Functioning of democratic
institutions in Azerbaijan
Resolution 1358 (2004)
Fortsetzung - Part 2
The Assembly cannot envisage closing the current monitoring procedure until Azerbaijan has made substantial progress on the outstanding issues and, notably, before it has proved to be capable of running free and fair elections in line with internationally accepted standards.
Recalling that in Opinion No. 222 (2000) the Assembly considered that the simultaneous accession of Azerbaijan and Armenia could help to establish the climate of trust and détente needed for a peaceful solution to the Nagorno Karabakh conflict, and noting its call on the Azerbaijani and Armenian authorities to continue their dialogue to give new impetus to regional co-operation which could contribute to this climate, the Assembly calls on the Bureau of the Assembly to consider how regional parliamentary dialogue and co-operation involving the speakers of parliaments, that had been established, can be restored and progress as soon as possible.
Meanwhile, the Parliamentary Assembly expects the Azerbaijani authorities to demonstrate clearly their commitment to the principles on which the Council of Europe was founded and the values of a democratic, humanist and tolerant Europe. In this context, the Assembly firmly urges the Azerbaijani authorities to address without delay in particular the issues mentioned in paragraph 9 of the present Resolution.
The Assembly also urges the Azerbaijani Parliamentary Delegation and the entire Parliament to fully support the measures that are necessary to be taken by the authorities in order to comply with the Assembly's recommendations.
If no progress is recorded before June 2004, the Assembly may decide to annul the ratified credentials of the Azerbaijani parliamentary delegation to the Council of Europe, in conformity with Article 12 of Resolution 1115 (1997) and Rule 9 of its Rules of Procedure.
II. Explanatory memorandum by the co-rapporteurs
Table of contents
A. The monitoring procedure
B. The report on the functioning of democratic institutions in Azerbaijan
I. RECENT POLITICAL DEVELOPMENTS
A. Overall situation in Azerbaijan
B. Preparation of elections: absence of consensus of all political forces in the country leading to a political deadlock
C. Observation of Elections: Lack of transparency of the overall electoral process: falsifications, manipulations and violence question the size of the incumbent's victory
D. Post-election events
E. A new era in Azerbaijani politics: changes or continuity?
II. FUNCTIONING OF DEMOCRATIC INSTITUTIONS
A. Separation of power
B. Missed opportunities for the Parliament to mediate in favour of respect of human rights
C. Lack of action of the Ombudsman institution
D. Law enforcement bodies and respect of basic human rights
III. FUNDAMENTAL FREEDOMS:
A. Restrictions to the freedom of expression
B. Freedom of peaceful assembly
C. Freedom of association
D. Development of civil society
IV. OTHER COMMITMENTS AND OBLIGATIONS REMAINING TO BE FULFILLED:
A. Signature and ratification of conventions
B. Public television
D. Law and status of the Constitutional court Legal reforms
E. Other issues
1. Opinion No. 222 (2000) Azerbaijan's application for membership of the Council of Europe
2. Resolution 1305 (2002) on the honouring of obligations and commitments by Azerbaijan
3. List of treaties signed and ratified by Azerbaijan
4. Comments by the Azerbaijani authorities on the preliminary draft report
A. The Monitoring procedure
Azerbaijan joined the Council of Europe on 25 January 2001. The monitoring procedure started immediately afterwards, in accordance with paragraph 17 of Opinion No. 222 (2000) of the Parliamentary Assembly on Azerbaijan's application for membership of the Council of Europe (see Appendix I).
On accession, Azerbaijan accepted the obligations that Article 3 of the Statute imposes on all member states: respect for the principles of pluralist democracy, which includes the conduct of democratic elections and referenda, for the rule of law, and for the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms. It also accepted a series of specific commitments that it agreed to meet within specified deadlines. These are listed in Opinion No. 222 (2000).
In September 2002 the Assembly adopted its first report on honoring obligations and commitments by Azerbaijan (Doc. 9545 rev dated 18 September 2002). In its Resolution 1305(2002) (see Appendix 2), the Assembly called for necessary improvements in particular in the following areas:
- With regard to elections: the Assembly called "to ensure that the 2003 presidential election is held in accordance with international standards" and is conducted in a manner that would not give opportunities for the losing side to contest the legitimacy of the newly elected president;
- With regard to separation of power: the Assembly recommended consolidating the separation of power, to limit the predominant role and sanction the undue interference that the executive power still exercises on other institutions. It called for "the reinforcement of the role of the parliament and the establishment of its independence from and its controlling role vis-ŕ-vis the executive";
- With regard to human rights and fundamental freedoms: the Assembly called "for effective arrangements to protect freedom of expression, of association and peaceful assembly". It also called the authorities to "take all the necessary steps to guarantee freedom of expression and the independence of the media and journalists and particularly to exclude the unacceptable use of administrative measures to restrict the freedom of media". It also strongly called "for the police forces to react in an adequate and proportionate manner when civilians are involved in police interventions";
- With regard to pluralist democracy and development of civil society: the Assembly "urged Azerbaijan to promote confidence and an inclusive climate in politics", called opposition and government to foster efforts in order to "reach a satisfactory level of co-operation and dialogue necessary to the development of a real pluralist democracy". It also urged "the authorities to improve the working modalities and registration procedure of local non-governmental organisations and called for a better and fair administration of requests for public demonstrations".
