Introduction

The rationale that the prosecutor joining as a party to legal proceedings in criminal justice and beyond is in the public interest, could be considered a generally accepted position. However, the question is whether the concept of the public interest, apparently self-explan­atory, is, in fact, so explicit and clear. Clarification of this question requires an examination of the concept public from various angles. An overview of the legislative provisions regulat­ing the prosecutor’s participation in different proceedings may facilitate this clarification. The effectiveness of prosecutorial participation in advancing the public interest in matters of so­cietal concern needs careful consideration. It may be assisted by comparison with foreign and international experience, which will be reflected to a certain extent in this paper.

When the European Court of Human Rights deals with the issue of by prosecutorial inter­vention in areas beyond criminal proceedings, it distinguishes between the different sub­stantive rights which may come into play with such intervention, all derived from Article 6 of the Convention: the right to an independent and impartial tribunal; the right to adversarial proceedings; the right to equality of arms; and the right of access to a court. (ECHR, 2011 ). The issue of representation of the public interest may not fall under any of these headings, as the primary concern of the Convention is the protection of the rights and freedoms of an individual in respect of the state. However, the interests of the public reflect the interests of the mass of individuals and therefore the protection of the public interest may require similar safeguards.

Public Interest

As the research puts it, the public interest is generally regarded as the common good for many, except for those who are ‘sensitive to the subtler nuances of political language’, ex­tracting the incompatibility of these concepts from the perspective of historical development. (Douglas, 1980, p.103) The public interest is a living concept, which has developed histori­cally and it continues to develop, while bearing features of the environment in which it evolves. Its development is primarily based on a premise of the preponderance of general interest above that of a narrow group of members of the society. On a societal scale of relations, the weight of the interest of a few against the interest of the public could be bal­anced only by the power of law. The paramount position of law above the wishes of the government and other state mechanisms has been emphasized in great works of both past and present.

Public vs Publique

Both criminal and civil procedural legislation in Azerbaijan stipulates the role of the pros­ecutor as a party to the process acting on behalf of the state for the protection of the public interest. The legislation emphasizes the attachment of the prosecutor rather more to the state than to the public.

According to Collins Dictionary (6th ed.), ‘public’ means relating to the government or state, or things that are done for the people by the state. It also denotes ‘relating to all the people in a country or community’ (Collins, 1994). The second meaning is more in tune with the common understanding of the term “publique, qui est commun, a I'usage de tous, ac­cessible a tous”, according to the Larousse Dictionary. (Larousse, 2011). Therefore, this paper will further refer to both terms in order to distinguish between these two meanings.

Guardian of public interest

For the past twenty years, Azerbaijani prosecutors have been seen as the agents of public interest exclusively within the bounds of criminal justice. However, the prosecutor is entitled to play an active role beyond the criminal justice system, too. Despite the existence of stat­utory provisions empowering prosecutors, they are passive here. Thus, the statutory provi­sions empowering prosecutors are yet to be fully applied and, most importantly, pass the test of a hearing in court. There is a prospect of change towards a more active role in this area due to the new strategic goals set for the Prosecutor’s Office within the national process of rebooting the judicial and legal systems. Earlier, the judicial system was decentralized, with the establishment of regional serious crime and appeal courts. The review of criminal law paved the way for considerable easing of punishment. The Bar Association of Azerbaijan has been rebuilt, with the numbers of licensed court advocates rocketing.

As regards the Prosecutor’s Office, President of Azerbaijan Ilham Aliyev spoke of the concept of reforms in the law enforcement system and the place of the Prosecutor’s Office on 01/05/2020. The new legal landscape foresees a leading role for the Prosecutor’s Office, and not only in the fight against crime. That shall be complemented by a proactive role for the institution in other areas. In particular, the Prosecutor’s Office shall be more active in the retrieval of properties that are ill-gotten gains. As the head of state put it, the Prosecutor’s Office must be at the forefront in securing the interests of the state and the rule of law, especially in the domains of healthcare, education and culture, so that people and the public are satisfied with the work performed therein. (Azertag,2020)

For an understanding of the present position and for the planning of measures to reach those strategic goals, it is necessary to work through the statutory provisions that regulate the activity of the Prosecutor’s Office. Unlike any other of the country’s law enforcement agencies, the Prosecutor’s Office of the Republic of Azerbaijan is an institution that belongs to the Judicial Branch of power and is one of the few state institutions directly mentioned in the Constitution of the Republic of Azerbaijan, 1995. It is thus considered a ‘constitutional body’ within the legislative tradition of Azerbaijan. In addition to other statutory powers, it is entitled to prosecute on behalf of the state in courts, according to the Constitution of 1995 and Criminal Procedure Code of 2000. In line with its function to represent the state and public interest in criminal justice, the Prosecutor’s Office has been entitled to manage pre­trial proceedings and defend state interests in different types of court hearing. Naturally, that power does not go unchecked. The Prosecutor General, the Office’s leading official, reports on its activity to both the legislature and the head of state. An exception to this rule concerns information about an active criminal investigation, according to ss. 43 and 44 of the Prose­cutor’s Office Act 1999. The Prosecutor’s Office is, moreover, subject to full scrutiny by the court while exercising powers that restrict human rights and freedoms, according to Section 45 of the same Act.

