1. Introduction
1. On 15 October 2008, Azerbaijan
will be holding its second presidential elections since its accession
to the Council of Europe in 2001. Regrettably, all previous ballots
held since have failed to meet democratic standards.
2. This failure led to the challenging of the credentials of
the Azerbaijani delegation at the opening of the Assembly’s January
2006 part-session. In its
Resolution
1480 (2006), the Assembly finally ratified the credentials of the
delegation of Azerbaijan and in its
Resolution 1505 (2006) of June 2006 instructed the Monitoring Committee to
follow closely the developments in the country and to report back
to the Assembly.
3. When adopting its
Resolution
1545 (2007) on the honouring of obligations and commitments by Azerbaijan
in April 2007, the Assembly considered the co-operation between
the Council of Europe and Azerbaijan essential for the development
of democracy and the respect for the rule of law and human rights
in the country and supported the continuation of this co-operation
for the purpose of preparing the 2008 presidential elections.
4. Furthermore, in its
Resolution
1457 (2005) on the follow-up to
Resolution 1359 (2004) on political prisoners in Azerbaijan, the Assembly concluded
that “it [could] not consider the issue of political prisoners to have
been finally resolved” and asked the Azerbaijani authorities to
take a number of measures in order to find “a speedy and permanent
solution to the issue of political prisoners and presumed political
prisoners”. The Assembly also welcomed the setting up of a task
force comprising representatives of the authorities and of human
rights NGOs for the purpose of “adopting a single position and approach
to the issue of meeting the commitment and eliminating the problem”.
They had agreed to work on the basis of two lists referred to in
Resolution 1457 (2005).
5. In December 2007, a motion for a resolution on the follow-up
to the issue of political prisoners in Azerbaijan
was tabled, regretting the lack
of concrete follow-up given to the Assembly’s recommendations and the
absence of results in this matter. The motion stressed the present
need for a special rapporteur to be appointed, from the Committee
on Legal Affairs and Human Rights, with a specific mandate to follow-up
the work of previous special rapporteur, Mr Malcom Bruce, on the
issue of political prisoners in Azerbaijan
and ensure
that proper follow-up be given to
Resolutions 1457 (2005) and 1545 (2007). On 13 March 2008, the Bureau decided
to postpone its decision on the reference of the motion until June
2008.
6. On 18 March 2008, the Monitoring Committee decided to report
to the Assembly, in June 2008, in an interim report on the current
state of the functioning of democratic institutions in Azerbaijan,
including the follow-up given to the issue of political prisoners.
7. Following the departure of Mr Tony Lloyd from the Assembly,
Mrs Eugenia Jivkova was appointed as corapporteur on the honouring
of obligations and commitments by Azerbaijan on 9 November 2007.
It is against this background that we visited Baku twice in 2008,
from 4 to 7 February and from 18 to 20 May. We wish to thank the
Azerbaijani Parliament and in particular the chairman of the delegation
to the Parliamentary Assembly, Mr Samad Seyidov, and his secretariat,
for their excellent organisation of the visits, which enabled us
to hold very frank discussions with the authorities at the highest
level.
We
would also like to thank Mr Fikrat Mammadov, Minister of Justice,
for his support and assistance in the organisation of the visits
to prisons of a number of prisoners mentioned in
Resolution 1545 (2007) or convicted after its adoption.
8. We are also grateful to Mr Denis Bribosia, Special Representative
of the Secretary General of the Council of Europe in Azerbaijan,
and his staff in the Baku office, for their precious assistance
in the organisation of meetings with representatives of the civil
society, political parties and with representatives of the media
and of international organisations.
2. Economic and international context
9. The country’s massive oil revenues
have led to a growing self-confidence in Azerbaijan’s foreign policy. Export
of oil and gas has strengthened the economic position of the country
and led to a 25% gross domestic product growth in 2007. The US$4
billion Baku-Tbilisi-Ceyhan (BTC) pipeline – which pumps Caspian
Sea oil to the Turkish Mediterranean, bypassing the Russian Federation
and Iran – should supply 1 million barrels per day by 2009. One
of the pipeline’s main beneficiaries is Azerbaijan.
10. Moreover, at the GUAM Organization for Democracy and Economic
Development Heads of State Summit, hosted in Baku on 18 and 19 June
2007,
and at the G8 Summit in Heiligendamm
(Germany), in June 2007, President Putin proposed using the radar
site of Qabala (300 km north of Baku) for a European missile defence
system as a counter proposal to the plan of President George W.
Bush to base the system elsewhere in Europe. The Qabala radar station
was built in 1987 and is currently rented to the Russian Federation.
11. At the same time, there is a widespread public perception
of corruption throughout all facets of society, including the civil
service, government ministries and officials at the highest level,
which could jeopardise the development of the country.
12. The government tries to apply a balanced foreign policy between
the Russian Federation, Iran and the West. Political life in Azerbaijan
is largely influenced by neighbouring and international politics
and, in 2008, events such as the unilateral declaration of independence
of Kosovo, the presidential elections in Armenia and the ensuing
events, or the Turkish military operations in Iraq and the 21 May
parliamentary elections in Georgia.
13. The Nagorno-Karabakh conflict continuously dominates the political
agenda of the country. In the first week of March 2008, heavy gunfire
broke out on the front line which led to several casualties. According
to governmental sources, five Azerbaijani soldiers and two civilians
were killed in and around the area while several civilians and soldiers
were injured. Heavy casualties on the Armenian side were also reported.
14. Today, the Azerbaijani authorities are facing a major challenge
as they try to transform important dividends of the oil business
into the sustainable development of society.
15. Nevertheless, Azerbaijan clearly opted for European standards
in terms of democracy, the rule of law and human rights when it
joined the Council of Europe seven years ago.
16. Regrettably, throughout 2007 and early 2008, Azerbaijan has
been pointed out by several organisations for its poor human rights
record.
Restrictions
to the freedom of expression, harassment of media representatives,
limitations of the freedom of assembly, the lack of followup to
the issue of alleged political prisoners and the humanitarian concerns
raised by several cases, the dysfunctioning of the judiciary system and
the conditions of detention are issues of great concern to the co-rapporteurs.
17. All these concerns have their origin in the dysfunctioning
of the democratic institutions in the country. The October 2008
presidential elections will be a major test for the Azerbaijani
authorities to prove their will to transform the country into a
genuine democracy respectful of the rule of law and human rights.
Azerbaijan cannot afford to fall short in meeting Council of Europe
commitments and standards for democratic elections again.
3. Electoral
reform and preparation of the October 2008 presidential election
18. One of the basic requirements
for a democracy to function is the holding of free and fair elections.
Upon its accession to the Council of Europe, Azerbaijan undertook
the commitment to “revise its legislation on elections, particularly
the Law on the Central Electoral Commission and the Electoral Law,
taking into account the recommendations put forward by the international
observers during previous elections,[…]” (
Opinion No. 222 (2000)).