In 2003 the co-rapporteurs visited Azerbaijan several times in various capacities. They visited Azerbaijan twice (10-13 February and 5-9 May 2003) as members of the Working Group on Political Prisoners; conducted two monitoring visits (20-25 January and 13-17 July 2003) and returned to Baku with the pre-electoral and election observation missions (15-16 September and 13-16 October 2003).
The co-rapporteurs are grateful to the Azerbaijani authorities and to the Azerbaijani delegation to the Parliamentary Assembly for their co-operation. They also wish to thank the Italian Ambassador, Mrs Margherita Costa, the Greek Ambassador, Mr Mercourios B. Karafotias, the Special Representative of the Secretary General of the Council of Europe, Ms Inkeri Aarnio-Lwoff, and the Head of the OSCE office in Baku, Ambassador Peter Burkhard, for their assistance during the visits.
B. The report on the functioning of democratic institutions in Azerbaijan
Resolution 1115 (1997) provides for a monitoring report to be presented to the Assembly at least once every two years. The co-rapporteurs are of the view that recent events in Azerbaijan as well as the new situation arising from the October 2003 presidential election call for this report to be presented to the Assembly to take a stock of the situation.
In the present report the co-rapporteurs have decided to focus on the "Functioning of democratic institutions in Azerbaijan". In 2002, in the first report on honouring obligations and commitments by Azerbaijan, the co-rapporteurs had deliberately underlined the urgent need for progress and improvement in this area, which conditions effective implementation of all other commitments.
Therefore, this report will only address the four above-mentioned issues (paragraph A.3 of this report) as a partial follow up to the September 2002 report and resolution. In addition, they will recapitulate in a final chapter, the remaining and most urgent obligations and commitments undertaken by Azerbaijan upon accession, which still require further action.
I. RECENT POLITICAL DEVELOPMENTS
A. Overall situation in Azerbaijan
In August 2002 a referendum was organised to adopt a number of important amendments to the Constitution. This referendum was purposely not observed by the Council of Europe due to its sudden organisation and the lack of consultation with the relevant authorities of the Council of Europe on the content of the text.
The amendments introduced major changes to the constitutional organisation in Azerbaijan. The transfer of the function of acting President ad interim in case of incapacity of the President from the Speaker of Parliament to the Prime Minister, as well as the election of the President by absolute majority (instead of qualified majority) indicated early signs of the preparation of a power transition.
President Aliyev had been out of the country since the beginning of July and had had serious health problems since April 2003, when he fainted during a ceremony at a military school in Baku and was consequently taken to hospital. On 4 August 2003, Ilham Aliyev was appointed Prime Minister by decree of his father and became President by interim in view of the incapacity of his father.
The co-rapporteurs see in this series of events a logic that indicates a clear strategy in the preparation of the succession, which left very little room for democracy. They recall that the basis of a democratic and pluralistic state is to have the population participating in the selection of their leaders. This strategy was denounced by some observers as an undemocratic attempt to institute family "monarchy" in Azerbaijan.
The co-rapporteurs regret that during this pre-electoral period no information on the health of the head of State was communicated to the nation. The transfer of power was done in the name of the President and could not be witnessed by the public. This would have been very important for the legitimacy of the power transfer.
B. Preparation of elections
Both co-rapporteurs took part in the pre-electoral mission to Azerbaijan from 15-16 September 2003. A memorandum submitted by Andreas Gross, the leader of the Assembly's Delegation, was appended to the Progress Report of the Bureau of the Assembly presented during the September 2003 part-session.
In this report, the co-rapporteurs noted a number of elements that raised concern as to the good and fair preparation of these elections.
