Doc. 8757 revised
27 June 2000
Azerbaijan's application for membership of the Council of Europe
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Georges Clerfayt, Belgium, Liberal, Democratic and Reformers' Group
I. Conclusions of the committee
1. The committee concludes that, in the field of legal affairs and human rights, Azerbaijan has reached the minimum standard required for membership of the Council of Europe, though reform has to be continued.
2. The committee thus favours Azerbaijan's accession to the Council of Europe, on the condition that Azerbaijan enters into the commitments and obligations enumerated in the draft opinion of the Political Affairs Committee, amended as follows:
Add the following paragraph after paragraph 6:
"To its great satisfaction, the Assembly has been informed that Azerbaijan abolished the death penalty in 1998."
In paragraph 13, first sentence, replace "in which they undertake" by "and notes that Azerbaijan undertakes".
Add, at the end of paragraph 13.iii.a, the words "and can be considered as free and fair by international observers."
Add the following words in paragraph 13.iv.a.:
"immediately" after "to sign" and "without witnesses" after "unreserved access".
Add, at the end of paragraph 13.iii.f, the following new sub-paragraph:
"to decriminalise consensual homosexual relationships between adults;"
Add, at the end of paragraph 13.iii.f, the following new sub-paragraph:
"to adopt, within two years of accession, a law on alternative service in compliance with European standards and, in the meantime, to pardon all conscientious objectors sentenced to prison terms or service in disciplinary battalions, allowing them instead to choose (when the law on alternative service has come into force) to perform non-armed military service or alternative civilian service."
Replace paragraph 13.iv.b by the following words:
"to release or to grant a new trial to those prisoners who are regarded as "political prisoners" by human rights protection organisations, especially Mr Iskander Gamidov, Mr Alikram Gumbatov and Mr Raqim Gaziyev."
In paragraph 13 iv. add the following at the end of sub-paragraph d.:
"and to re-examine and amend the law on the media, at the latest within two years of its accession."
In paragraph 13 iv. add the following sub-paragraph:
"- to re-examine and amend, at the latest within one year of its accession, the rules governing registration of associations and the appeal procedures."
Add, before paragraph 14, the following new paragraph:
"The Parliamentary Assembly notes that Azerbaijan shares fully its understanding and interpretation of the commitments entered into as spelt out in paragraph 13 and intends:
- to re-examine and amend the law on the Bar, at the latest within three years of its accession;
- to re-examine the conditions of access to the Constitutional Court and grant access also to the Government, the Prosecutor General, courts at all levels and – in specific cases – to individuals, at the latest within two years of its accession;
- to re-examine and amend the procedures for appointing judges and the duration of their term of office, at the latest within three years of its accession."
II. Explanatory memorandum by Mr Clerfayt, Rapporteur
1. In November 1996 the Committee on Legal Affairs and Human Rights appointed me as rapporteur on Azerbaijan's application for membership of the Council of Europe. I have since visited the country on six occasions.
1.1 A first visit took place with Mr Baumel, rapporteur for the Political Affairs Committee, from 20 to 23 January 1998.
1.2 I accompanied the members of the Sub-Committee on Human Rights, chaired by Mr Jaskiernia, on their visit to Baku on 31 March and 1 April 1998.
1.3 From 14 to 20 June 1998 I participated along with Mr Baumel and Mr Woltjers, then the Political Affairs Committee's rapporteur on Armenia's membership application, in a joint visit to Nagorno-Karabakh, transiting via Baku and Yerevan.
1.4 In October 1998 I was a member of the ad hoc committee of observers for the presidential elections and was therefore present at those elections.
1.5 From 6 to 8 December 1999 I accompanied Mr Ruffy and Mr Baumel, respectively Chairman and rapporteur of the Political Affairs Committee, on a visit to Baku and after their departure, with the assistance of Mr Plate, who heads the secretariat of the Committee on Legal Affairs and Human Rights, had further discussions with the Azerbaijani authorities until midday on 10 December.