3.1. Previous
ballots
19. All ballots held since Azerbaijan’s
accession have generally failed to meet basic democratic standards. The
2003 presidential election was marred by massive fraud and violence
and lacked transparency, casting doubts on the credibility of the
electoral result. The ensuing waves of violence led to arbitrary
arrests of opposition supporters and elections observers and officials
and politically motivated dismissals. The excessive use of force
by the Azerbaijani security forces resulted in the death of at least
one protester and the injuring of hundreds of others.
20. The 2005 parliamentary elections were more orderly and transparent
than previous national elections, although still marred with irregularities.
The lack of independence of local electoral commissions, which had been
subject to interference, pressure and intimidation from the local
authorities in the polling stations during the voting and serious
impediment to the right to peaceful assembly and disproportionate
use of force by the police in dispersing unauthorised rallies remained
however a serious concern.
21. Fraud and major irregularities also marred the vote counting
and tabulation process. The International Election Observation Mission
assessed the ballot counting process as bad or very bad in 43% of
polling stations observed, where officials reportedly attempted
to complete official tabulation protocols behind closed doors.
22. Moreover, following the ballot, the Central Electoral Commission
and the Constitutional Court did not satisfactorily address reports
of fraud and other irregularities.
23. In October 2006, the authorities held a partial re-run of
municipal elections following the invalidation of the results of
2004 local elections in 141 municipalities, because of irregularities
and complaints. The opposition Azadliq bloc, comprised of the Popular
Front Party, the Azerbaijan Democratic Party and the Azerbaijan
Liberal Party, boycotted the municipal elections, asserting that
the composition of local electoral commissions made the elections
inherently unfair.
3.2. Preparation
of the October 2008 presidential election
24. To date, opposition parties
play a less active role in politics than in previous years. The
aftermath of the November 2005 parliamentary elections was marked
by a further weakening of the opposition both inside and outside
parliament. Subsequent splits within the opposition have further
weakened its position.
25. Members of the opposition complained to us that the situation
had deteriorated in comparison with the previous years and that
there were neither conditions nor possibilities for democratic elections
in Azerbaijan as constitutional rights and freedoms of citizens
were limited. Mr Ali Kerimli, the Chairman of the Popular Front Party
of Azerbaijan (PFP), informed us that they would only take part
in the elections if the Electoral Code as well as the composition
of electoral commissions were amended, the freedom of assembly in
the capital and in the regions unrestricted, all the alleged political
prisoners released, media pluralism ensured and normal conditions
established for the activity of political parties.
26. The current lack of public confidence in the electoral process
directly threatens the credibility of the forthcoming elections.
Dialogue urgently needs to be established between the ruling majority
and the opposition both inside and outside parliament if the political
climate in the country is to be improved.
27. Since accession to the Council of Europe, the Parliament of
Azerbaijan has reinforced its position
vis-àvis the
other state institutions. However, much remains to be done to strengthen
parliamentary control of the executive and improve the checks and
balances in a state governed by a strong presidential system.
28. Our interlocutors from opposition parties complained about
limitations of their rights to freedom of assembly. The situation
is said to be sometimes worse in the regions where local authorities
reportedly take action to prevent routine party activities. They
reported that police officers often dispersed small gatherings at tea
houses and detained participants for questioning.
29. We are concerned about the last developments on the political
scene and the two dubious television programmes referring to homosexuality
– which is still considered a deeply shameful subject in the Azerbaijani society
– and aiming at discrediting the opposition.
30. This kind of outrageous behaviour only leads to further deterioration
of relations between the authorities and the opposition.
31. Concerning the campaign itself, the Electoral Code of Azerbaijan
provides that political parties and blocs are entitled to free broadcast
time and print space, under equal conditions in the state-funded
media. However, the Chairman of the National TV and Radio Broadcasting
Council regretted that no precise regulations provided for the allocation
of time to candidates on private channels. It is worth noting that
the National TV and Radio Broadcasting Council is still financially
dependent on the government so that its independence from the Executive
is not guaranteed.
32. At the time of our visit in May, an amendment to the Electoral
Code was being discussed in parliament, providing for the state
television to be replaced by the public television to cover the
election campaign, assigning air time in accordance with the legislation
on advertising.
33. So far, two presidential candidates have officially announced
their candidature: the incumbent President, Mr Ilham Aliyev, and
the Chairman of the Public Forum “For the Sake of Azerbaijan”, Mr Eldar
Namazov.
34. We urged all political parties to take part in the elections
and underlined the importance of the adoption and proper implementation
of the law on freedom of assembly, as well as of the freedom of
the media in the light of the forthcoming presidential elections.
35. We also urged the Azerbaijani authorities to pass on a clear
message in time for the 2008 presidential elections and at the highest
political level, that neither electoral fraud nor restrictions of
freedoms will be tolerated in the forthcoming elections.
3.3. Reform
of the Electoral Code
36. For the last parliamentary
elections in 2005 and 2006, the electoral legislation had been only
partially amended in line with the recommendations repeatedly made
by the Venice Commission. The Azerbaijani authorities eventually
requested the assistance of the Venice Commission for the reform
of the Electoral Code of Azerbaijan just before the May 2006 re-run
elections.
37. In
Resolution 1505
(2006), adopted in June 2006, the Assembly urged “the authorities
of Azerbaijan to amend the provisions regarding the composition
of the electoral commissions at all levels so as to establish an election
administration which enjoys the confidence of the electorate and
of all the stakeholders and to further develop the procedure for
an efficient handling of election-related complaints and appeals
with the assistance of the Venice Commission.”
38. To date, some recommendations repeatedly made by the Parliamentary
Assembly, the Venice Commission and the Office for Democratic Institutions
and Human Rights of the Organization for Security and Co-operation
in Europe (OSCE/ODHIR), which are crucially important for the 2008
presidential election, have not been addressed or are insufficiently
addressed. At the time of our visit in May, the amendments to the Electoral
Code were precisely under discussion in parliament. On 2 May 2008,
the President of Azerbaijan presented to the parliament a draft
law on the amendments to the Electoral Code of Azerbaijan, which
was subsequently discussed on 14 May by the Committee on Legal Policy
and State Construction of the Parliament. The discussion of the
draft in the plenary is due to be held by the end of May or early
June 2008.
39. The Venice Commission adopted a joint-interim opinion with
the OSCE/ODIHR on the draft electoral code at its 74th Plenary Session
on 14 and 15 March 2008. In its opinion, the Venice Commission considered that
the current Electoral Code remains far too complex with unnecessary
repetitions, especially in the provisions on the registration of
candidates, campaign financing, lists of persons entitled to conduct
pre-election campaigns and limitations on the content of election
campaign material.
40. The most important issues on which the Azerbaijani authorities
are invited to co-operate with the Venice Commission with a view
to revising the Electoral Code are: the composition of the Central
Electoral Commission (CEC) and territorial electoral commissions;
the voters’ list and its accuracy, as well as the complaints and
appeals procedures.
41. The CEC is composed of 18 members elected by parliament (six
from the majority party, six from the minority parties and six representing
independent members of parliament); 16 members have now been elected
and the CEC has the required quorum to function. We urged all parties
to agree on the designation of the two remaining members.