This first national election since accession of Azerbaijan to the Council of Europe, was not only of major importance for the future of the country, but was also seen as a crucial test for the development of democracy in the region. The election marked the end of the first decade after independence, as well as the end of Heydar Aliyev's era and regime which had lasted for 34 years. For international institutions like the Council of Europe, the election was an opportunity for the Azerbaijani nation and leadership to confirm their commitment to European values of pluralist democracy and to show that the last 12-year period of transition could lead to the establishment of a democratically-based state and political system. It was also seen as an opportunity for all political factions to demonstrate political maturity and readiness to conduct elections in conformity with Council of Europe and OSCE standards.
Long and exhausting negotiations led to the adoption by the Milli Mejlis of the Electoral Code on 27 May 2003. The co-rapporteurs regret that this late adoption of the code did not follow the recommendations they made in the 2002 first monitoring report on Azerbaijan. Indeed, the rapporteurs had suggested that - in order to avoid confusion and political manipulation of the debates around the electoral code - the code should be adopted and implemented "at least six months before the elections".
Nevertheless the co-rapporteurs wish to underline the constructive co-operation of Azerbaijani authorities with both the Venice Commission of the Council of Europe and the ODHIR-OSCE during the drafting process and finalisation of the code. A Joint Final Assessment of the Electoral Code of the Republic of Azerbaijan by the European Commission for Democracy through Law (Venice Commission, Council of Europe) and the OSCE Office for Democratic Institutions and Human Rights was presented to the Azerbaijani authorities. Notwithstanding the positive introduction of a certain number of recommendations, the Joint Assessment underlined serious shortcomings still to be remedied and listed important recommendations to be further considered by the authorities of Azerbaijan in future legislative reforms.
The composition of election commissions proved to be a controversial and problematic issue. The question of the composition of the Central Election Commission was central for electoral legitimacy if the electoral system and its administration were to be considered fair and legitimate by all political actors. The co-rapporteurs regret that the solution finally adopted could not reach a substantial consensus of all significant political actors and was therefore subject to heavy criticism. As a result the CEC composition heavily favoured the ruling party and its supporters and at local and regional levels the same governing party and its allies had generally a commanding majority.
It is to be regretted that the political climate on the eve of the presidential elections was so bad and marred by many incidents, in particular the arrests of opposition supporters and campaign staff, verbal violence and aggressiveness during the campaign. The co-rapporteurs deplore the lack of constructive dialogue between pro-governmental and opposition factions and the missed opportunity to reach a satisfactory level of co-operation, which could have avoided misunderstandings and frustration on both sides. They consider that the negotiation process and elaboration of the electoral code would have benefited from more confident and open approaches from both sides. They note that an electoral code adopted with no real political consensus and contested by some of the political parties casts a shadow on the credibility and the legitimacy of the overall election process.
The co-rapporteurs were regularly informed - during the year prior to the elections - of the problems arising in the sphere of media. Not only did they notice a heavy media bias in favour of the incumbent and/or his son, but they were informed of a succession of measures which led to the closure of significant opposition newspapers or to the worsening of basic working conditions (printing and distribution problems, pressures on editors, numerous and disproportionate fines for libel …). In addition, a number of journalists admitted that they exercised self-censorship, because of the risk of losing their job in this pre-electoral environment.
Similarly, complaints reached the co-rapporteurs that within public institutions, a campaign was conducted by local management to ensure that most of the employees, students and pupils' parents would vote for the "right candidate" namely the candidate of the ruling majority. In certain cases, it was alleged that heads of institutions were strongly "encouraging" teachers and employees to register with the YAP party. In many cases, people had felt obliged to follow such "recommendations" in order to keep their jobs.
The co-rapporteurs are shocked that in a member state of the Council of Europe, which has been independent for more than ten years, such "soviet type" of practices are still in force. They are worried that this sort of pressure is in fact a strategy to control or influence the voter's intentions.
Being aware of the importance this election bore for the opposition, the co-rapporteurs feel that it has missed the chance to demonstrate political maturity. Even if it is not the co-rapporteur's intention to judge the behavior of the opposition, they note that the personal rivalries among political leaders as well as the lack of political strategy has contributed to the prevailing climate of overall political mistrust in the country. They also regret that several times during the pre-electoral situation, notably when meeting with the pre-electoral mission, the opposition forces, in particular the leader of the Musavat party had openly threatened to call for unrest and social disorder if the election outcome would not meet the opposition's expectations. They also deplore that, even on the day before the election day when asked so by the election mission, the Musavat leader failed to commit himself to try to contain the popular reaction within the limits of peaceful and democratic demonstrations.
Opposition parties denounced the systematic strategy of the pro-governmental factions to discredit and destroy their reputation. It is true that the recent creation of "clones" of opposition parties by pro-governmental supporters can only be seen as an unfair attempt to confuse the voters. The "Muasir Musavat Party" was created a few months before the election as well as the "New Popular Front", a cloned version of the "Classical Popular Front" party. The co-rapporteurs consider that such a provocation can only worsen the political climate and the animosity between opposition parties and the Governmental side.