1.6 Lastly, I recently went to Baku for two days of discussions and visits, again with the assistance of Mr Plate, on 24 and 25 February 2000.
1.7 In the meantime I also participated in the regional inter-parliamentary co-operation seminar on the Caucasus, held in Tbilissi in September 1999, where I had talks with the members of the Azerbaijani parliamentary delegation, in particular Mr Zakir Zeynalov, Chairman of the Committee on Legal Policy.
1.8 During sessions in Strasbourg I have had several opportunities to discuss Azerbaijan's problems with the members of the special guest delegation, in particular its Chairman Mr Mahmed-Kuliyev.
1.9 On the occasion of committee meetings in Paris, I have held discussions with Mrs Hussinova, Azerbaijan's ambassador to France.
1.10 In Brussels I have held several exchanges of views on developments in Azerbaijan with Mr Mir-Gamza Efendiev, the Azerbaijani ambassador, and while at the embassy had occasion to meet MM Fuad Aleskerov and Shahin Aliyev, members of the President's Office, on one of their visits to the European Commission.
1.11 I have received a large number of reference documents by fax and by e-mail and have exchanged a number of letters with the country's authorities.
2. I wish to thank the Azerbaijani parliament and its Speaker, Mr Murtuz Aleskerov, as well as all the authorities with whom I had meetings - ministers, the Principal Public Prosecutor, the Presidents of the Constitutional Court and the Supreme Court, the head of President Aliyev's Office, etc. - and their assistants for the warm welcome extended to me on each of my visits, the quality of the organisation and the great goodwill they showed in answering my questions and seeking to promote the necessary reforms.
I was also left free to make a number of visits to prisons, where I was allowed to meet certain inmates whom I wished to interview on the basis of information and suggestions received from a number of human rights NGOs.
3. I also wish to express my gratitude to the ambassadors of a number of European countries, in particular Germany and Italy, who arranged meetings with diplomats of Council of Europe member states accredited to Azerbaijan. These contacts were very useful to me.
4. Having participated over the past two years in the visits made by Mr Baumel, the Political Affairs Committee's rapporteur, I refer to his reports, which I deem to be of very high quality and consistent with my own observations in the field.2
This opinion must be read in conjunction with those reports and considered to be complementary thereto as regards certain aspects of the legal issues and those concerning the protection of human rights and fundamental freedoms.
I therefore intend to follow the layout adopted by Mr Baumel in his report, updating and commenting on the information contained therein, item by item.
I shall subsequently make a number of observations on more specific issues which I have had occasion to address.
B. The political situation
- Compliance with democratic standards in the political system
5. It is significant that, despite their often lively criticism of the government and its policy and of the remaining structural weaknesses in the state's organisation, the opposition parties unanimously believe that the best means of strengthening democracy in Azerbaijan and speeding up the reforms would be to allow the country to join the Council of Europe, which they then expect to exert an influence and to offer more large-scale assistance on a permanent basis.
The various political parties and their leaders forcefully expressed this view on each of our visits, and it was reiterated only recently in a joint letter dated 25 March 2000.
6. Having been suspended in 1995 (see paragraph 11 of the Baumel report), the Democratic Party was re-registered at the beginning of February 2000. Several members of parliament, in particular some who stood as independent candidates, have stated that they belong to this party, which ipso facto is now the largest opposition party in parliament. This is naturally a positive step for political pluralism.
7. Today (early April 2000) seats in the Milli Mejlis (parliament) are distributed as follows: New Azerbaijan Party: 69; Azerbaijan Democratic Party: 7; National Independence Party: 5; Popular Front of Azerbaijan: 4; Azerbaijan Democratic Enlightenment Party: 1; Musavat Party: 1; Motherland Party: 1; Citizens' solidarity party: 1; Social Justice Party: 1; Social Welfare Party: 1. 31 members of parliament are independents.