42. The existing provisions in the Electoral Code are not sufficient
to ensure that the commissions are not dominated by pro-government
forces. The procedures on the designation of the members of the
CEC, but also of the territorial electoral commissions and the precinct
electoral commissions, should be revised in order to ensure a more
balanced representation of different political forces. Independent
candidates in the CEC and territorial electoral commissions should
be agreed upon by consensus and we encourage all parties to ensure the
effective work of territorial commissions, as well as the fair distribution
of the posts of chairman, vice-chairman and secretary (one third
for the majority party, one third for the opposition, one third
for the independents). Moreover, an efficient complaints and appeals
procedure should be guaranteed.
43. All 32 000 members of territorial and precinct electoral commissions
will be trained by national and international experts before the
elections. A major effort in modernisation of premises of electoral
commissions has been made and each of the 125 constituencies will
be provided with their own modern and appropriate premises by the
day of the elections.
44. The current Electoral Code provided for the updating of the
voters’ list to be dealt with between January and May 2008. The
4 830 million voters’ list was thus currently being updated at the
time of our visits. The procedure has been simplified: while in
the past an appeal to the court was necessary, a simple request accompanied
by a proof of residence can now induce the correction of the voters’
list. In this regard, the chairman of the CEC is confident that
all relevant measures have been taken so that mistakes from the
last ballot will not be repeated. A positive development has been
the presidential decree of October 2005 which introduced the marking
of voters’ fingers with invisible ink. We were informed by the authorities
that mandatory inking would be introduced in the Electoral Code
with the amendment to the Electoral Code currently under way.
45. The process of registration of candidates is still a matter
of concern. Registration can be refused in a number of cases. The
possibility to de-register a candidate just before the election
day, with no real possibility to appeal and have a decision in time
for the elections, is another major problem of the current legislation.
We were informed that an amendment to the Electoral Code foresees
an increase of the registration deposit up to 300 000 Manats (about
€230 000), which is to be voluntarily used if a candidate does not
collect the required 45 000 signatures required for candidates’
registration. The opposition complained that this new provision,
if adopted, would constitute a major obstacle for the registration
of opposition candidates.
46. We urge that the amendments to the draft be finally adopted
in full compliance with the Venice Commission’s and ODIHR recommendations.
We consider that this is a fundamental prerequisite for the democratic
credibility of the country.
47. Concerning observers to the electoral process, a positive
development was the signing of a presidential decree in 2005 which
reversed the ban on election observation by NGOs receiving financial
support from international sources. However, the change had no impact
on the 2005 parliamentary elections, as all observers were required
to have registered in advance but domestic election observers were
generally able to register as individuals.
48. In this respect, we are concerned about the recent revocation
of the Election Monitoring Centre (EMC) following an appeal by the
Ministry of Justice. The EMC is one of Azerbaijan’s most experienced
non-partisan domestic election observation organisations. This development
clearly contradicts the statement made by the authorities about
their will to hold free and fair elections.
4. The
fight against corruption and money laundering
49. The World Bank’s worldwide
governance indicators reflected that corruption was a severe problem.
In Transparency International’s corruption perception index 2007,
Azerbaijan ranked 130 (out of 163) in the corrupt countries.
50. According to the Group of States against Corruption (GRECO),
Azerbaijan was making
substantial efforts to address the problem of corruption but still
appeared to be extensively affected by corruption at all levels
of society, which could jeopardise the strong economic growth and
represent a threat to its social and political development.
51. Following the amendment of the law on combating corruption
and the related presidential decree of 3 March 2004, the latest
National Strategy on Increasing Transparency and Combating Corruption
was adopted in July 2007 by presidential decree. The national strategy,
as well as the action plan for its implementation in 2007-11, have
been prepared in close co-operation with the Council of Europe.
52. A law on rules of ethics and conduct of civil servants was
adopted in June 2007. However, Azerbaijan has still not introduced
comprehensive preventive legislation as regards anti-money laundering
and countering the financing of terrorism. The draft laws on money
laundering and counter-financing of terrorism, on conflict of interest
and on responsibility of legal persons for corruption offences have
been reviewed by the Council of Europe and should be adopted by
the parliament very soon, hopefully in spring this year. Once again,
concrete measures to ensure an effective and efficient implementation
of the relevant legislation should be taken immediately after adoption.
53. We believe that the fight against corruption should be a high
priority for all state institutions. We recommend that a committee
on the fight against corruption be set up within the parliament
to foster the implementation of the national strategy. The recommendation
made by GRECO and the Committee of Experts on the Evaluation of
Antimoney Laundering Measures and the Financing of Terrorism (MONEYVAL)
should be implemented without further delay.
5. Fundamental
rights and freedoms
5.1. Freedom
of expression
5.1.1. The
press
54. Upon its accession to the Council
of Europe, Azerbaijan undertook to “guarantee freedom of expression and
the independence of the media and journalists and particularly to
exclude the use of administrative measures to restrict the freedom
of the media” (
Opinion
No. 222 (2000)).
56. Azerbaijan ranks as 139th out of 169 countries in the 2007
Reporters Without Borders Worldwide Press Freedom Index ranking.
57. All human rights NGOs and media representatives, as well as
representatives of political parties from the opposition that we
met during our visits in February and May 2008, spoke about a deterioration
of the human rights situation and in particular of the freedom of
speech in the country in 2007.
In
their view, the media situation continues to deteriorate ever since
the murder of Elmar Huseynov, the editor-in-chief of the
Monitor Magazine who was gunned
down in March 2005.
58. We are concerned about the recurrent attacks against the most
vocal opposition newspaper,
Azadliq, and
in particular the arrests, judicial proceedings and incidents of
violence against its reporters and staff, as well as intimidation
through financial pressure. During our May visit, media representatives
described a climate of fear within the
Azadliq newspaper,
created by the threats and pressure exerted on the staff and their relatives’
lives.
59. We are particularly concerned about the case of
Azadliq reporter, Agil Khalil, who
was stabbed by an unidentified person on 7 May 2008. We fail to
understand why the authorities have forbidden Mr Khalil to leave the
country pending the investigation, while he has been the victim
of several physical attacks. Moreover, the head of the public prosecutor’s
office, Vugar Aliyev, made a statement to the press, taking position
on the case and accusing Mr Khalil of “spreading unjustified statements
about his being tracked and attacked by unknown people”,
therefore interfering with
the ongoing investigation.
60. Most newspapers and magazines are printed in government publishing
houses or on private printing presses owned by individuals close
to the government. The majority of independent and opposition newspapers
remain in a precarious financial position facing regular problems
paying wages, taxes and court fines. The authorities prohibit some
state libraries from subscribing to opposition newspapers.
61. The economy is monopolised at every stage to the extent that
the lack of a free market of advertising in the newspapers hinders
the development of a free and pluralist press in the country. State
companies are not allowed to buy advertising in opposition newspapers
and private companies are reportedly put under pressure to do the
same.
62. On 7 May 2008, President Ilham Aliyev signed a decree stipulating
that a free copy of every published magazine must be sent to the
Press Council.
