12.01.2004

Protokoll CoE

Functioning of democratic
institutions in Azerbaijan
Resolution 1358 (2004)

Fortsetzung - Part 3

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B. Freedom of peaceful assembly

75.
Obviously the implementation of the principle of freedom of peaceful assembly enshrined in Art. 49 of the Azerbaijani Constitution raises serious concern. In particular during the election campaign numerous complaints reported hindrance to the free exercise of this fundamental right.

76.
The legal framework institutes a legal obligation to request beforehand authorisation to organise street meetings. It has been observed that the granting of such authorisation is administered in certain cases with strong bias. Requests from opposition parties take longer to be decided upon, and the places allocated to them are generally situated in remote areas and cannot not easily be reached by citizens (far from subway stations for example). It is to be noted that political parties never receive positive answers to their request to gather in the centre of the city of Baku. In the regions, local branches of political parties complained they repeatedly face unexplained refusals to their successive requests to hold meetings.

77.
During the campaign too, restrictions to the freedom of assembly and to the right to campaign were imposed on opposition parties. This limited the capacity of opposition candidates to conduct their campaign and limited public participation in meetings (roadblocks, heavy police presence). Local authorities routinely denied permission to opposition parties to congregate in central outdoor locations, leading in certain instances to physical confrontation between police and supporters. Owners of buildings who might have allowed opposition meetings to take place in their premises were under pressure to refuse or cancel these meetings. In many reported cases public sector employees had been instructed to attend pro-governmental meetings while they were discouraged from taking part in opposition ones. Such practices are unacceptable and the authorities should act in order to put an end to such restrictive measures and ensure that no possible form of intimidation is repeated in the course of the next elections.

78.
The co-rapporteurs cannot but deplore such reports of obvious violations of candidates' and citizens' rights. Election is a political contest where all parties should have an equal access to resources and participate in the political debate. It is necessary that politics in Azerbaijan allow political contestation and contradictory or other opinions. While observing the campaign, the co-rapporteurs did not see positive developments in this direction.

79.
The co-rapporteurs have already mentioned that they were shocked by the excessive and unsanctioned repression of the post-election demonstrations by the law enforcement bodies. They wish to remind the Azerbaijani authorities that the fact that opposition parties feel that their requests are treated in an unequal and discriminatory manner does not encourage them to follow the rules. Therefore they recommend easing the procedure for granting authorisation for peaceful meetings. In their opinion and with the good will of opposition parties, such a step would help establishing a peaceful and democratic climate in Azerbaijani politics. Also they take this opportunity to reiterate their strong disagreement with the policy of certain political parties threatening to call for public disorder and unrest during the election period.

C. Freedom of association

80.
In the 2002 monitoring report the co-rapporteurs provided a series of recommendations for the expected improvement of the freedom of association in Azerbaijan. They particularly stressed the need to complete the legal framework (Law on association and public foundations) and to ease the registration procedures. Again this year a large number of complaints on the arbitrariness of the registration process reached the co-rapporteurs. NGOs, associations and foundations are still denied registration without explanation and in most of these cases with no notification, which prevents them from challenging the decision in the courts. Some instances concerned political parties.

81.
The co-rapporteurs have received no information that could enable them to note any progress or state that their recommendations have been taken into consideration at all. Some NGOs, foundations and political parties are still waiting to be formally registered; loopholes in the legal framework prevent fair and equal application of the rules.

82.
In addition, the law prohibits domestic organizations which receive more than 30% of their funding from foreign States' budgets from observing elections. Although the electoral code provides individuals with the right to observe elections, this provision of the law restricts activities of the NGOs, reduces de facto public participation in the observation of elections and therefore undermines its transparency.

83.
Such restrictions on the freedom of association and obstacles to the implementation of the citizen's rights to associate are unacceptable. A proper system of registration of associations and other entities as well as a concrete possibility to exercise the right to associate should be effectively guaranteed, since this is a basic principle in a European democracy, as enshrined in the ECHR.

D. Development of civil society

84.
It goes without saying that, if in a country freedoms of expression, assembly and association face strong restrictions, the development of its civil society is similarly hampered. In Azerbaijan the co-rapporteurs have observed that the working difficulties faced by representatives of civil society have severely undermined their capacity to play their role in Azerbaijani society. Nevertheless their activity is more and more popular and it seems that citizens learn quickly what type of assistance and support they can expect from NGOs. In the last decade, NGOs and actors of the civil society have developed a genuine ability to address human rights issues and the co-rapporteurs would like to take this opportunity to thank all of those representatives who have assisted them in their task. They encourage civil society representatives to continue the positive work they are doing, in particular to develop their presence and activities also in the regions of Azerbaijan.