8. We have urged the bureau of parliament and the majority to adopt a more liberal attitude in allowing members of the opposition to exercise their right to call to account and question members of the government in parliament. An improvement along those lines has been promised, subject, inter alia, to a revision of the Rules of Procedure which, as they stand, require the putting of questions to the government to be approved by a majority of the members of parliament!
In view of the legacy of the past, some time is needed for the idea of critical debate on equal terms to gain general acceptance, without the majority's seeking to silence, by every possible means, those who avail themselves of their freedom of speech, which is so necessary and beneficial in a democracy.
The opposition must naturally learn to focus its criticisms on policy's substance, to make constructive proposals and to avoid insulting language, unfounded accusations and excessively personal attacks.
- General elections
9. In view of the shortcomings and frauds noted in polling procedures and election results, in particular in the case of the presidential elections held in autumn 1998, we stressed to all the authorities whom we met that reform of the electoral law reform and of the appointment of the central electoral commission must be expedited, as suggested by the OECD/ODHIR. Action was promised by Easter at the latest. According to my information, the electoral commission will henceforth include three kinds of members: one-third put forward by the majority, one-third by the opposition and one-third appointed by independent bodies - universities, the Bar, and so on. The new legislation should be submitted to the Council of Europe experts for assessment.
10. Training seminars for all public officials and members of the public required to participate in polling procedures and counts should then be organised, to avoid errors reoccurring and alert these participants to the risks of fraud, which is now severely punished under the new Criminal Code.
11. If proof is provided, at the latest at the time of the accession debate, that the commitments entered into in the above matters have been fulfilled, there would ipso facto no longer be any impediment to considering that the requirement of holding normal, lawful elections has been duly met.
A large delegation of observers from the Assembly should naturally visit the country to monitor the general elections in November 2000.
- Local elections
12. Several opposition parties complained of difficulties in having their candidates registered for the first local elections, held on 10 December 1999, and others were obliged to boycott the poll; at the same time a number of frauds and irregularities occurred. The central electoral commission moreover acknowledged these and deemed that the election results must be cancelled in 76 cases. New elections were held on 26 March 2000.
The delegation of observers from the Congress of Local and Regional Authorities of Europe (CLRAE), which had severely criticised the December elections, returned to Azerbaijan and issued the following statement:
"The CLRAE notes a significant improvement in the voting and counting procedures … and commends the responsible authorities.
Nevertheless, some irregularities have been observed, relating to technical and other more specific aspects. Referring to the latter, the delegation noted some problems (concerning in particular the Narimanov district) relating to the issue of signatures on the voters lists. More particularly, in some polling stations signatures seemed to have been added to the voters lists by non authorised people.
The delegation is convinced that the holding of local elections represents an important step towards the establishment of a democratic system in the Republic of Azerbaijan."
C. The Nagorno-Karabakh question
13. As rapporteur for the Committee on Legal Affairs and Human Rights, I have nothing to add to what Mr Baumel has to say in his report.
14. I would nonetheless point out that, following talks between the two countries' Presidents, a limited number of prisoners of war have already been released on both sides.
15. It goes without saying that a peace agreement, if reached, would allow hundreds of thousands of Azerbaijanis forced to flee the territories occupied by the military forces beyond the Nagorno-Karabakh border to leave the camps, where they are presently eking out a very basic existence, or the precarious refuges which they have found in the towns and cities and return home. This would constitute incontrovertible progress from the humanitarian and human rights point of view.
Moreover, a peace settlement between the two countries would certainly permit improved economic development and the resumption of foreign investments, which ultimately have a beneficial effect on the local population's wellbeing.
16. It is to be hoped that, on this issue, the opposition parties will show restraint, a sense of responsibility and an understanding of the principles of the Council of Europe, which bar the use of force as a means of settling disputes.
D. The rule of law
- Setting up the legal system
17. Over the past three years parliament has done a great deal of outstanding work in the legislative field. A considerable number of new laws has been passed within this relatively short period, in particular under the impetus of Mr Zakir Zeynalov, Chairman of the Committee on Legal Policy.
