still materially in charge of affairs, employees of the municipalities, officials of foreign states, "other employees" of international organizations, members of international parliamentary assemblies, officials and judges of the international court, arbiters of international arbitrary tribunals, foreign and local jurors. In terms of active and passive bribery the legislation is to introduce the acceptance of an offer or promise to do so as well as the offer and promise of a bribe.

Besides, in order to ensure the transparency and efficiency and also to enable direct communication between citizens and government officials the President of the Azerbaijan Republic issued a Decree “On some measures in the sphere of organization of provisions of electronic service delivery by the State Bodies” No 429, dated 23 May 2011.

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