85.
Today one can say that a civil society exists in Azerbaijan even if it is still immature and if the concept of "civil society" and its role are still relatively unknown by a major part of the population. In addition, individual rivalries often undermine the credibility and effectiveness of the work produced by these NGOs whose forces should unite to work together.

86.
The co-rapporteurs underline that since many NGO activists are also members of political parties, the NGO community sometimes suffers from being considered by public opinion and state authorities as acting on behalf of these political parties, often linked to the opposition. There is an obvious confusion between these two spheres of political and civil society, probably harmful to the strengthening of the role granted to the civil society in Azerbaijan. For this reason the co-rapporteurs believe that the dialogue between the authorities and the representatives of civil society should be de-politicized as much as possible, with both sides showing a constructive approach.

IV. OTHER COMMITMENTS AND OBLIGATIONS REMAINING TO BE FULFILLED

87.
The co-rapporteurs would like to draw attention to additional areas where further action is urgently needed. This open-ended list will serve as a basis for further monitoring by the co-rapporteurs.

A. Signature and ratification of conventions

88.
The co-rapporteurs congratulate the Azerbaijani authorities for honouring some important formal commitments like signature and ratification of European Conventions (39 Conventions and Treaties signed and ratified[15]) and adoption of new laws (Law on Ombudsman, the law on the Bar Association and code of criminal procedure). In particular they welcome the recent ratification of the European Convention on Mutual Assistance in Criminal Matters, the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime in July 2003 and hope to see them applied and respected in Azerbaijan.

89.
But by early December 2003 fourteen signed conventions still awaited ratification including particularly the European Charter for Regional or Minority Languages, the European Social Charter (revised) the Civil Law Convention on Corruption, the Criminal Law Convention on Corruption and the European Convention on the Transfer of Proceedings in Criminal Matters. On 5 January 2004 the co-rapporteurs received information that two conventions on corruption have been ratified on 30 December 2003 and that the Revised Social Charter would be ratified by the parliament on 6 January 2004.

90.
Finally, some important Conventions remain to be signed and ratified including among others the European Outline Convention on Trans-frontier Co-operation between Territorial Communities or Authorities.

91.
The co-rappporteurs recommend the authorities to invest as much efforts and energy to effectively implement the conventions as they do to sign and ratify them.

B. Public broadcasting

92.
Despite the readiness of the relevant department of the Council of Europe to assist the Azerbaijani authorities in this process and notwithstanding the repeated appeals of the co-rapporteurs to fulfil this particular commitment before the 2003 elections, three years have passed and Azerbaijan has still not set up a public television service in line with European standards.

93.
The co-rapporteurs pointed out in this report that the absence of public television in Azerbaijan had seriously shadowed the electoral campaign since the State media failed to provide equal conditions for candidates. This indicates that Azerbaijan is not ready to implement its commitments but also that it maintains a nearly total state control on the television channels and therefore totally undermines the development of independent media in this country.

94.
They urge the Azerbaijani to speedily remedy this shortcoming in close coordination and co-operation with the Council of Europe. The National Council on radio and television should begin its work and the three remaining members of this Council need to be appointed rapidly and "democratically" as requested by the Council of Minister's recommendation 2023 (2000). The co-rapporteurs insist that the composition of this Council must reflect the commitment of Azerbaijan to create an independent public broadcasting service and not another state owned or national channel.

C. Media

95.
Besides the above mentioned calls for improving and guarantying the freedom of expression, freedom of information and the independence and good functioning of the media, the co-rapporteurs would like to remind the Azerbaijani authorities of another matter of concern: the Council of Europe has still not received for appraisal the draft law on Public Information. In addition it is necessary to clarify the status of the Presidential decree on State Secrets dated 24 August 2002 which raised serious concerns. The co-rapporteurs consider that the authorities should elaborate a better definition of circumstances and responsibility for defamation crimes. In addition they recommend that reasonable ceilings should be introduced for defamation fines, based on the current economic situation in the country.