Among this mass of legislation attention can be drawn to the laws on the courts and the judiciary, the Public Prosecutor's Office, the police, the Bar, notaries, the media, and so on, as well as to the Civil Code, the Code of Civil Procedure, the Code of Family Law, the new Criminal Code, etc.
The first part (general principles) of a new Code of Criminal Procedure passed its second reading at the end of December 1999, whereas the second part containing provisions on detention on remand, in particular, is currently being reviewed by the Council of Europe experts. The second part should be put to the vote, and the first part undergo its last reading, by the end of April.
Parliament will shortly be examining and voting on bills on the status of MPs, political parties, civil servants, etc.
18. Clearly, from a legislative standpoint Azerbaijan has, at the cost of a considerable effort, accomplished the required reforms. I basically concur with Mr Baumel's opinion that "the statutory foundations for the rule of law are in place in Azerbaijan."
- Application of the law - The courts
19. The new law on the courts and the judiciary is not yet fully applicable, as the procedure for recruiting new judges according to objective criteria has still to be completed. This is expected to be the case by 1 June 2000.
20. By the same date judges should also be awarded a substantial increase in salary.
This schedule must be adhered to, as it conditions the emergence of a legal system that will at last satisfy most of the requirements for the independence of the judiciary in a democratic state.
21. It will remain for the Azerbaijani authorities to review the procedure for appointing judges and extend their term of office, in preparation for a transition to lifetime appointments, a reform which must take place sooner or later in the next few years.
- The Public Prosecutor's Office
22. The new law on the Public Prosecutor's Office, which was passed at the beginning of December 1999, has come into force. Prosecutors' tasks and powers are now consistent with the standards applicable in European democracies. The Principal Public Prosecutor is responsible for ensuring proper application of the law and compliance with all the new provisions guaranteeing improved protection of human rights, in particular the right to be presumed innocent until proved guilty, the right to a fair trial and the ban on use of torture by investigators and the police.
23. Charges must be brought against police officers who, in the course of their duties, take liberties resulting in human rights abuses, in particular breaches of the bans on torture, brutality, ill treatment, arbitrary arrest and searches without a warrant, or are negligent or passive in protecting property and persons, for instance during demonstrations or other mass events.
- The Bar
24. The law on the Bar was passed at the end of December and came into force on 27 January 2000. It replaces an earlier law dating from 1980. Under the Constitution anyone accused of a criminal offence is entitled to legal aid and to the assistance of counsel of his or her choice immediately on being detained or arrested.
25. The first version of the relevant bill required candidates for appointment to the Bar to seek a licence from the ministry of justice before lodging their application. Having been criticised on various sides, this provision was deleted from the law finally passed. The former Article 158 of the Criminal Code, making it an offence to practise the law without a licence, became void ipso facto.
26. The Bar has set up a nine-member admissions board, responsible for ascertaining applicants' suitability and knowledge. The Bar is now fully independent and freely elects its bureau and Chair by secret ballot for a three-year term. Some NGOs consider that these reforms have brought the profession into line with European standards. Others continue to voice a number of criticisms.
The same can be said of certain lawyers who experienced problems with the Bar in the past. Time will tell how the Bar and the legal profession evolve in practice.
27. It nonetheless seems to be generally acknowledged that the reforms are a definite progress along the road to the profession's independence.
Over the past few months the authorities can be seen to have shown far greater regard for lawyers' rights to communicate freely with their clients and to avail themselves of all the legal procedures available when defending clients.
E. Respect for human rights and fundamental freedoms
- Political prisoners
28. Despite the authorities' refusal to accept the use of the term "political prisoner" in respect of persons whom they regard as ordinary criminals, a number of NGOs consider that tens of prisoners (some even talk of hundreds) qualify as political prisoners either because they were convicted and sentenced for their role in an attempted coup d'état or because they are opposition party activists or members, or simply relatives of opponents to the regime, arrested and found guilty of a variety of offences.