In conclusion, the co-rapporteurs are seriously concerned that the overall atmosphere was not conducive to a fair and equitable contest for all the candidates. They require immediate attention of the authorities to this matter, because, if the opposition feels it has no constitutional means of influencing the process, an explosive political situation could be the result.
C. Observation of the election: lack of transparency of the overall electoral process, falsifications, violence and popular protests question the scale of Ilham Aliyev's victory
In the 2002 first report on honoring of obligations and commitments by Azerbaijan, the co-rapporteurs clearly announced the crucial importance of the first election to be held following accession of Azerbaijan to the Council of Europe. The 2003 presidential election was to be a practical exercise implementing all reforms initiated since 2001 and was seen as a particularly important indication of the prospects of further democratic transition in Azerbaijan.
In response to an invitation by the Milli Mejlis, the Parliamentary Assembly Bureau decided on 27 May 2003 to set up an ad hoc committee to observe the 15 October 2003 presidential election in Azerbaijan. Initially the committee consisted of 10 members; it was subsequently enlarged to 35 members on 8 September 2003. The ad hoc committee acted as part of the international election observation mission which also included the election observation mission of the Organisation for Co-operation and Security in Europe's Office for Democratic Institutions and Human Rights (OSCE/ ODIHR) and the election observation mission of the OSCE Parliamentary Assembly.
The ad hoc committee met on 1 October 2003 in Strasbourg and then on 13-16 October 2003 in Baku. The co-rapporteur, Mr Martínez-Casań, was elected Chairman of this committee and Mr Daniel Goulet (France, LDR) Rapporteur. The report of the ad hoc committee was presented to the Bureau of the Assembly on 25 November 2003. A post electoral mission composed of Mr Cavasoglu (Turkey, GDE) and Mr A. Gross (Switzerland, SOC) visited Baku (17-19 November 2003) with a view to studying the post electoral situation in the country; they orally reported to Bureau of the Assembly and to the Standing Committee in Maastricht on 25 November 2003.
The report of the ad hoc Committee reflects disappointing conclusions and raise serious doubts as to the existence of a genuine political will to conduct elections in conformity with international standards. An exhaustive final report on this election presented by the OSCE/ODIHR, shows in detail all the discrepancies and deficiencies observed before, during and after the polls. The co-rapporteurs endorse and fully subscribe to the conclusions of the OSCE/ODIHR Election Observation Report and strongly support the recommendations advocated in that document.
They strongly call the Azerbaijani authorities to carefully study and seriously consider the proposals and advice included in the PACE ad hoc committee's report and the OSCE/ODIHR report. They believe that these recommendations are fully in line with the commitment set out in paragraph iii-a of Opinion No. 222 (2000), and consider it their duty to follow up the implementation of repeated suggestions. They hope that for the municipal elections, due to take place in 2004, all necessary measures will be undertaken to secure genuine democratic elections.
In conclusion, the co-rapporteurs deeply regret that notwithstanding the formal commitment of the Azerbaijani leadership to conduct elections that "can be considered as free and fair by international observers" this election failed again to meet international standards. In particular they deplore the lack of transparency of the overall process as well as the poor performance of the election administration, both permitting falsification of election results. They noted serious restrictions and unequal campaigning conditions that obviously advantaged the candidacy of the current president. They consider the recurrent practice of intimidation of voters, election commissioners and political supporters in order to ensure a large victory for the candidate in power to be totally unacceptable.
Having now obtained significant experience and understanding of the situation in Azerbaijan, it is clear for the co-rapporteurs that Ilham Aliyev enjoys a certain degree of popularity and that a large part of the population wanted to expressed its support for a stable transition and therefore voted for the son of the former President. On the other hand, according to official results, Ilham Aliyev was elected with a surprisingly high majority of 76.82% of the votes. The reported deficiencies of the election administration, the numerous cases of elections commissioners denouncing falsification of the poll's results and the scale of the popular protest against the election outcome cast a serious shadow on the size of the incumbent's victory. They also regret that the results in 694 polling stations - representing nearly 20% of the polling stations and 14% of the total number of voters - had to be declared invalid without further investigations or explanation.
D. Post-election events
Security forces maintained a heavy presence around Musavat headquarters since early afternoon on polling day. In the evening supporters of the Musavat party gathered in front of the party's office and this meeting, although not authorized by the authorities, was described as rather peaceful. Shortly after the closing of the poling stations, Musavat supporters announced the victory of the leaders of the party. Some turmoil started and the demonstration was strongly repressed by policemen. Alleging they had to enter the party office to arrest party officials, security forces started to use force against the protesters and violent fights followed.