63. All media representatives we met consider that public officials
use defamation suits to prevent the publication of embarrassing
or incriminating information.
According to the Criminal Code of Azerbaijan, defamation
can be punished with up to three years’ imprisonment.
64. The Assembly, the Secretary General and the Commissioner for
Human Rights, as well as the OSCE Representative on Freedom of the
Media have repeatedly called on the Azerbaijani authorities to decriminalise defamation.
65. In his November 2007 report to the OSCE’s Permanent Council,
the Representative on Freedom of the Media of the Organization for
Security and Co-operation in Europe, Mr Miklos Haraszti, described
the situation of the independent media in the country as “grave”.
In April 2008, he took a strong critical position on the situation
on mass media in Azerbaijan expressing his concern over the continuing
persecution of investigative journalists: “Azerbaijani law enforcement
agencies have recently fabricated accusations against several independent
investigative journalists. This is especially regrettable in a democracy
that has overcome the era when prosecutors faked cases against those
with ideas that the government did not like”.
66. In 2007, there were more than 100 cases where media representatives
were taken to court. This indicator is 10 times higher than in 2005.
The initiators and authors of 90% of claims and accusations against journalists
were high-ranking state officials. The local courts sentenced nine
journalists. All these journalists and the bodies for which they
work are known for being critical of the government.
67. A presidential pardon decree issued on 28 December 2007 included
six journalists, but regrettably the three journalists associated
with the most vocal opposition newspapers, the two Zahidov brothers
(Sakit and Ganimat) and Mr Fatullayev, did not benefit from it.
68. The authorities consider that the problem of journalists’
arrests is linked to their lack of professionalism and ethics and
point at this as the cause of the high number of defamation suits.
69. Therefore, they do not envisage any legal reform aiming at
the decriminalisation of defamation (which they claim exists in
other European countries) nor the revision of relevant civil law
provisions to ensure respect for the principle of proportionality,
as recommended in
Resolution
1545 (2007). However, the Azerbaijani authorities welcomed and encouraged
the assistance of the Council of Europe and other international organisations
in the training of journalists and judges.
70. The authorities seem to believe that they are protecting the
public interest when they try to silence media which they consider
to be unprofessional. For our part, we believe that only weak governments
use the law to silence political and social debate in the media.
If there is no room for discussion in the media, opposition will have
to go underground or in exile outside the country.
71. We stress that arbitrary actions against journalists are undemocratic
and contrary to Article 10 of the European Convention on Human Rights
(ECHR). The right to freedom of expression includes the freedom
to hold opinions and to receive and impart information and ideas
without interference from the authorities. There are also doubts
whether the severe sentencing of journalists for alleged defamation
is in line with Council of Europe standards. There is a need to
train judges on the case law on Article 10 of the European Convention on
Human Rights and strengthen their independence.
72. The Council of Europe has now initiated a substantial project
aimed at improving the level of journalism in the country. The Azerbaijani
authorities should also take some initiatives to abide by their
commitment and comply with the requirements of Article 10 of the
European Convention on Human Rights.
73. We reiterate that the Azerbaijani authorities should initiate
the legal reform aiming at the decriminalisation of defamation and
the revision of relevant civil law provisions to ensure respect
of the principle of proportionality as recommended in
Resolution 1545 (2007), paragraph 8.2.
74. Pending revision of the legislation, the President of Azerbaijan
should reintroduce his 2005 political moratorium and appeal to public
officials to refrain from starting legal proceedings against journalists
for defamation.
75. At the same time, we encourage efforts aiming at improving
the professional standards and ethics of journalists in Azerbaijan.
Journalists themselves should strive for such improvements. Council
of Europe assistance could be sought for sustainable training mechanisms
both for journalist students and professionals.
76. We also believe that the Azerbaijani authorities should ensure
the respect for journalists by guaranteeing the effective prosecution
of perpetrators of attacks against journalists.
5.1.2. Radio
and television
77. Some private television channels
broadcast the views of both government and opposition officials,
but their programmes are not available in all parts of the country.
ANS TV, a popular channel regarded as independent, provides relatively
balanced news coverage, although opposition political party leaders
complain that no television station covers their activities.
78. The National Television and Radio Council (NTRC) oversees
the operation of electronic media. In June 2007, the Council of
Europe addressed an expertise to the Azerbaijani authorities on
the draft law on television and radio broadcasting and on the decree
of the president approving regulations of the NTRC.
79. The Council of Europe experts welcomed a number of progressive
provisions and the affirmation of fundamental principles such as
the freedom of information and speech, pluralism, objectivity and
quality of broadcasting, as well as the precedence of international
law. At the same time, though, the experts underlined that the greatest
problem with the law was the extensive state interference with broadcasting.
The law refers to targeted state programmes and other direct state
intervention in broadcasting, including the state ordering special
programmes or sponsoring broadcasting. Also, the Council of Europe
experts regretted that the NTRC is not an independent body, since
all its members are actually appointed by the President of the Republic
who is also empowered to issue instructions to the NRTC. Moreover,
the procedure in place for awarding licences does not contain any
criteria or public-policy objectives.
80. The NTRC is directly funded from the state budget, which allows
direct political pressure by the government. The Chairman of the
NTRC actually confirmed to us that the situation remains somewhat
blurred as the council is not treated as a public administration
body (notably as regards civil servants’ increase of salaries) but
could not establish its own budget either. He also noted that the
NTRC often invited leaders of political parties to participate in
various programmes, but they refused to do so.
81. We regret that no concrete follow-up has been given to the
Council of Europe expertise and encourage the Azerbaijani authorities
to take the necessary measures to make the NTRC an independent body
with clear functions and regulations. In particular, the law should
be amended so as to clarify the role of the state broadcaster as
compared with the public broadcaster, ensure the financial independence
of the NTRC and define the conditions for the awarding of broadcasting
licences more clearly. Moreover, the NTRC should draft clear guidelines
for licence holders and fulfil its monitoring duties.
5.1.3. Internet
82. As regards the Internet service,
providers have to be licensed and to have formal agreements with
the Ministry of Communications and Information Technologies.
83. Media representatives, representatives of the opposition parties
and human rights defenders complained that the NTRC considers it
its duty to control also the information broadcast on the Internet
in order to ensure that regulations and law also apply to this media.
They fear that such a control would actually lead to censorship
especially since the independence of the Council was subject to
doubt. They reported that, on several occasions during 2007, the
government temporarily blocked public Internet access to a website
popular for criticising the president. During our visit in February,
the Chairman of the NTRC explained that Internet represented a new
and complex development of technology and an important matter which
needed regulations and was thus on the NTRC’s agenda.
84. We are particularly concerned about reports on the recently
created Co-ordination Council by the Ministry of Communications
and Technologies which is working on a limitation plan for Internet
access. We share the fear of Mr Osman Gunduz, Chairman of the Internet
Forum of Azerbaijan, that such a plan could lead to further restrictions
on freedom of expression in the country.
5.2. Freedom
of assembly
85. Unacceptable violations of
the freedom of assembly were one of the reasons for which the credentials of
the Azerbaijani delegation were challenged in January 2006.
