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Resolution 2184 (2017)
The functioning of democratic institutions in Azerbaijan
1. The Parliamentary Assembly welcomes
both the readiness expressed by the Azerbaijani authorities to engage
in reform processes in the area of human rights and the rule of
law, and the ongoing dialogue with the authorities in the framework
of the Assembly’s monitoring procedure. However, it insists that
this should lead to concrete results. The Assembly stands ready
to provide support for the reform processes and their implementation
in compliance with European standards.
2. The Assembly reiterates that respect for the principle of
the separation of powers is essential and emphasises the need to
develop the oversight function of the parliament over the executive
in Azerbaijan. The Assembly shares the view of the European Commission
for Democracy through Law (Venice Commission) that recent constitutional
changes could make the executive less accountable to parliament.
3. The Assembly considers that the justice system in Azerbaijan
must be genuinely independent, impartial and free from interference
by the executive. As recommended and acknowledged by the Group of
States against Corruption and the European Commission for the Efficiency
of Justice, the extensive powers granted to the Judicial-Legal Council
in matters related to the appointment, promotion and disciplining
of judges are to be welcomed, but there are still concerns regarding
the Judicial-Legal Council’s composition and the fact that the executive
branch continues to retain prerogatives for key senior appointments.
While noticeable progress has been achieved regarding the appraisal,
training and ethics of prosecutors, the Assembly remains concerned
about the presidential oversight of the Prosecutor’s Office. The
Assembly welcomes the progress in the procedure for the selection
of new judges through which 60% of the sitting judges have been
selected.
4. The Assembly recalls that judicial independence and impartiality
are prerequisites of a criminal justice system that is compliant
with European standards. As underscored by the case law of the European
Court of Human Rights (the Court), the Assembly notes with concern
that much more effective measures have to be taken to strengthen
judicial independence vis-à-vis the executive and the prosecutors.
Shortcomings highlighted by the case law of the European Court of
Human Rights concerning prosecutors’ actions, endorsement by the
courts of the prosecution’s requests, ineffective investigations,
non-respect of the presumption of innocence and inequality of arms
have also not yet been addressed.
5. While welcoming the ongoing reform initiated by the President
of the Republic’s Executive Order on improvement of operation of
the prison system, humanisation of criminal policies and extension
of application of alternative sanctions and non-custodial preventive
measures, the Assembly calls on the authorities to rapidly adopt
and apply the legislation required for its implementation. The Assembly
remains concerned about allegations of excessive use of pretrial
detention, which should be the exception rather than the norm, and about
the absence of alternative sanctions. Changes in practice will primarily
depend on the level of judicial independence and changes in the
way law-enforcement bodies work during investigations.
6. The Assembly is concerned about the reported problem of arbitrary
application of criminal legislation to limit freedom of expression,
as highlighted by the Committee of Ministers in the framework of
its supervision of the judgments of the European Court of Human
Rights. Since 2013, several journalists and bloggers have been arrested
on criminal charges (drug trafficking or hooliganism). There are
groups of so-called “prisoners of Facebook”, young people who go
to prison for criticising the policy of the authorities on Facebook.
7. The Assembly recalls its Resolution 2178 (2017) on the implementation
of judgments of the European Court of Human Rights. It notes that
more than 120 judgments of the Court against Azerbaijan have not
yet or only partially been implemented. The Assembly notes that
little progress has been made with regard to the implementation
of certain groups of judgments, in particular concerning ill-treatment,
violations of the right to a fair trial, freedom of expression and
freedom of assembly and association.
8. The Assembly is concerned about repressive actions against
independent media and advocates of freedom of expression in Azerbaijan.
These actions are detrimental to effective media freedom and freedom
of expression, undermine the safety of journalists and create a
climate of violence against those who express divergent views. The
Assembly is particularly worried about the recent amendments to
the laws on internet regulation and court decisions to block websites,
and recalls the need for protection of fundamental rights in the
digital area. The Assembly deplores the recent legislative changes,
including on criminal charges and prison sentences concerning defamation
on social media, and reiterates its long-standing demand for decriminalisation
of defamation.
9. While welcoming the measures foreseen by the Presidential
Order for the improvement of conditions in detention and the 25%
decrease in the number of pretrial detainees, the Assembly notes
that prison overcrowding remains high and that living conditions
in some prisons are still inadequate.