As mentioned above, the authority of the prosecutor is not confined to criminal justice. The prosecutor plays a similarly important role in civil justice, in representing the state and public interest in cases of utmost significance. This principle permeates the provisions of civil, administrative and family law. The prosecutor is entitled to institute a civil action against the defendant or party responsible for his or her action, on behalf of persons with limited physical or mental capacity, according to Section 181.7.2 of the Criminal Procedure Code 2000. Civil claims could be brought and considered within a criminal case, according to Section 179 of the Criminal Procedure Code 2000. Furthermore, the Civil Procedure Code establishes the prosecutor’s role as defender of the public interest in Section 306 of the Criminal Procedure Code 2000. Thus, the prosecutor initiates civil actions seeking proprietary rights, including ownership, usage and control of property. It is also the prosecutor who brings bona vacantia claims to obtain title over unclaimed property for the state.

In addition, the prosecutor plays a pivotal role in proceedings concerning administrative infractions, which is a kind of liability for civil wrongs (torts) carrying sanctions in the form of fines, warnings, civil confiscations etc. The prosecutor takes pre-emptive action to suppress infractions and oversees proceedings to secure compliance of the administrative infraction proceedings with the Constitution 1995 and legislation, according to Section 54.1 of Admin­istrative Infractions Code 2015. It is also the prosecutor who oversees the lawfulness of provisional measures in administrative infractions proceedings, according to Section 6 of the Administrative Infractions Code 2015. The prosecutor looks into the lawfulness of a prelimi­nary administrative arrest_made in the course of administrative infractions proceedings in order to secure the defendant’s appearance in a court hearing pending, or to isolate a person posing a danger to the public by his illegal behaviour.

Within criminal justice, but beyond the realm of pre-trial proceedings and state defence in court, the prosecutor is empowered to represent the public interest in the execution of pun­ishment. Under Section 520 of the Criminal Procedure Code 2000, the prosecutor is a party to court proceedings reviewing the grounds and reasons for the postponement of execution of punishment, relief of a convict from undergoing punishment on the grounds of health or statutory limitation, release on parole, commuting punishment, alteration of a correctional and treatment facility, application of the amnesty law, accounting time under medical treat­ment in the term of punishment to be served, elimination of a criminal record and other issues. The prosecutor provides an opinion on issues of pardoning too. Furthermore, the prosecutor reviews the probation service case file in deciding whether to file for incarceration before the court, in cases when the convict allegedly breaches parole conditions.

However, the power of the prosecutor is subject to the general rule established by the Constitution for all state institutions. According to Article 71.X of the Constitution 1995 on guarantees of the rights and freedoms of man and citizen, state bodies may function only on the basis of the present Constitution, in the manner and within the boundaries prescribed by law. In one of the most recent cases taken up on the 23/02/2021, the Constitutional Court of the Republic of Azerbaijan ruled for a strict interpretation of the powers of a prosecutor in administrative infractions proceedings. Effectively, the Constitutional Court left to the legis­lature the decision as to whether the prosecutor should be more active in pursuing public interest cases. This brings us back to the main question. Armed with the statutory provisions on the power of the prosecutor and insight into the prosecutor’s role in the modern judicial and legal system, one may arrive at a critical view of the entitlement to represent public interest, as conceptually defined above.

Past reasons leading present dysfunctional character of the system

The interest of the state has been different from the interest of the public for quite a long period in Azerbaijan, from ail the time it was part of the Soviet Union. For over seventy years, private property was some kind of exception to the common rule that everything belonged predominantly to the state. Such a situation could hardly have passed without any bearing as to which interest is now considered public. In the Soviet Union, the concept of state and public could hardly be distinguished. The Soviet law enforcement and justice systems prior­itized the protection of the state’s interest over that of the people, i.e. the public (publique).

After regaining its independence, Azerbaijan took the path of democratization, which also encompassed the Prosecutor’s Office. Shaped in the early 1990s, the Criminal Law of mod­ern Azerbaijan adopted as one of its founding principles the guilty person’s liability for an action that posed a danger to the public, according to Section 6 of the Criminal Code 2000. Although a similar provision existed in Soviet Criminal Law, it was more symbolic in mean­ing. The Criminal Law of Azerbaijan makes it clear that society’s interest might not be the same as that of the state, but it shall be of no less importance, and sometimes even of greater importance. Thus, the crime of Abuse of Office in Section 308 of the Criminal Code 2000 foresees the official's intentional use of his official powers to gain illegal advantage for himself or third parties in connection with the performance of official duties, or his failure to use his official interests in the interests of service, when such behaviour results in significant harm to the legitimate interests or legally protected interests of society or state.

While an overview of the Criminal Code 2000 does not reveal serious flaws in represent­ing the interest of the general public, the situation is different in civil justice. Both Civil Pro­cedure Code 2000 and Family Code 2000 contain a cap on the role of the prosecutor as a guardian of the public interest, in contrast with his representation of the state’s interest. Ac­cording to ss. 65 and 72 of the Family Code, the competent social service authority informs the prosecutor when triggering a process to deprive of parental rights. Furthermore, accord­ing to Section 50.2 of the Civil Procedure Code 2000, in cases of an appropriate request from a state department or organization, or legal persons founded by the state or state de­partment, the prosecutor bringing a civil claim to protect the interest of the state could be considered a party to a civil case. The meaning of the word ‘appropriate’ needs to be spec­ified and tested in court to settle the civil jurisprudence. Otherwise, what might merely seem to be synonymous with ‘complying with the requirements of the law’, could become another cap on the powers of the prosecutor. This issue could be the subject of further legal research and is omitted from the present research.