D. Law and status of the Constitutional court

96.
Already in 2002 the co-rapporteurs reminded the authorities of the need to adopt the law on the Statute of the Constitutional Court and further amend accordingly the relevant procedural codes, essential to the proper functioning of this newly created institution. The co-rapporteurs strongly encourage the relevant authorities to expedite this and grant citizens the right to appeal to the Constitutional Court, as decided in the constitutional referendum in August 2002. The rapporteurs note with satisfaction that this law was adopted on 23 December 2003.

E. Other issues

97.
Finally, they recall the need for implementing all commitments made in the following fields: fight against corruption (adoption of the Law on Corruption taking into consideration recommendations of the Council of Europe), strengthening the independence of the legislature vis-à-vis the executive,, implementation - in view of the forthcoming municipal elections - of the recommendations made by the Congress for Local and Regional Authorities in Europe (CLRAE), development of an adequate legal framework for the constitutional provision establishing an alternative military service to be implemented in compliance with European standards.

CONCLUSIONS

98.
The co-rapporteurs quite understand that a country which has known centuries of absolutism and 70 years of communism needs time before it can attain the same degree of democratic standards as other Council of Europe member countries, which have taken a century to do so. They are conscious of certain improvements and progress, but regret they have not reached the desirable standards. The democratic substance of the political culture of a country which has been independent for only 12 years does not necessarily show the same maturity.

99.
As mentioned in Resolution 1305 (2002), honouring of commitments not only implies formal reform of the legal framework but also the respect and effective implementation of the legislation in the daily life of the people. The co-rapporteurs can only observe that Azerbaijan has yet failed to do so.

100.
Over and above the commitments as such, it is Azerbaijan's democratic process that has been seriously vitiated by the massive frauds, irregularities and violence that occurred during the elections. This greatly marred the image of Azerbaijan abroad.

101.
The rapporteurs therefore await substantial progress regarding a number of commitments and expect the authorities to take a more responsible line as to the undertakings accepted. It is indispensable that the new leadership in Azerbaijan takes into consideration the remarks and recommendations provided by the co-rapporteurs in this report and proceed with the necessary arrangements to remedy the observed shortcomings.

102.
In any event, the Monitoring Committee could not envisage closing the current monitoring procedure in particular before parliamentary and presidential elections are democratically and satisfactorily held in the country. Azerbaijan must prove capable of running free and fair elections in line with internationally accepted standards.

103.
The co-rapporteurs therefore urge the Azerbaijani authorities:
- to set up - with the participation of the Council of Europe - the necessary enquiry commissions to bring to light the recent unfortunate events and infringements as mentioned in this report. It is recommended that the results of such investigations be published;
- to release or speedily bring to trial supporters and leaders of opposition political parties detained in the post-election period. All detainees must be granted access to their lawyers and be afforded the right to a fair trial and their sentences should be appropriate. The presumption of innocence should be applied. It is more than necessary that the Azerbaijani authorities take all necessary measures to make sure that none of the cases under investigation result in creating new cases of political prisoners;
- to take the necessary measures to prevent impunity, law-enforcement officials suspected of ill-treatment and torture should be prosecuted and sanctioned accordingly;
- to take measures and legislate in order to put an end to any forms of undue violence, detention, intimidation threats or pressure by public authorities on media representatives and journalists, NGOs, party supporters and leaders or their relatives;
- to ensure that election officials responsible for election frauds and other violations of the electoral code are brought to justice;
- to publish with details and explanations the election results in their entirety, per polling station and to officially acknowledge the serious infringements during the 2003 election process. To take all necessary measures for such dysfunctions and falsifications to be corrected and kept under control for the forthcoming polls;
- to prepare a new civil register with a view to improving the currently deficient voters' lists. The compilation of voters' lists should be transparent and start immediately in order to ensure proper registration of voters for the future municipal elections scheduled in 2004;
- to effectively continue and implement without delay the reform of the judicial system, in order to guarantee full independence and credibility of this institution, taking into account the recommendations made by the Council of Europe;
- to speedily remedy the current deficiencies that hamper the good functioning of the media in Azerbaijan and in particular to take measures to put an end to the current paper shortage in order to ensure that the written press can properly function in Azerbaijan;
- to take into account all recommendations referred to in this report, in particular to fulfil the remaining obligations and commitments specified under chapter IV of the report.

APPENDIX 1
Opinion No. 222
(2000)
Azerbaijan's application for membership of the Council of Europe

APPENDIX 2
Resolution 1305
(2002)
Honouring of obligations and commitments by Azerbaijan



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Andreas Gross