86. Violations of freedom of assembly in Azerbaijan have indeed
been repeatedly and firmly denounced by the Assembly, especially
prior to or after elections, and most recently after the parliamentary
elections of November 2005.
87. In its
Resolution
1545 (2007), paragraph 8.7, the Assembly welcomed the fact that
the authorities of Azerbaijan had shown the political will to amend
the 1998 law on freedom of assembly and had requested the assistance
of the Venice Commission; it urged them to amend the law in line
with the recommendations made by the latter and take appropriate
measures to ensure that the implementation of the relevant legislation respects
the guarantees of Article 11 of the European Convention on Human
Rights as interpreted by the European Court of Human Rights. Most
regrettably, violations of the freedom of assembly and the excessive use
of force by law enforcement agents have not yet stopped.
88. The authorities of Azerbaijan are committed to cooperating
with the Venice Commission on the reform of the 1998 Law on Freedom
of Assembly. Draft amendments to the 1998 Law on Freedom of Assembly
were submitted to the Venice Commission by the authorities in November
2007. The Venice Commission approved an opinion on these amendments
at its meeting in December 2007.
It commended
the commitment shown by the Azerbaijani authorities to remedy the
shortcomings of the Law on Freedom of Assembly of 1998, currently
in force, following the suggestions made by the Commission in its
opinion of October 2006 and in consultation with the rapporteurs
and the OSCE Mission in Baku, as well as with the ODIHR. Significant improvements
have been proposed. If these proposals are adopted by the parliament
in this form, including the remaining modifications which are set
out in this opinion, the law will meet European standards. Due implementation
of the law will then be crucial.
89. The Venice Commission further underlined that the law must
be applied and interpreted by the administrative authorities, the
courts reviewing their decisions and the police in a manner which
respects the standards which have inspired it. They must show a
presumption in favour of assemblies. This will require extensive
discussions, including with the civil society, and specific training.
The Venice Commission expressed its readiness to assist the Azerbaijani
authorities in this process.
90. The adoption of the draft law by the parliament is on the
agenda of its spring session. During our visit in May, the Azerbaijani
authorities confirmed to us that the draft had taken into account
all the recommendations made by the Venice Commission.
91. Pending adoption of the amendments, the law as it stands today
provides for numerous cases of automatic prohibition on holding
an assembly. Our interlocutors representing human rights defenders
and opposition parties complained that most public rallies or demonstrations
had to be cancelled at the last minute following a decision by the
local administration to change the venue for the protest action.
In some cases, demonstrations were interrupted by the police and
party members were arrested; in most cases they were released after
a short period of time or in other instances, after having paid
fines. During our meeting with Mr Mehdiyev, head of the Presidential
Administration, we were informed that the Baku Mayor’s office had offered
seven different venues for the opposition to hold their rallies,
which had all been declined by organisers on the ground that they
were not central enough.
92. Moreover, a variety of religious communities complained that
the authorities periodically and selectively harassed registered
and unregistered religious groups. There were also some reports
of police intimidating representatives of these groups.
93. We consider it is crucially important that the parliament
adopts the revised law on freedom of assembly in time before the
forthcoming presidential elections due in four mouths and a half.
Moreover, once the revised law is adopted, the authorities will
have to immediately focus on its implementation, on awareness-raising measures
and provide adequate training to the competent authorities. Keeping
in mind the violent dispersal of peaceful rallies in 2005, we are
particularly insisting on the importance of the due implementation
of the revised law.
5.3. Freedom
of association
94. The government took a number
of measures regulating the activities of political parties, religious
groups, legal persons and NGOs, including a requirement that all
organisations register either with the Justice Ministry or the State
Committee on Work with Religious Associations (SCWRA). We fear that
such measures may lead to a restriction of the freedom of association
in practice.
95. Whereas the law requires the government to act on registration
applications within thirty days of receipt, non-transparent registration
procedures are still resulting in long delays. According to a 2003
provision, all existing NGOs have to re-register with the Justice
Ministry which often delays or simply denies registration to some
previously registered groups, often citing the failure of applicants
to follow proper procedures. According to figures provided to us
by the Minister of Justice during our May visit, the Ministry registered
361 NGOs in 2007. Over 2 300 NGOs are registered to date in Azerbaijan.
96. As a follow-up to the 2006 Presidential Decree on the National
Action Plan (NAP) on the Protection of Human Rights, a task force
comprising all relevant public institutions and NGOs and chaired
by the Ombudsperson was set up in May 2007 to implement the NAP.
The task force set up five working groups of experts working on
the different fields of activities covered by the NAP.
97. A presidential decree was adopted on 13 December 2007 setting
up the National Council for NGOs, as well as providing a set of
principles governing public financial support to NGOs, which includes
the establishment of the Council for State Support to NGOs. The
fact that all 11 members of the council are appointed by the President,
even if eight of them are proposed by the NGOs themselves, gives
rise to concern as regards the independence of the institution.
That said, the regulations of the Council of State Support to NGOs
provide for fair, objective and transparent procedures for the allocation
of funds. The future work of this new council for NGOs will prove
its independence or otherwise.
98. On 17 January 2008, the European Court of Human Rights condemned
Azerbaijan for violation of Article 11 of the European Convention
on Human Rights (freedom of association) in the case Ismayilov v. Azerbaijan and awarded
Mr Ismayilov €1 000 for non-pecuniary damage.
99. We can only express concern about the revocation and annulment
of the Election Monitoring Centre’s registration as an NGO following
an appeal by the Legal Persons’ Registration Department of the Ministry
of Justice on 14 May 2008 on the grounds that the organisation gave
incorrect information about its founders and legal address and opened
eight branches in the regions without informing the Justice Ministry.
5.4. The
right to fair trial, follow-up to the issue of alleged political
prisoners and humanitarian concerns
5.4.1. The
right to a fair trial and the reform of the judiciary
100. Lack of transparency and fairness
in the court proceedings undeniably leads to serious concerns as
to their compliance with Article 6 of the European Convention on
Human Rights. In a number of judgments on Azerbaijan, the European
Court of Human Rights found a violation of Article 6; their execution
is currently pending.
101. The Azerbaijani authorities have been co-operating closely
with the Council of Europe on the reform of the judiciary since
2000 with a view to ensuring greater independence of judges and
improving the procedures of selection and appointment of judges.
Judicial corruption and lack of independence of the judiciary remain serious
problems in Azerbaijan and we welcome the open and constructive
attitude of the Azerbaijani authorities who are fully aware of the
need to further reform and train the judiciary, effectively eradicate corruption
among judges and improve the negative image of justice in the country.
102. The reform lies less in the letter of the law, which actually
provides for an independent judiciary, than in its implementation
and in addressing the strong influence still exerted over the judiciary
by the executive branch.
103. Among the relevant reforms, the setting up of the Judicial
Legal Council in 2005 was a major step forward for ensuring, in
the long run, the smooth functioning of the judicial system.