10. The Assembly takes note of the internal supervision mechanism
of the Ministry of the Interior which has led, over the last five
years, to disciplinary measures against 1 647 police officers, of
which 156 were dismissed from the service, 139 demoted and 1 351
given warnings. The Assembly encourages the authorities to establish
a gender balance also among police officers. It reiterates that
an independent, impartial and effective complaints system for allegations
of ill-treatment by law-enforcement officials is of fundamental
importance for the enhancement of public trust in the law-enforcement
bodies and in the Azerbaijani justice system in general. It stresses
the need to ensure that there is no impunity for misconduct or ill-treatment.
It is of utmost importance that all allegations of torture and ill-treatment
are promptly and thoroughly investigated. In this context, the Assembly
deplores that to date only four of the 10 reports on the visits
of the European Committee for the Prevention of Torture and Inhuman
and Degrading Treatment or Punishment (CPT) to Azerbaijan have been made
public and that there are still six unpublished reports, concerning
the periodic visits in 2011 and 2016 and ad hoc visits in 2004,
2012, 2013 and 2015. At the same time, it welcomes the authorities’
intention to make public the remaining CPT reports.
11. The Assembly is also concerned about the reported mass arrests
of gay and transgender people and allegations of ill-treatment by
the police and calls for independent, effective investigations to
be conducted into the actions of the police; the Assembly takes
note of the release of these persons in the meantime.
12. The Assembly welcomes the law on the Ethics Code for Members
of the National Parliament to prevent corruption, which provides
measures on mandatory disclosure of conflicts of interests by members
of parliament. However, the Assembly notes with great concern reports
linking the Azerbaijani Government to a large-scale money-laundering
scheme in place between 2012 and 2014, and used, inter alia, to influence the work
of members of the Assembly as regards the human rights situation
in Azerbaijan. The Assembly urges the Azerbaijani authorities to
start an independent and impartial inquiry into these allegations
without delay and, furthermore, to co-operate fully with competent
international authorities and bodies on this issue.
13. The legislative environment for the operation of non‑governmental,
non-commercial organisations, including the regulation of matters
relating to their State registration, funding and reporting requirements,
has been restrictive and has been found not to be compliant with
European standards by a number of Council of Europe bodies. The
recent limited regulatory changes regarding grants do not fully
address the legal barriers to the effective functioning and funding
of non-governmental organisations (NGOs). Based on existing legislation
and practice, a number of local and international human rights NGOs
have been prevented from operating, put under pressure and sometimes
placed under investigation. Some of the arrests, detentions and convictions
of Azerbaijani human rights defenders appear to be the result of
shortcomings in the NGO legislation and how it is implemented. In
the light of the above, the Assembly welcomes the Presidential Order on
the establishment of a single-window system for procedure of delivery
of grants by foreign donors in the territory of the Republic of
Azerbaijan, and calls on the authorities to continue to review the
law on non-governmental organisations with a view to addressing
the concerns formulated by the Venice Commission and creating a
better environment for NGOs to carry out their legitimate activities,
including those expressing critical opinions. The Assembly welcomes
the establishment of the Open Government Partnership dialogue platform in
co-operation with the international community to strengthen co-operation,
communication and partnership among State bodies and civil society
organisations and contribute to further expansion of the Open Government
Partnership principles and values in Azerbaijan. The Assembly calls
on the authorities to invite all civil society organisations, NGOs
and political parties to contribute to this platform. Recalling
that NGOs enrich democratic processes, the Assembly calls on the
authorities to facilitate and encourage their work. Open Government
Partnership declared Azerbaijan’s membership inactive for the second
time in May 2016 over the government’s treatment of civil society,
urging Azerbaijan to address fundamental legislative and practical obstacles
to the work of civil society organisations.
14. The Assembly is concerned about allegations of a restrictive
climate for the activities of the extra-parliamentary opposition
and limitations imposed on freedom of assembly. The legislation
and practice governing public assemblies, which lacks foreseeability
and precision, leads to public assemblies allegedly being banned,
including the arbitrary arrest and detention of protesters, which
has a negative effect on the exercise of the right to freedom of
assembly.
15. While welcoming the release – sometimes through presidential
pardon or judicial decisions – in 2016 and 2017 of some so-called
“political prisoners”/“prisoners of conscience”, including the recent
releases of Mehman Aliyev and Faiq Amirli, as well as the conditional
release of 14 persons convicted in the so-called Nardaran case,
which it considers a positive first step, the Assembly remains concerned
about the reported prosecution and ongoing detention of NGO leaders,
human rights defenders, political activists, journalists, bloggers
and lawyers, based on alleged offences in relation to their work.