Once the preliminary final results had been announced on the following day, the Musavat party denounced them as unrealistic and falsified and called for a demonstration in the main square of the capital. During the demonstration, the demonstrators stole a police vehicle and charged against the police forces killing a policeman. In the clashes which followed, several persons, both demonstrators and policemen, were seriously wounded. Several other sources indicated that four person died during the clashes.
Following these events numerous people were arrested including journalists, members of NGOs, party activists and supporters. At the time this report is being drafted, the available information indicates that more than 700 people have been detained and it seems that the wave of arrests is still going on. According to Ministry of Interior data, 86 individuals were sentenced to 3-month detention under preliminary investigation for violation of articles 220.1 and 315.2 of the criminal code and more than 300 persons should be called to account for on their participation in the 15-16 October demonstrations. Such massive arrests occurred in all the regions of Azerbaijan. In some instances, families remained without news of arrested relatives for several days.
It is to be noted that this wave of arrests massively affected the opposition parties. Four "Musavat party" vice-presidents and members of the party political council, journalists, the chief editor and a correspondent in the regions of the "Yeni Musavat" newspaper, the general secretary of the "Azerbaijan Democratic Party", leaders of the "Umid Party", Chairman of the People's Party but also members of the "People's Front Party", "Azerbaijan National Independence Party", "Ahrar Party" are still detained or were sentenced to 3-month detention under preliminary investigation. The co-rapporteurs agree that criminals have to be sanctioned for their crimes. Nevertheless in this particular case they wonder whether this wave of arrests is not closer to a political purge of the country than to a regular action of police.
Well-informed sources reported verified information that while in detention in the Ministry of Interior Department for the Fight Against Organised Crime (MIA-DFAOC), detainees suffered inhuman treatment, were beaten up and tortured in order to extract confessions or denunciations. Other persons detained immediately proceeding the elections complained about unacceptable detention conditions, where detainees were not given food for more than two days, were denied several times access to their lawyers and were subject to physical and psychological pressure to confess untrue crimes. In addition, major procedure irregularities were reported during the trials described - in certain cases - by the lawyers as being unfair. The co-rapporteurs consider it absolutely necessary that the Azerbaijani authorities investigate thoroughly such allegations, and expect the persons responsible of such crimes to be sanctioned accordingly.
A significant number of members of election commissions (and particularly those representing opposition parties) at the local and regional levels have been similarly detained or arrested for refusing to sign flawed and fraudulent protocols. In other cases, heavy pressure was exerted on the commissioners or their relatives, threatened with loss of their jobs or administrative sanctions, in order to bring them to renounce their membership in opposition parties or to sign doubtful elections protocols.
Intimidation and politically motivated dismissals are reported to continue on a large scale all over the country. In a press statement, the OSCE office in Baku, expressed strong concern "about the number of complaints and reports regarding such dismissals, especially of persons working in state owned organisations and enterprises. These cases raise questions as to whether principles of the rule of law have been observed".
Both co-rapporteurs, being members of the Joint Working Group on Political prisoners in Azerbaijan, are deeply shocked by this wave of arrests and appalled by the reported pressures and intimidation attempts, unacceptable condition of detentions and threats exerted to intimidate political parties and human rights activists. They recall that Azerbaijan has not only pledged to solve the cases of currently detained political prisoners, but is also expected to respect Council of Europe's obligations (particularly art 3, 6 and 11 of the European Convention for the protection Human Rights) and to avoid creating new instances of prisoners sentenced or being detained for their political opinion or activities, personal thoughts and beliefs. In this regard, they urge the Azerbaijani authorities to take all necessary measures to make sure that none of the cases under investigation would result in creating new cases of political prisoners.
The co-rapporteurs are seriously worried by a recent series of measures which de facto further restrain and undermine the activities of opposition parties in Azerbaijan. Following a decision issued by the Sebail district court dated 13 November 2003, the "Musavat Party" was requested to leave - within a day - its offices in the centre of the city. The editorial office of the "Yeni Musavat newspaper", located in the same building, was also requested to move out of the premises. In both cases, the reason given for the eviction is that "due to its historical character the premises could not be further rented". On the same day, the Nassimi district court issued a similar decision requesting the "Classical Popular Front Party" to immediately free its office's premises in the centre of the city, when the lease agreement was only due to expire in January 2004. Even if the authorities have pledged to provide these two opposition parties with new office space; in the current political context, these decisions cannot but appear as arbitrary and discriminatory measures towards parties from opposition factions. The co-rapporteurs recommend that the Azerbaijani authorities take all necessary measures to provide these two parties with satisfactory premises in the centre of the city, in order to facilitate a smooth solution of this problem.