104. We met with several members of the Judicial Legal Council
who showed great determination in their tasks. The selection, transfer
and promotion of judges, evaluation of performance and lifting of
the immunities of judges are among the Council’s tasks. Its 15 members
are appointed by the President, Parliament and the Constitutional
Court and include: the Minister of Justice, the Chairman of the
Supreme Court, two judges from the Courts of Appeal and the first
instance courts, a judge of the Supreme Court, a judge from the
Nakhichevan Autonomous Republic and representatives from the Bar
Association, the Prosecutor’s Office and the Ministry of Justice.
The Council is currently chaired by the Minister of Justice, which
raises concerns in terms of separation of powers.
105. The reforms also provided for new recruitment procedures for
judges, extended to judges the financial requirements set forth
in the 2004 law on combating corruption, including the submission
of tax returns and restrictions on gifts, provided for the creation
of a committee to select judges and established a training programme
for candidates for the judiciary. A channel for individuals and
legal persons to complain about alleged judicial corruption was
created. Citizens can appeal directly to the Judicial Legal Council
which has the power to initiate proceedings against judges accused
of corruption.
106. As regards the selection procedure of judges, a series of
examinations have been organised since 2006 to recruit new judges
in what we heard was a fair and transparent selection procedure
drawn up in co-operation with the Council of Europe. The candidates
who are successful in the written examination are subsequently interviewed
by the Judicial Legal Council, which then submits the list for the
President’s approval. The Executive has still the final word in
the new selection procedure and the co-rapporteurs received several complaints
about the lack of transparency in the oral interview process.
107. Moreover, the fact that the President of Azerbaijan appoints
Supreme Court, Appellate Court and Constitutional Court judges (subject
to parliamentary confirmation) and lower court judges (without parliamentary
confirmation) can easily lead to a practice where judges do not
perform their tasks independently of the executive branch.
108. The progress made in creating the legislative and institutional
framework for the judicial system is promising in terms of the creation
of an independent judiciary in Azerbaijan. However, the lack of
effective and systematic implementation of the law remains a major
obstacle to the proper functioning of the judicial system. For example,
at present, judges often decide whether or not to hear a case without
relying on any specific legal provisions.
109. The low salary and heavy workload of judges is still a major
problem for the judiciary in the country. Azerbaijan has only 4.06
judges per 100 000 people. Despite a recent significant increase,
the annual salary of a local court judge in the country is US$11
635. Reportedly, judges routinely accept bribes or receive instructions
from the executive branch, particularly in cases of interest to
international observers.
110. Another problem is that bailiffs lack the power, skills, resources
and initiative to enforce court decisions. Failure to enforce court
decisions further undermines trust in the judicial system. The lack
of qualified lawyers remains another issue of concern. The reinforcement
of the defence bar is critical for preventing human rights abuses
and protecting the rights of the defendants in criminal proceedings.
111. The general prosecutor informed us about a draft code of conduct
on prosecution bodies that is under preparation. A code of conduct
for judges also remains to be drafted to prevent abuse of power
and corruption, in accordance with the 2006 decree on the reform
of the judiciary.
112. Domestic and international observers of trials stressed that
numerous violations of the law occurred during alleged politically
motivated trials: provisions for the presumption of innocence in
criminal cases, the right to review evidence, the defendant’s rights
to confront witnesses and present evidence at trial, the right to a
courtapproved attorney for indigent defendants and appeal for defendants
and prosecutors are rarely respected in practice. Lawyers of prisoners
we met also complain that prosecutors’ privileges and rights outweighed
those of the defence, even though the constitution prescribes equal
arms for prosecutors and defence lawyers.
5.4.2. Follow-up
to the issue of alleged political prisoners and humanitarian concerns
113. The serious dysfunctioning
of the Azerbaijani judicial system has resulted in the creation
of new cases over the last years in which persons find themselves
charged and tried for offences, such as attempted coups d’état,
offences against state security or terrorism, which do not always
correspond to the facts.
114. In
Resolutions
1457 (2005) and 1545 (2007), the Assembly concluded that it “[could]
not consider the issue of political prisoners to have been finally
resolved” and asked the Azerbaijani authorities to take a number of
measures in order to find “a speedy and permanent solution to the
issue of political prisoners and presumed political prisoners”.
115. A motion for a resolution on the follow-up to the issue of
political prisoners in Azerbaijan was tabled by several members
of the Committee on Legal Affairs and Human Rights in mid-December
2007. Consequently, the possible appointment of a special rapporteur
on this issue was crucially important for all interlocutors we met
in February and was raised in every single meeting we had.
116. All interlocutors from the authorities’ side underlined that
the 28 December 2007 presidential pardon decree, issued after the
motion was tabled, allowed the release of 114 persons from serving
their remaining sentences while the prison term of five prisoners
was reduced. The official position remains that all alleged political
prisoners appearing on the human rights defenders’ lists are common
law prisoners who have been prosecuted on criminal charges and therefore
cannot be released. The authorities considered that the appointment
of a special rapporteur on political prisoners would be a blow to
relations between the Council of Europe and Azerbaijan. All official
interlocutors insisted on the same message: the issue of political
prisoners was closed and they did not understand why the Assembly
would apply such double standards, that is, talking about political
prisoners in Azerbaijan and simultaneously remaining silent on political
prisoners in other Council of Europe member states.
117. We attended a meeting of the task force on alleged political
prisoners on 7 February 2008. This task force is in charge of the
follow-up given to Assembly
Resolution
1457 (2005) and comprises the major NGOs active in the field of
human rights, a number of MPs (notably the chairman and members
of the Assembly delegation) and officials from the Presidential
Administration, the Ministry of Justice and the Ministry of the Interior.
118. Genuine efforts have been made by the parliamentary delegation
of Azerbaijan to the Assembly in the search for a final solution
to this issue. The 2007 December presidential decree encouraged
the task force to continue its work and produce further results.
119. However, the task force needs to be reinforced and its efficiency
increased. We are still expecting the task force to produce an update
of the June 2005 lists indicating to us how many cases have since
been resolved. The only figures available today come from human
rights defenders’ organisations. It is for the task force to study
other cases which need consideration, including on humanitarian
grounds. The Special Representative of the Secretary General (SRSG)
of the Council of Europe in Baku is regularly attending the meetings
of the task force. The task force could consider his assistance
in the organisation and follow-up of the meetings and the Assembly
could ask the Secretary General to allow the SRSG to report in writing
on the task force activities to our committee.
120. When adopting its
Resolution
1457 (2007), the Assembly had hoped that the Azerbaijani authorities would
“find a speedy and permanent solution to the issue of political
prisoners”, by releasing the remaining political prisoners or by
allowing retrials and that they would actually “make use of every
legal remedy (amnesty, review of cases by higher-instance courts,
conditional release, release for health reasons, pardon) to settle
this problem”.
121. However, to date, the work of the task force has not lived
up to expectations: no amnesty law has been adopted for the cases
under its consideration nor is being envisaged by the parliament
and, in some cases, prisoners released through presidential decrees
have been rearrested a few months later. Furthermore, in the particular
context of a presidential election year, numerous arrests of journalists,
incidents of intimidation, reports of violence and threats against
the opposition and independent media, create a climate of fear and tensions
within society.