29. Having received information from NGOs on a number of individual cases, pointing out that these people's convictions were unjust, that they had confessed under torture and that the sentences passed were clearly unreasonable, I voiced certain justifiable concerns about the fate of these prisoners to the authorities.
I was permitted to interview some of them at the time of my visit with the Sub-Committee on Human Rights, in late March - early April 1998, or during subsequent trips to Azerbaijan.
I have concerned myself, in particular, with the fate of the following prisoners, most of whom I have met:
• Hajimurad Sadaddinov, who was given a sixteen-year prison sentence in December 1996. He was found guilty on the strength of evidence given by a general for whom he had served as chauffeur and the testimonies of his co-defendants. However, at the hearing the latter all stated that these accusations had been extracted under torture and that they wished to retract them. A number of Azerbaijani NGOs are currently campaigning for Mr Sadaddinov's release.
• Iskander Gamidov, the former interior minister, who was sentenced to fourteen years in prison in September 1995 on counts of corruption and abuse of authority and whose state of health is a cause for concern.
• Alikram Gumbatov, condemned to death for treason. He is in fact held to blame for the attempted secession of a territory located on the border with Iran, inhabited by the Talesh minority. His wife and two children are living in the Netherlands, where they have been granted asylum. The prisoner's health is a cause for concern, but he was recently transferred to a specialist hospital for examination and treatment.
• Raqim Gaziyev, defence minister at the time of the Nagorno-Karabakh war, who was condemned to death in absentia for corruption, abuse of authority and treason. He is seeking a retrial, at which he hopes to be able to prove his innocence.
• Kenan Gürel, an Austrian national, who is in a poor state of health. His father recently died of lung cancer in Austria, without father and son having been able to see each other. This would have warranted his release on purely humanitarian grounds.
30. It would be possible to cite many other cases of "political" prisoners, and the names I have mentioned are given merely as examples. Such prisoners have rarely been pardoned, released or allowed a retrial. One of the few to have been pardoned is Mr Abdullayev Muzamill, a former minister released on health grounds.
Often members of these prisoners' families have also been prosecuted. Some of these relatives are likewise in prison. This substantiates the suspicions that their convictions are political in nature.
31. After my last visit I had hopes that a number of prisoners would be granted an amnesty or a presidential pardon. A national reconciliation at the time of Azerbaijan's accession to the Council of Europe might provide a valid reason for such decisions.
The authorities have promised to review many of the cases and have hinted that the Board of Pardon may grant amnesties or order the prisoners' release.
Decisions along those lines have moreover already been taken in the past 24 months. The President has granted mass amnesties on five occasions, concerning a total of 47,163 prisoners, most recently on 10 December 1999 to mark the 50th anniversary of the Council of Europe.
32. Although they naturally take a positive view of these amnesties, the NGOs have nonetheless warned against the unwarranted pardoning of police officers convicted of employing torture in the performance of their duties. This category of prisoner should of course not be taken into consideration when granting pardons.
- Conditions of detention
33. Officially, all prisons come under the responsibility of the ministry of justice, including remand prisons since December 1999.
34. Considerable progress has been made as regards conditions of detention (accommodation, food, medicals, visits by lawyers and relatives, the right to make phone calls, the right to receive parcels and correspondence, etc.). I have noted a marked difference in the space of two years, and most of the NGOs acknowledge this improvement. Inmates with a record of good conduct even have access to hostels inside the camps, where they can spend three days a year in private with their wife and children.
35. A number of national and international NGOs have been authorised to visit the prisons. However, incomprehensibly, the authorities had until recently refused to sign the standard agreement with the ICRC giving Red Cross delegates unrestricted, unconditional access to inmates.
Apparently, since 10 March 2000, as a result of direct action by President Aliyev, who signed a decree to this end, the difficulties should at last be smoothing themselves out, and the text of the agreement should be signed in the near future.
- Torture and ill treatment
36. The authorities have been urged to heed the recommendations made on 17 November 1999 by the United Nations Committee against Torture, which noted serious grounds for concern and listed a number of urgent reforms. I have also requested them not to disregard the recent reports (1999) by Human Rights Watch and Amnesty International mentioning many breaches of human rights, including individual cases of torture and ill treatment.