The Assembly expresses its concern that new arrests following releases
would diminish the positive signals given by the releases.
16. Taking all these concerns and developments into account, the
Assembly calls on the Azerbaijani authorities to:
16.1. put an end to systemic repression
of human rights defenders, the media and those critical of the government,
including politically motivated prosecutions; allow for effective
judicial review of such attempts; and ensure that the overall climate
can become conducive to political pluralism ahead of the forthcoming
elections in October 2018;
16.2. promptly ensure full implementation of the decisions of
the European Court of Human Rights and co-operate more closely with
the Committee of Ministers and the Department for the Execution
of Judgments of the European Court of Human Rights. In this context,
the Assembly takes note that the Committee of Ministers instructed
the Secretariat to prepare a draft interim resolution giving formal
notice to Azerbaijan, as provided for under Article 46.4 of the
European Convention on Human Rights (ETS No. 5), of the Committee
of Ministers’ intention to bring before the Court the question whether
Azerbaijan has failed to fulfil its obligations under Article 46.1
for consideration at their 1298th meeting (25 October 2017), should
no tangible progress be made in ensuring Ilgar Mammadov’s release;
16.3. review the cases of the so-called “political prisoners”/”prisoners
of conscience” detained on criminal charges following trials whose
conformity with human rights standards has been called into question
by the European Court of Human Rights, civil society and the international
community, and use all possible means to release those prisoners
whose detention gives rise to justified doubts and legitimate concerns,
in particular but not exclusively, Ilgar Mammadov, Ilkin Rustamzade,
Mehman Huseynov, Afgan Mukhtarli, Said Dadashbayli, Fuad Gahramanli
and Aziz Orujov;
16.4. with regard to checks and balances, reinforce the application
of the principle of the separation of powers, and in particular
strengthen parliamentary control over the executive;
16.5. with regard to the judiciary:
16.5.1. pursue the
reforms of the judiciary and the prosecution service so as to ensure
full independence of the judiciary, especially from the executive,
in order to restore public confidence in the justice system;
16.5.2. take the necessary measures to resolve the problems revealed
by the judgments of the European Court of Human Rights as regards
the independence, impartiality and fairness of criminal procedures;
16.5.3. refrain from any unjustified application of criminal law
to limit freedom of expression;
16.5.4. ensure that pretrial detention is only imposed as a measure
of last resort and in line with the Council of Europe standards
regarding necessity and proportionality, and favour the application
of less intrusive measures;
16.5.5. ensure also that no pressure is exerted on lawyers defending
NGO representatives, political activists, human rights defenders
and journalists;
16.5.6. set up a juvenile justice system;
16.6. with regard to media freedom and freedom of expression:
16.6.1. create conditions enabling journalists to carry out their
work freely, ensure that no pressure is exerted on them and, in
particular, drop all criminal charges against Mehman Aliyev and
those measures which also have an impact on the functioning of the
Turan news agency;
16.6.2. ensure a genuinely independent and impartial review by
the judiciary of cases involving journalists, fight against repression
of independent journalists and ensure that there is no more prosecution
of independent journalists and bloggers on allegedly trumped-up
charges;
16.6.3. continue to step up efforts towards the decriminalisation
of defamation, in co-operation with the Venice Commission, and in
the meantime remove heavy criminal sanctions, such as custodial
sentences for defamation, from the Criminal Code;
16.7. with regard to freedom of association and political freedom:
16.7.1. further amend the legal framework on the functioning and
financing of civil society organisations in order to bring it into
full compliance with Council of Europe standards, including by repealing
restrictive laws, unfreezing bank accounts of NGOs and their leaders,
and allowing access to independent funding;
16.7.2. ensure that no pressure or repression is exerted on civil
society organisations and their members and create an environment
conducive to NGO activities, removing travel bans affecting NGO
leaders, journalists and political activists, including human rights
lawyer Intigam Aliyev and investigative journalist Khadija Ismayilova;
16.7.3. change the domestic legislation and practice on public
assemblies to comply with the requirements of Article 11 of the
European Convention on Human Rights and investigate the excessive
use of force by the police against peaceful protesters;
16.8. with regard to conditions of detention and allegations
of torture and ill-treatment by law-enforcement officials:
16.8.1. guarantee the publication of all the unpublished CPT reports,
and implement the recommendations contained in those reports;
16.8.2. ensure effective investigation into all reported cases
of alleged violations with a view to bringing the perpetrators to
justice, and take steps to establish an independent, transparent
and effective complaints system for allegations of ill-treatment
by law-enforcement officials.