122. It is worth noting that, on 8 May 2007, the parliament passed
an act granting amnesty to 9 000 persons who had been convicted
of petty crimes but none of these individuals falls within the category
of persons for whom the Assembly or the task force have been concerned
for a number of years.
123. The pardoning decree of 28 December 2007 led to the release
of a number of prisoners. Some 17 prisoners appearing on the list
of human rights defenders were released, including six journalists.
However, the three journalists working in the most vocal opposition
newspapers did not benefit from the decree (the two Zahidov brothers
and Mr Eynulla Fatullayev). None of the prisoners referred to in
Resolution 1545 (2007) have been released either.
124. During our visit in February, we handed a letter to President
Aliyev asking him to release the remaining political prisoners mentioned
on the human rights NGOs lists of alleged political prisoners.
125. On 18 March 2008, President Aliyev signed another decree ordering
the pardon of 59 prisoners. All but one prisoner were released ahead
of the Novruz Holiday (20 to 28 March). The sentence of one prisoner
was halved. Six people whose name appeared on the human rights NGOs
lists of alleged political prisoners benefited from the pardon decree.
Again, the three imprisoned journalists did not benefit from it.
126. It is worth noting that, on 24 April 2008, Mr Eynulla Fatullayev,
Mr Sakit Zahidov and Mr Ganimat Zahidov were awarded the Hellmann/Hammett
grants, administrated by Human Rights Watch, in recognition of their
work.
5.4.3. Particular
cases of prisoners followed closely by the Assembly
127. Prisoners whose state of health
gives cause for concern and to which the Assembly has drawn the authorities’
attention on several occasions remain in prison for reasons we fail
to understand.
128. Moreover, the strict application of the law on conditional
release could enable the immediate release of dozens of prisoners,
without even requiring any pardon decree.
129. During our visit, we requested the authorities, in particular
the President of Azerbaijan, to consider the release of several
prisoners whose names we received from NGOs, including those mentioned
in
Resolution 1545 (2007) (Natiq Efendiyev, Rasim Alekperov, Ruslan Bashirli,
Ramin Tagiyev) and/or in the April 2007 report (
Doc. 11226) (Sahavat Gumbatov, Akif Huseynov and Telman Ismayilov).
We also urged that the three imprisoned journalists whom we met
in prison, Mr Sakit Zahidov, Mr Ganimat Zahidov and Mr Eynulla Fatullayev,
be immediately released.
130. We very much welcome the release of two of the abovementioned
prisoners, Mr Sahavat Gumbatov and Mr Ramin Tagiyev (Vice-Chairman
of the “Yeni Fakir” youth movement) by court decision in February
2008, and urge that those remaining will also be released, in particular
the three journalists and the prisoners mentioned in
Resolution 1545 (2007). In this respect, the conviction of Mr Ganimat Zahidov
to a four-year term of imprisonment for hooliganism on 7 March 2008,
is regrettably a negative development.
131. In February, we were able to visit most of the prisoners we
had requested to meet, with the exception of Mr Sakit Zahidov (Mirza
Sakit), who was suffering from serious heart problems at the time
of our visit and was just about to be transferred to a penitentiary
hospital, and Mr Ganimat Zahidov, who was held in a pre-trial detention
centre. During our May visit, we visited the three imprisoned journalists,
Mr Eynulla Fatullayev and the two Zahidov brothers, as well as the
former Minister for Economic Development, Mr Farhad Aliyev.
132. We thank the authorities and especially the Chairman of the
Azerbaijani delegation to the Assembly, Mr Seyidov, and the Minister
of Justice, Mr Fikrat Mammadov, for organising these meetings. A
summary of the cases and of our discussions with the prisoners during
both our February and May visits appears in Appendix II.
5.5. Prison
reform, detention conditions and allegations of ill-treatment
133. The Minister of Justice issued
an order in April 2006 setting out regulations on public participation
in and supervision over the prison system and establishing a public
committee to secure their implementation. Access to prisons has
been granted to the ombudsperson, local and international non-governmental
organisations and human rights defenders. The situation is now well
monitored. Further steps to improve the prison conditions have to
be taken.
134. The construction of several new prisons is under way or planned
and should, in the long term, improve the situation in the prisons
of Azerbaijan.
135. Today, prison conditions in Azerbaijan remain harsh despite
continuing infrastructure improvements. The situation in the Gobustan
prison still gives rise to particular concerns in view of the number
of deaths and suicides committed by inmates. Specific complaints
against the inhuman regime set up by the new chief of prison, Kazim
Abdullaev, have been received from several prisoners, including
allegations of physical and psychological torture.
136. We would like to draw particular attention to penitentiary
centre No. 13, where we visited Mr Insanov. The detention conditions
are particularly harsh. There is no heating as the gas pipeline
does not reach the settlement, whereas penitentiary centre No. 12,
which we also visited, is heated and is located only a few metres
away from centre No. 13. We expect that the authorities will provide
penitentiary centre No. 13 with access to gas and thus install a
functioning heating system for the establishment.
137. Incidentally, during our visit in May 2008, we were informed
that, because of regulations imposed by the prison administration,
inmates of penitentiary centre No. 14 willing to use the prayer’s
room had to provide certificates of their faith from the relevant
religious authority. We forwarded this complaint to the Minister
of Justice who confirmed that these regulations were in violation
of the prison regime and promised to investigate the case and ensure
that freedom of religion is guaranteed in all prisons.
138. Regrettably, the only report of the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT) which has been published concerning Azerbaijan
to date is that on the first periodic visit in 2002. The last CPT
visit to Azerbaijan took place in November 2006. The report on that visit,
which was sent to the authorities in July 2007, has not yet been
made public. The authorities’ response was sent to the CPT in February
2008. We were informed that the Azerbaijani authorities were currently providing
for the translation of the CPT reports in order to make them public
and available to the Azerbaijani population, including prisoners.
We welcome this initiative and see no reason to further postpone
publication of the CPT reports on Azerbaijan, in line with the standard
practice of member states. We further encourage the reports on the
two ad hoc visits of January 2004 and May 2005 to be made public.
139. We have received numerous reports of cases of illtreatment
and allegations of torture carried out by lawenforcement officials
during police custody or pre-trial investigations, as well as in
the army, for the purpose of extracting confessions or obtaining
incriminating statements by witnesses. Investigations into such behaviour
have rarely led to prosecution of officers who have committed abuses.
140. On 11 January 2007, the European Convention on Human Rights
passed a judgment in the case Mammadov
(Jalaloglu) v. Azerbaijan finding a violation of the
European Convention on Human Rights Articles 3 (prohibition of torture)
and 13 (right to an effective remedy). The execution of this judgment
is pending.
141. Another problem is the lengthy pre-trial detention of up to
eighteen months. The general prosecutor regularly extends the initial
three-month pre-trial detention period in successive detention periods
of several months until the end of the investigation, leading to
the de facto denial of the right to an effective appeal procedure
and inappropriately prolonging the pre-trial. Some detainees are
denied access to a lawyer or the right to visits by their families
during this period.