37. Under another decree dated 10 March 2000 President Aliyev established a high-level working party to look into the above problems, take steps to solve them and prevent their re-occurrence.
The working party has also been instructed to draft replies to the above-mentioned NGOs, supplying information on measures taken in respect of the specific cases they have raised.
38. I drew the authorities' attention to the case-law of the European Court of Human Rights, whereby confessions extracted under torture have no legal value and the fact that such confessions have been relied on could constitute a ground for retrial in certain cases. In any case, this type of behaviour by police officers and investigators must be stopped, and those guilty of torture and ill treatment must be prosecuted pursuant to Article 129 of the new Criminal Code.
39. Article 129 of the new Criminal Code, which was passed at the end of December 1999, bans acts of torture and makes the perpetrators liable to up to ten years' imprisonment. A definition of torture, in line with that contained in the UN Convention against Torture, has been adopted. Section 5 of the new Law on the Police also makes torture and ill treatment a criminal offence.
40. The Azerbaijani authorities' determination to take the necessary steps to redress the country's negative image as regards torture and ill treatment by the police is manifest and should be hailed as a positive step.
- Freedom of expression
41. After censorship was abolished in the summer of 1998 there was an outbreak of proceedings against journalists, editors and publishers, who were required to answer civil claims for damages or even criminal charges. Some were ordered to pay extremely high compensation or fines, which all but ruined them and reduced them to silence. A number of NGOs protested. Since the end of 1999 a decline in such practices has been noted. Journalists naturally cannot write whatever they wish without having to face the consequences, but it is also for an independent judiciary to defend freedom of expression without taking an over-severe attitude.
Furthermore, although it is true that in recent years many instances of arbitrary arrests and beatings of journalists by the police had been reported, the number of such cases would seem to have fallen significantly in recent months.
42. Outside election periods pluralist political opinion is virtually absent from the national television channel. Domestic news reports are too often devoted to lauding the actions of the President and the government. It would be desirable to broadcast political debates with equal participation of spokespersons for different parties or tendencies, at least from time to time.
43. Since independent television broadcasts are fairly limited, it is regrettable that the SARA television station was closed down - into the bargain suddenly and without any court order - in October 1999. The authorities advance a number of more or less plausible reasons for this.
44. Two cases are apparently pending before the courts. One concerns an appeal by SARA against the station's closure and the other an application from the Minister for Justice seeking confirmation of the decision to close the station. I do not know the outcome of these proceedings.
45. We have been told that it is very difficult to set up a private television station because of the administrative formalities and bureaucratic complications. The company must first be registered with the justice ministry. Then the state television company must be permitted to inspect the installations of the private channel seeking a broadcasting licence(!). Then an application must be made to a specialist commission, and goodness knows what ministry, to obtain a frequency. Lastly, a licence must be sought from the ministry of press and information. The conditions to be fulfilled at various points in this obstacle course are unclear. There is a need for simplification and clarification.
46. Whatever the case may be, the re-opening of SARA on fulfilment of the necessary formalities and in exchange for guarantees, and the possible opening of other independent stations, is desirable in future to ensure greater pluralism in the coverage of domestic news and political opinions.
47. The new law on the media, which came into force at the beginning of February 2000 and of which I have been unable to obtain an English version, has been criticised by a number of international organisations concerned with defending the freedom of the press. This law should be subjected to a critical review in the near future and will probably need to be amended.
- Freedom of association
48. The Ministry of Justice, which had been finicky about registering certain associations, seems to have adopted a more flexible, liberal attitude since the beginning of the year 2000. A number of NGOs, which had long been meeting with refusals, have at last been approved.
These include, in particular, the Azerbaijan Centre for Human Rights, the Committee for Democracy and Human Rights and a local branch of the Jehovah's Witnesses.
The Azerbaijani Bar association, the press association and the League for the Protection of Workers' and Citizens' Rights have also been registered.