The co-rapporteurs are extremely concerned by all these issues and are strongly disappointed by the poor performance of the executive in organising democratic elections and solving problems in a mature and democratic way. Such blatant violations of basic human rights and fundamental freedoms are unacceptable in a member state of the Council of Europe and show that Azerbaijani authorities have no real commitment to European values of pluralist democracy. In the opinion of the co-rapporteurs, such methods and policy are indicating a worrying trend to rule the country as "police state". If this is confirmed, Azerbaijan's membership of the Council of Europe, by definition an assembly of countries sharing the same democratic values, has totally lost its meaning.
E. A new era in Azerbaijani politics: change or continuity?
President Ilham Aliyev's investiture took place on 31 October 2003. Large-scale festivities were organized in Baku.
On 5 and 6 November 2003 the newly elected President issued decrees appointing the new government. Most of the previous ministers and emblematic figures of Heydar Aliyev's era were reconfirmed in their previous positions, (the Minister of Interior, Minister of Defense, Minister of National Security, Minister of Finance, Minister of Taxes, Minister of Labour and Social Protection, Minister of Economic Development, as well as the Head of the Customs Office). The composition of this government surprised a number of international interlocutors who were expecting a change in the ruling team to the benefit of a new generation of politicians and technocrats.
The newly-elected president and his government will face serious challenges. The coming decade will see a number of crucial developments for the country. With the opening of the Baku-Ceyhan pipeline in 2005, the first revenues from oil exploitation will accumulate, creating a new economic and financial environment. This afflux of money will be an important advantage boosting necessary reforms and bringing the whole country to a satisfactory level of development. In this perspective the co-rapporteurs welcome the recent presidential initiative to work on a specific programme aiming at regional development.
There is a real need to reaffirm and put in practice Azerbaijan's commitment to democratic values and principles, and in particular to put an end to the remaining undemocratic habits and practices inherited from the old soviet era which were again observed during the election period. Much is expected from the new leadership in this field. In the opinion of the co-rapporteurs, the new team should continue reforming Azerbaijan in a less centralised and authoritative way. It is understood that such a transition cannot happen in a day and that reformers might face significant resistance from the factions of power interested in preservation of privileges and economic monopolies. Nevertheless it is more urgent than ever to proceed with the reforming of the state and mentalities and in this regard many hope that Ilham Aliyev, as representative of a new generation of leaders in the country and in the region, will prove to be up to the task.
The co-rapporteurs believe the government needs full legitimacy and support from the nation to succeed in this enterprise. Therefore, the new leadership should acknowledge that serious violations occurred during the presidential elections, and recognise the necessity for an independent, thorough and expeditious investigation. Separate investigations should address the issues of election fraud and the repression of post electoral demonstrations and the violence that occurred in the evening of the election day and the day after.
II. FUNCTIONING OF DEMOCRATIC INSTITUTIONS
A. Separation of powers
In their previous report, the co-rapporteurs had - in detail - described the necessary changes to enhance the principle of separation of powers in the current system. To date, none of these recommendations have been seriously addressed. Among other points, they wish to stress once more the inadequacy of the constitutional provisions relating to the separation of powers, insofar as the principle is not applied in practice.
The Parliament has still no possibility of exercising genuine oversight of the government's activities, which means that the public at large is similarly excluded. The co-rapporteurs wish to recall that Parliament must be able to exercise its right to question members of the government and receive precise answers. The right to introduce motions of no confidence would require a reform of the Constitution, and the co-rapporteurs regret that this provision was not included in the Constitution by the 24 August 2002 referendum.
In addition to these remarks on the constitutional framework, the co-rapporteurs wish to comment on the functioning of the Parliament. The co-rapporteurs were shocked by the repeated and blunt demonstrations of support from the members of Parliament to the incumbent president or his father and the rude and slanderous speeches against opposition representatives. Although individual deputies have the right to freely express themselves, they consider that in too many instances the Parliament simply voiced state propaganda which seems inadequate and excessive in this case. They also regret the negative and primitive spirit which dominates the relations between opposition and pro-governmental forces that led, several times this year, to the unacceptable situation of deputies being insulted and assaulted in public.
The co-rapporteurs would like again to stress the important role that Parliament has to play in the elaboration and drafting of legislation. The experience of the drafting of the electoral code showed once more that the presidential administration plays in this process a central and crucial role, taking over in certain cases the parliament's mandate and duties.