142. Moreover, the law allows police to detain and question individuals
for twenty-four hours without a warrant. Many individuals have reportedly
been detained by the police for several days, sometimes weeks, without
a warrant. In other instances, the general prosecutor issued ex
post facto warrants.
143. According to reports we received, judges repeatedly sentence
detainees to imprisonment within hours of their arrest without providing
access to a lawyer. In many cases, for example in the cases of alleged
political prisoners mentioned above, the authorities often restrict
family member visits and withhold information about detainees.
144. We received reports from NGOs and lawyers of several accused
persons complaining that some of the detainees did not have access
to appropriate medical care (see also above section on alleged political prisoners).
145. In this regard, one should add that the ombudsperson pays
particular attention to the situation in prisons, seeking investigation
on reported cases of torture or ill-treatment and regularly visiting
prisoners.
5.6. Alternative
service and conscientious objectors
146. The establishment of an alternative
civilian service is one of the obligations undertaken by Azerbaijan when
it joined the Council of Europe in 2001. Azerbaijan undertook to
create a legal framework for alternative civilian service by January
2004, yet to date no such law has been adopted.
147. Through a constitutional amendment introduced in August 2002
the Azerbaijani Constitution provides for the option of alternative
civilian service (Article 76) for all those whose convictions do
not permit them to undertake military service. However, the Azerbaijani
courts still rule in favour of the military authorities in cases of
conscientious objection.
148. On 4 October 2007, a court sentenced Samir Huseynov, a Jehovah’s
Witness and conscientious objector, to ten months’ imprisonment
for refusing to fulfil his mandatory military service.
149. We were informed that the national action plan for the protection
of human rights envisages the preparation of a draft law on alternative
service by a task force, including Council of Europe experts, in
2007 and 2008. This task force has yet to be set up.
5.7. Minorities
rights
150. Upon its accession to the Council
of Europe, Azerbaijan committed itself “to adopt, within three years
of its accession, a law on minorities which completes the provisions
on non discrimination contained in the constitution and the Penal
Code and replaces the Presidential Decree on national minorities”
(
Opinion No. 222, paragraph 14.iv.
g).
151. In its
Resolution
1545 (2007), paragraph 8.16, “the Assembly urges the authorities
to implement the recommendations made by the Advisory Committee
and in particular to adopt a law on national minorities in line
with their accession commitment; it also urges them to ratify the
European Charter for Regional or Minority Languages (ETS No. 148)
as soon as possible, noting Azerbaijan’s commitment to do so within
one year of its accession to the Council of Europe”.
152. Azerbaijan is home to many national minorities living peacefully
together for centuries. The Advisory Committee of the Framework
Convention for the Protection of National Minorities welcomed overall
the fact that the importance of the protection and promotion of
cultures of national minorities is recognised in Azerbaijan.
153. However, religious minorities report regularly threats, fines,
sporadic incidents of discrimination, restrictions on the ability
to teach in their native languages and harassment by local authorities.
These groups included Talysh in the south, Caucasian Lezghins in
the north, displaced Meskhetian Turks, and displaced Kurds from
the Lachin region.
154. Novruzali Mammadov, a prominent member of the Talysh ethnic
minority and Tolishi Sedo newspaper editor-in-chief,
was arrested on 3 February 2007. According to his lawyer, Mr Mammadov
was beaten while in custody. After a short release on 4 February,
Mr Mammadov was rearrested the day after and sentenced to fifteen
days’ administrative detention for resisting arrest. Mr Mammadov’s
lawyer reported that Mr Mammadov was detained at the Ministry of
National Security rather than in a standard Ministry of Internal
Affairs detention facility. Mr Mammadov was subsequently charged
with “high treason”, remained in pre-trial detention while the government
investigated charges and then released seven months later. Tolishi Sedo was reported to be
the country’s only newspaper published in the Talysh language. Domestic
Talysh organisations considered Mammadov’s case an act of discrimination.
155. Mr Mammadov’s trial before the Baku Court of Grave Crimes,
which was closed to the public, began in December 2007.
6. The
Nagorno-Karabakh conflict
156. On 29 November 2007, prior
to the opening of the OSCE Ministerial Council in Madrid, the co-chair countries
of the Minsk Group strongly urged both parties to endorse a set
of proposed basic principles for the peaceful settlement of the
Nagorno-Karabakh conflict and to start, as soon as possible, to
draft a comprehensive peace agreement. Representatives of the co-chair
countries noted that the two sides had significantly narrowed their
differences and that only a few points remained to be settled. They
estimated that the joint proposal that was transmitted to the parties
“offered just and constructive solutions to these last remaining
differences”. This document is considered to be a significant step
forward, as this is no longer a non-paper but an official proposal
deposited with the chairman-in-office of the OSCE which would serve
as a basis for the future negotiations.
157. On 14 March 2008, the United Nations General Assembly adopted
a resolution on the situation in the occupied territories of Azerbaijan.
The
resolution reads that the General Assembly expresses serious concern
that the armed conflict in and around the Nagorno-Karabakh region
of Azerbaijan continues to endanger international peace and security,
reaffirms Azerbaijan’s territorial integrity, expresses support
for its internationally recognised borders and demands the immediate
withdrawal of Armenian forces from occupied territories.
158. Some 4 604 Azerbaijanis are missing from the conflict over
Nagorno-Karabakh. This is a human rights and a humanitarian issue,
involving the right of the families to know the fate of their loved
ones. The issue continues to poison relations between the two sides,
notwithstanding the fact that it should be treated as a humanitarian
and not a political issue. The steps which the parties are expected
to take to solve this problem are highlighted in Assembly
Resolution 1553 (2007) on missing persons in Armenia, Azerbaijan and Georgia from
the conflicts over the Nagorno-Karabakh, Abkhazia and South Ossetia
regions.
159. The President of Azerbaijan and government officials make
regular comment on the Nagorno-Karabakh conflict, reiterating that
the region will never be independent and underlining the great military
potential of the country. In a statement to the press in April last,
President Aliyev announced the increase by 53% of Azerbaijan’s military
spending in 2008. He added that, in the context of an overall increase
in government spending, defence spending should be increased from
US$1.3 billion to US$2 billion in 2008.
160. On 28 April 2008, four Armenian citizens were arrested in
the Autonomous Republic of Nakhichevan and accused of being spies
while the Armenian authorities claimed that they were ordinary citizens
who had lost their way and crossed the border inadvertently.
161. The Azerbaijani and Armenian Foreign Ministers met in Strasbourg
on 6 May 2008, on the sidelines of the meeting of the Committee
of Ministers. Both Ministers subsequently described their talks
as constructive and reaffirmed their countries’ commitment to seeking
a peaceful solution to the Nagorno-Karabakh conflict. The two Foreign
Ministers also met separately with the French, Russian and American
co-chairs of the OSCE Minsk Group.
162. It is worth recalling that our Committee held a hearing on
frozen conflicts in Berlin on 5 and 6 November 2008 in the course
of which the conflict of Nagorno-Karabakh was also discussed.