49. A democratic, pluralist society, founded on freedom of association and of expression, cannot go hand in hand with arbitrary restrictions, but it is taking time for these new principles to become habit and gain general acceptance. It cannot be ruled out that the law on registration of associations may need to be amended and clarified, so as to introduce objective, neutral criteria and a system of appeal against the ministry's decisions.
50. With continuing goodwill, similar to that shown at the beginning of the year regarding the recent problem cases, full freedom of association should soon be guaranteed.
- Freedom of religion
51. Although the situation is generally highly satisfactory, one or two problems have been reported, for instance last year by representatives of the Jehovah's Witnesses and more recently by the Baptist Union and a Protestant Church. I am certain that such cases will remain exceptional and that a solution will rapidly be found.
52. We were also informed of a delicate administrative problem concerning Muslim women who were unable and unwilling to be photographed bareheaded and were therefore finding it difficult, in view of the administrative rules in force - which were perhaps too strictly interpreted, to have their passports renewed. They were thus deprived of their right to freedom of movement and travel.
This type of problem could be solved with a little flexibility on the side of the administrative authorities.
Failing this, the problem could be brought before the Court of Human Rights after Azerbaijan's accession.
- Minority rights
53. The official spokespersons whom we met appeared highly satisfied with the way the minorities to which they belonged were treated, especially in cultural matters, thanks to the President's determination. However, some NGOs informed us that the police and certain managers of blocks of flats sometimes discriminated against people of Russian, Armenian and, occasionally, Lezghi origin. Victims are afraid of complaining, and the few official complaints lodged so far have often not been acted on.
Such illogical and clearly reprehensible attitudes and behaviour are unfortunately to be found in other countries of Europe. Discrimination must be combated everywhere, and the most blatant cases brought before the courts. This is an ongoing, never-ending battle. When the reform of the judiciary is completed, it is to be hoped that the new judges will prove more vigilant with regard to such problems and thus foster a citizenship culture where people are not afraid to stand up for their rights in court.
F. Questions not addressed in Mr Baumel's report
54. A number of people whom we met, primarily civil society representatives, asserted that corruption was widespread and that the courts were no exception to the rule.
Bribes often had to be paid to secure a successful outcome in civil proceedings or avoid being charged with a criminal offence.
I nevertheless have reason to believe that not all of Azerbaijan's judges, even with the poor pay they still receive at present, are corrupt. Some do their job conscientiously, abiding by and upholding the law.
55. The full implementation of the law on the judiciary as from 1 June 2000, once the procedure to recruit new judges has been completed, should significantly reduce the number of cases of corruption.
56. Like many other countries in the post-Communist era Azerbaijan is undergoing a transition to a market economy, and State-owned companies are frequently privatised. Given the considerable interests at stake, irregularities and corruption have occurred, at least in some cases.
Unfortunately, among the companies that show no hesitation in paying the bribes demanded by local public officials to facilitate solutions to administrative problems are some of foreign (American or European) origin.
57. The rules on privatisation of State property specify that staff or tenants, as applicable, shall have a right of pre-emption in the event of privatisation, but this provision is often flouted.
I was told the story of the twenty employees of a bookshop, who were dismissed just before it was privatised. Once the shop had passed into private hands, the same employees were taken on again, but in the meantime they had been prevented from asserting their rights.
I have also been informed of the complicated manoeuvres used to deprive staff of their rights when the central bus station in Baku was privatised.
In future the Public Prosecutor's Office and the courts should also pay greater attention to such breaches of the law.
- Right of ownership and right to a home
58. In some instances the right of ownership and/or right to a home do not appear to be absolute. I have been told of cases of unlawful expropriations or expulsions by managers of blocks of flats, especially where the owner or tenant has been arrested or is in trouble with the police. Their families end up on the street and homeless. Such misfortunes would appear to strike members of national minorities in particular.
In the rare cases where people have dared to complain to the courts, action has not always been taken. Here too the answer is the establishment of an independent judiciary.