Although this issue remains controversial, it seems that the text of the electoral code enacted by the President was different from the one adopted by the Milli Mejlis. Given the importance of the good functioning and independence of the parliament, it would have been preferable that no doubts could be cast on the voting of this text by the Milli Mejlis.
B. Missed opportunities for the Parliament to mediate in favour of respect of human rights
The co-rapporteurs regret that the Parliament does not - generally - play an active role or try to clarify the situation when conflicts arise opposing citizens to the executive power by way of questions to the government and other parliamentary initiatives. Neither in the case of the Nardaran insurrection, nor in the case of post election demonstrations, when in both instances police interventions led to brutal clashes and death of civilians, has Parliament's intervention resulted in concrete action or contributed to the solution of the crisis. The co-rapporteurs hope that the Parliament will address the above-mentioned issues and set up relevant inquiry commissions to shed light on these unfortunate events.
C. Lack of action of the Ombudsman institution
Similarly, they were expecting the Ombudsman institution to play a responsible role as provided by its mandate. According to article 1 of the chapter I of the Law on the Ombudsman "The Ombudsman of the Republic of Azerbaijan shall be an independent institution set up to protect the human rights and freedoms as enshrined in the Constitution of the Republic of Azerbaijan and international agreements which the Azerbaijan Republic is party to, and promote the observance of these rights by the state and municipal bodies and officials as well as the restoration of the violated rights. According to article 1 of the chapter II of same Law, the Ombudsman "shall investigate the complaints lodged by the citizens as to violation of human rights". The co-rapporteurs were disappointed to observe a lack of constructive action of the Ombudsman institution during the above-mentioned crisis. They wish the Ombudsman institution to give priority to actively investigating human rights violations and seek remedies according to the rules and principles of the ECHR. At the time of writing this report, the co-rapporteurs conclude that the Ombudsman institution has still failed to do so.
They hope that in pursuance of Chapter II, article 8.4 of the Law which provides that "complaints may be lodged with the Ombudsman within a period of one year from the date on which an alleged violation of rights and freedoms of the person concerned occurred or he/she became aware of that violation"; action will be further undertaken to redress violated citizen's rights. In particular they strongly recommend that cases of illegal dismissal of citizens should be seriously addressed.
D. Law enforcement bodies and respect of basic human rights
Upon accession to the Council of Europe - three years ago - Azerbaijan pledged "to prosecute members of the law-enforcement bodies who have infringed human rights (particularly the prohibition of torture) in the course of their duties" (Opinion 222 (2000), paragraphs 14.iv.a and c).
In the 2002 report the co-rapporteurs had noted that the Azerbaijani authorities had made some efforts to improve prison conditions, and noted that the Parliament had ratified on 25 December 2001 the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and its protocols and therefore formally fulfilled the commitment undertaken in paragraph 14.i.c of Opinion 222.
Nevertheless cases of torture and ill-treatment in detention are still reported. The co-rapporteurs strongly recall that adoption and ratification of Conventions and protocols do not make sense if they are not respected and applied. The fulfilment of commitments and obligations not only consists of formal undertakings and reforms but has to bring about concrete and positive effects on the country's situation.
In 2003, the co-rapporteurs can only conclude that efforts undertaken in this sphere are far from satisfactory. On the contrary, numerous reports denouncing brutal ill-treatment of prisoners reached the co-rapporteurs and cases of torture in detention centres were verified by international observers.
Such ill-treatment is against basics human rights principles endorsed by Azerbaijan when it signed and ratified the European Convention on protection of Human Rights and additional protocols. Either the State authorities are not in a position to control the misbehaviour of law-enforcement officers, or such infringements are still tolerated in this country. Whatever the reasons, these practices must stop.
They re-iterate their recommendation to develop and multiply training on human rights for law-enforcement bodies and urge the Azerbaijani authorities to take all necessary steps in order to effectively control the conduct of police and avoid repetition of such incidents. It is in their opinion absolutely necessary to investigate all allegations of torture and ill-treatment and to take serious measures to eliminate such practices. In addition, according to the above-mentioned commitment, they expect the persons responsible for ill-treatment to be prosecuted and sanctioned accordingly.
III. FUNDAMENTAL FREEDOMS
A. Restrictions to the freedom of expression
In the year since the publication of the last report in September 2002, the co-rapporteurs observed a seriously worsening trend and new restrictions imposed on the freedom of expression and information. They can only deplore this recent evolution.
The co-rapporteurs and the members of the election observation delegation were seriously disturbed and shocked by the anxiety and fear expressed by citizens during the election. Citizens reported in numerous instances that strong and insidious pressure had been exercised at village or community level to ensure that the majority of residents would vote for the candidate of the governing majority. The citizens' fear has been voluntarily used and exploited by the executive bodies' representatives to make sure the voting process would confirm with expected results. The voters reported that even if this year the ballot voting paper was put in an envelope, they had no trust in voting secrecy.
