AZERBAIJAN: National Laws

Summary: General overview of Azerbaijan's national legal provisions on children's rights, including guidance on how to conduct further research.

National laws on children's rights

Status of the CRC in national law
Article 151 of the Constitution of Azerbaijan provides that international treaties, including the Convention on the Rights of the Child, have superior status to national legislation.  The Constitution and any Act accepted by result of a referendum, however, take precedence over international treaties. This means that in the event of a conflict between the provisions of the CRC and domestic law, the Convention should prevail. The Committee on the Rights of the Child has expressed concern, however, that the courts do not have a record of directly applying the Convention, and in some cases have refused to do so.

Constitution: Section Two of the Constitution contains a large number of rights provisions that apply regardless of age, but the Constitution also contains a number of provisions that make specific reference to the rights of children:

• Art. 17(II): requires parents to "take care of their children and their education" and requires that the State implement this responsibility
• Art. 17(III): provides that children who do not have parents or guardians, or who are deprived of parental care, are under the protection of the State
• Art. 17(IV): provides that it is "prohibited to involve children in activities that may cause threat to their lives, health and morality"
• Art. 17(V): sets 15 as the minimum age for employment
• Art. 17(VI): requires the State to supervise the implementation of the rights of children
• Art. 34(III): provides that childhood is protected by law
• Art. 34(IV): provides that the care and education of children is both a right and a responsibility of parents
• Art. 34(V): creates a responsibility for children to respect and care for their parents
• Art. 66: provides that nobody may be forced to testify against his or her child

Legislation: There is no comprehensive Children's Act in Azerbaijani law, though there is thematic legislation on children's rights. Legislation of particular relevance to the rights of children includes, but is by no means limited to:

• Law No. 499 of 19 May 1998 on children's rights
• The Family Code (amended 2011)
• Law No. 1058-IIIQ of 22 June 2010 on the prevention of domestic violence
• Law No. 919-IIQ of 24 May 2005 on the prevention of negligence towards minors and their delinquency
• Law No. 904-IIIQD of 27 October 2009 strenghtening State support for families in situations of disadvantage
• Law No. 833-IIIQ of 19 June 2009 on education
• Law No. 992-IIIQD of 20 April 2010 to improve the monitoring and enforcement of birth registration by health facilities
• Law No. 971-IIIQD on the provisions of free-of-charge physical training sport services for children from low income families, children without parents and those deprived of parental care, children of preschool age and children with disabilities
• Law No. 1039-IIQ of 21 October 2005 on the Targeted State Social Allowance

Legal Research:
The National Assembly (Milli Mejlis) maintains an official website (http://www.meclis.gov.az/) offering legal resources in Azeri, and the website of the President of Azerbaijan publishes laws (http://en.president.az/documents/laws/), decrees (http://en.president.az/documents/decrees/) and orders (http://en.president.az/documents/orders/) in English. The International Labour Organisation's NATLEX database also provides links to a selection of national legislation in English (http://www.ilo.org/dyn/natlex/country_profiles.nationalLaw?p_lang=en&p_country=AZE), and the Constitution is available through the website of the Constitutional Court (http://www.constcourt.gov.az/en/index.php?option=com_content&view=article&id=253&Itemid=59). In addition, the GlobaLex initiative at New York University has published a guide to legal research in Azerbaijan (http://www.nyulawglobal.org/Globalex/Azerbaijan1.htm) and the U.S. Law Library of Congress (http://www.loc.gov/law/help/guide/nations/azerbaijan.php) and the World Legal Information Institute (http://www.worldlii.org/catalog/2751.html) have assembled a selection of links to relevant legal and governmental resources.

Case law
CRC Jurisprudence
Please contact CRIN if you are aware of any cases in national courts that reference the Convention on the Rights of the Child.

Case Law Research
The Constitutional Court of Azerbaijan publishes its decisions in Azeri (http://www.constcourt.gov.az/az/index.php?option=com_content&view=article&id=164&Itemid=60) and English (http://www.constcourt.gov.az/en/index.php?option=com_content&view=article&id=254&Itemid=61).  The Supreme Court also maintains an official website in Azeri (http://www.supremecourt.gov.az/?mod=1&c=0&lang=az) and English (http://www.supremecourt.gov.az/?mod=2&c=3&cat=800&lang=en)

Compliance with the CRC
In its 2012 Concluding Observations, the Committee on the Rights of the Child noted that Azerbaijan accords legal priority to ratified international treaties, but expressed concern that the courts do not have a record of directly applying the Convention on the Rights of the Child. The Committee expressed particular concern at reports that law-enforcement and judicial bodies have refused to directly apply the provisions of the Convention, "particularly in the context of legislation relating to juvenile justice, rights of children with disabilities and children without parental care." Accordingly, the Committee urged the State to conduct a comprehensive review of domestic legislation to ensure the full compliance with the Convention, and recommended that the State consider enacting a comprehensive Child Rights Act to fully incorporate the provisions of the Convention and provide clear guidelines as to their consistent and direct application.

In depth analysis
The Committee on the Rights of the Child highlighted a number of areas of national law as in need of reform in order to bring them into conformity with the Convention on the Rights of the Child. In particular, the Committee focussed on the inadequacy of the law with regards to asylum-seeking and refugee children. In domestic law, there were no specific protections for unaccompanied and separated children seeking asylum, nor was there a consistent and child-sensitive interpretation of the definition of a refugee. The Committee also noted that national law did not recognise certain peoples, specifically Chechans, as refugees. The Committee urged the State to address these concerns by assuming responsibility for the legal protection and welfare of asylum-seekers, in particular in the areas of health, education and social services, as well as addressing the potential statelessness of refugee children born in the country.

With respect to juvenile justice, the Committee remarked on system-wide flaws in relevant national law and practice. In particular, the Committee noted that there were no law enforcement staff who specialised in child-related investigations, that children can be tried as adults for certain offences, that lengthy periods of pre-trial detention are common and that children are not always detained separately from adults. The Committee also expressed concern at the poor conditions in facilities where children are detained and the lack of availability of recovery and reintegration services for children. The Committee recommended addressing these concerns through a range of legislative, policy and training reforms, including the adoption of a draft Law on Juvenile Justice under discussion.

The Committee has also urged the State to address "the severe limitations in taking into account the best interests of the child during adoption procedures", the lack of measures to ensure that adopted children are consistently informed of their status and provided with information on their biological parents, and reports that adoption is promoted as an alternative to public care. The Committee recommended that the State conduct a review of its legislation and practices on adoption to ensure that the best interests of the child are paramount throughout the adoption process, and that children have access to information concerning their origins.

Current legal reform projects
At the time of Azerbaijan's 2012 session with the Committee on the Rights of the Child, draft laws on the protection of children and on juvenile justice were under consideration.