On 12 March 1999 the Constitutional Court delivered a judgment concerning Article 60 of the Housing Code. Its widespread application could offer a solution in some instances, but not in all cases of unlawful expropriation.
- Prohibition of discrimination on grounds of sexual orientation
59. As part of the reform of the Criminal Code, Article 113, which laid down serious penalties for homosexuals, has been repealed.
This does not mean, however, that homosexuals are now safe from all forms of discrimination, in particular as practised by the police or administrative authorities.
In this field, as in others, a change of attitude is needed.
- Gender equality
60. On 6 March President Aliyev signed a decree on implementation of a policy for women in Azerbaijan, whereby he expressed his determination to ensure equal representation of women and men at managerial level in all state institutions and to review the legislation in force and propose amendments with a view to enhancing protection of women's rights.
- The law on NGOs
61. Revision of the law on NGOs is still before parliament.
It is desirable that human rights NGOs should be consulted with a view to taking on board any relevant suggestions on which they are in agreement.
- Distribution of information about the Council of Europe
62. On 18 March 2000 President Aliyev signed a decree intended to guarantee widespread distribution of information about the activities of the Council of Europe and Azerbaijan's co-operation with the organisation.
In particular, there are plans to organise radio and television broadcasts, to set up an information centre at Baku University, bringing together documentation on the European conventions and agreements, the Parliamentary Assembly, the Committee of Ministers and the European Court of Human Rights, and to equip the national libraries and schools and universities with "human rights information points", where all relevant documents can be found.
G. Conclusions and recommendations
63. No-one can reasonably assert that today's Azerbaijan already qualifies as a state governed by the rule of law and a fault-free pluralist democracy showing perfect regard for human rights.
However, I am convinced that Azerbaijan compares favourably with its Transcaucasian neighbours and with other member states which recently joined the Council of Europe.
64. What is more, over two years I have seen the country make considerable progress in bringing its legislation and administrative practices into line with European and democratic standards.
65. Although it is true that much of the new legislation is not yet fully applied by the courts and the authorities and that arbitrariness and failure to comply with the rule of law can still be observed at some times and in some places, an apparently irreversible trend has been initiated and brings new positive results month by month.
There is a definite momentum, and the authorities are unquestionably determined to pursue and enforce the reforms. This can also be said of the opposition and, it would seem, society as a whole. Azerbaijan's efforts should be encouraged, supported and supervised, and its accession can be justified on this ground.
66. Azerbaijan must rapidly take practical steps to honour some recent commitments (such as the electoral reform, effective action against torture, greater freedom of the media, the release of certain prisoners and the appointment of new judges by 1 June).
But if this is the case, I would willingly concur with the views of my fellow Assembly member, Mr Baumel, and his proposal that Azerbaijan be invited to join the Council of Europe in the very near future.
67. New commitments and a time-table for their fulfilment over the next few years Must of course be imposed and set out, as the Political Affairs Committee has done in its draft opinion.
The Committee on Legal Affairs and Human Rights decided to add the following to the list:
- re-examination and if appropriate amendment of the law on the Bar, at the latest within three years of accession;
- re-examination and if appropriate broadening of the conditions of access to the Constitutional Court, at the latest within two years of accession;
- re-examination and if appropriate amendment of the procedures for appointing judges and the duration of their term of office, at the latest within three years of accession;
- re-examination and if appropriate amendment of the law on the media, at the latest within two years of accession;
- re-examination and if appropriate amendment of the rules governing registration of associations and the appeal procedures, at the latest within one year of accession.
Reporting committee: Political Affairs Committee
Committee for opinion: Committee on Legal Affairs and Human Rights
Reference to committee: Doc 7646 and Reference No 2107 of 27 September 1996
Opinion approved by the committee on 27 June 2000
Secretaries to the committee: Mr Plate, Ms Coin and Ms Kleinsorge
1 See Doc 8748 of the Political Affairs Committee.
2 See Doc. 8748, report by the Political Affairs Committee