In other cases, the observers noted that in polling stations cameramen were hired by the Governor's office or the Regional election committee to film the whole voting process and the voters in action. The presence of cameras was definitely badly perceived by the voters, under strong pressure to vote as requested or expected and increased the voter's incredulity in the secrecy of the vote.
The mentalities in Azerbaijan and in particular in the regions remain very traditional and people are usually respectful of authorities. In small village-communities it appears quite easy to influence voters. It is a shame that certain regional authorities organised intimidation campaigns to control as much as possible the voters' intention, using in certain instances unfair, dishonest and illegal methods.
Situation of media
The co-rapporteurs reiterate their disappointment as regards the media situation in Azerbaijan. Not only are the basic principles of freedom of media infringed but the media monitoring of the election campaign showed undeniable bias in favour of the candidates of the majority in power, Ilham Aliyev and his father. The co-rapporteurs deplore the evolution of the media situation in Azerbaijan since their last report. It seems that none of the recommendations included in the 2002 report were taken into consideration and very little undertaken to improve the situation of media in this country. Thus Azerbaijan has failed in the media sphere to fully comply with its obligations and commitments.
In the months leading to the election, major opposition newspapers faced lawsuits as a result of their criticism of government officials and for publishing information on corruption and financial scandals. As a result, shockingly high and disproportionate fines were imposed by the local courts. In some cases, this led to the interruption of publication of newspapers forced into bankruptcy. In addition, due to recent modification of legislation, the drastically reduced financing of newspapers through advertisements has increased the vulnerability of media to financial and political pressures.
Taking into consideration the pre-electoral context and being aware of the problems linked to the independence of the judiciary in Azerbaijan, as well as of the traditional objection to criticism by the leadership, the co-rapporteurs cannot but suspect an obvious effort to silence criticism expressed by opposition media. This was further exacerbated by the systematic harassment and intimidation of journalists, including physical and verbal attacks, detention, various forms of pressure, threats, and editorial interference akin to censorship.
Distribution of the press is a matter of concern too. According to local media, representatives from the executive bodies including the mayor's office have developed tight control on the press available for sale in the kiosks and have taken measures requiring newspapers' salesmen to refuse opposition newspapers.
State but also private printing houses have allegedly been "recommended" not to accept printing orders from opposition newspapers. At the time of writing this report, Azadliq, Yeni Musavat, Baki Xabar, Hurriyyet, Yeni Zaman, and the Russian language paper Novoye Vremya have been refused access to the state-owned printing press and, as a consequence, could not publish regularly their editions since 15 November 2003. Private printing houses approached by the editors of these newspapers were told that due to shortage of paper their request could not be met. The price of paper per ton was raised from 500 USD to 1000 USD in the month after the election and is seen as a deliberate attempt by the authorities to apply pressure on the opposition and independent media.
Television is by far the most important source of news in Azerbaijan where 95% of public opinion is influenced by it. State TV broadcasts nation-wide and is among the most influential media outlets. It is inadmissible that the Azerbaijani authorities have not yet fulfilled their commitment to create an public and independent broadcasting service. The law on public TV, examined in second reading by the Parliament, is still awaiting adoption. The co-rapporteurs deplore the fact that there were no public television broadcasts in Azerbaijan during the campaign, which might have ensured equal and unbiased access to the media for all candidates and probably influence the outcome of the election.
The results of the OSCE/ODIHR TV monitoring during the campaign are appalling. Although State TV complied with legal provisions on allocation of free time for all candidates, Ilham Aliyev - in his capacity of Prime minister - benefited from a large coverage in the analytical and news programmes. In the four weeks preceding the election, Ilham Aliyev received 2 hours and 36 minutes when other candidates received a total of 12 seconds in the same period. Private broadcasters (Lider TV, Space TV, ANS TV and ATV) were also overwhelmingly biased in favour of Ilham Aliyev. Costs of political advertising were significantly high by local standards, which limited the possibilities of parties to buy airtime. In addition, in the last week of the campaign, the State TV, and some private stations, refused to sell airtime to candidate Isa Gambar.
It is to be regretted that during the whole campaign neither the Central election commission nor the National Council on radio and television were able to make sure the provisions of the electoral code were applied as regards equal campaigning conditions for all candidates. Such failure of the system, already observed during previous elections in Azerbaijan in 1998 and 2001, needs to be corrected and controlling mechanisms should be elaborated with a view to future elections, in particular the municipal elections scheduled in 2004.
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