1. Introduction
1. Opinion
222 (2000) on Azerbaijan’s application for membership of the Council
of Europe sets out the obligations that Article 3 of the Organisation’s
Statute requires all member states to meet, as well as a number of
specific commitments that Azerbaijan agreed to fulfil when it joined
the Council of Europe on 25 January 2001.
2. Pursuant to
Resolution
1115 (1997) and in accordance with paragraph 17 of
Opinion 222, the monitoring procedure was commenced immediately
after Azerbaijan’s accession.
The
Monitoring Committee has since then presented to the Parliamentary
Assembly several reports on Azerbaijan’s progress on meeting its obligations
and commitments, and especially on the functioning of its democratic
institutions. These reports resulted in the Assembly’s adoption
of Resolutions 1305 (2002), 1358 (2004), 1398 (2004), 1456 (2005),
1480 (2006), 1505 (2006), 1545 (2007) and 1614 (2008).
3. The Committee on Legal Affairs and Human Rights has also submitted
to the Assembly several reports on the observance of a specific
commitment, such as the obligation to re-try or release individuals
considered as political prisoners.
Developments in the Nagorno-Karabakh
conflict have been monitored by the Political Affairs Committee
and
the Ad hoc Committee of the Bureau. The situation of the refugees
and displaced persons in Armenia, Azerbaijan and Georgia is described
in
Doc. 10835, which led to the Assembly’s adoption of
Resolution 1497 (2006). The issue of displaced persons from Azerbaijan is also
dealt with in Assembly reports of a more general nature, especially
Doc. 11942 and its
Recommendation
1877 (2009) and
Doc. 12105 and its
Resolution
1708 (2010).
The
situation of women in the South Caucasus, including Azerbaijan, is
described in
Doc. 11178, which was discussed at the meeting of the Standing
Committee in March 2007 and led to the adoption of
Resolution 1544 (2007) and
Recommendation
1790 (2007).
4. Moreover, 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 called on the Azerbaijani authorities
to take a number of measures “to find a speedy and permanent solution
to the issue of political prisoners and presumed political prisoners”.
In response to the motion for a resolution on the follow-up to the
issue of political prisoners in Azerbaijan
which was tabled in December 2007,
and regretting the lack of concrete follow-up given to the Assembly’s
recommendations and the absence of results in this matter, the Committee
on Legal Affairs and Human Rights appointed Mr Strässer (SOC, Germany)
rapporteur on this subject.
5. With regard to the monitoring procedure itself, following
Mrs Evgenia Jivkova’s departure from the Parliamentary Assembly,
Mr Joseph Debono Grech was appointed co-rapporteur on the honouring
by Azerbaijan of its obligations and commitments on 18 November
2009.
6. It is against this background that the co-rapporteurs on the
monitoring procedure for Azerbaijan have travelled to Baku on four
occasions: first of all, Mr Herkel and Mrs Jivkova from 4 to 7 February
2008, from 18 to 20 May 2008 and from 7 to 11 April 2009; then Mr
Herkel and Mr Debono Grech from 8 to 11 February 2010. The main
purpose of these visits was to update our information on the democratic
reforms and the progress made on human rights.
7. We met the highest state representatives (the President, the
Speaker of the Parliament, the Minister of Justice, the Deputy Foreign
Minister, the Attorney General and the ombudsman) as well as representatives
of the NGOs and the media, leaders of the opposition parties, representatives
of the international community and diplomats. We also visited several
prisoners to whose cases we draw attention in our reports, including
Mr Novruzali Mammadov, a 68-year-old researcher and linguist and
editor-in-chief of the Talysh-language newspaper, who was then serving
a ten-year prison sentence at Penitential Centre No. 15, where he
has regrettably since died. In February 2010, we met the two activist
bloggers arrested last July, Mr Emin Milli and Mr Adnan Hajizade.
8. We also travelled to the Autonomous Republic of Nakhchivan
in 2009, where we met the President of the Supreme Council of the
Republic of Nakhchivan, the ombudsman and representatives of the
media and NGOs. During our last visit in February 2010, we also
went to Ganja, the country’s second city, where we met various local
players, including the local authorities, the ombudsman, representatives
of the opposition parties and human rights defenders. We would like
to thank the local authorities of these two regions for their hospitality.
9. We wish to express our gratitude to the Azerbaijani Parliament
and, especially, the leader of the Azerbaijani delegation to the
Assembly, Mr Samad Seyidov, and his secretariat, for the excellent
organisation of our visits, which enabled us to engage in frank
and open exchanges of views with the authorities, even at the highest
level. Our thanks also go to Mr Aydin Abbasov, a member of the delegation
and MP for the Ganja constituency, who welcomed us and accompanied
us on our visit to his city. We also thank the Minister of Justice,
Mr Fikrat Mammadov, for his help and support in the organisation
of the prison visits to see several of the detainees mentioned in
Resolution 1545 (2007) or sentenced since the adoption of this resolution.
10. We are also grateful to Mrs Veronika Kotek, Special Representative
of the Secretary General of the Council of Europe to Azerbaijan,
and her staff in the Baku office for their valuable assistance in
the organisation of meetings with representatives of civil society,
the political parties, the media and international organisations, as
well as in the organisation of press conferences.
11. Although Azerbaijan demonstrated at the last elections that
it had made progress with regard to organising the polls themselves,
some systematic shortcomings, including the lack of competitiveness
and genuine political pluralism which need to be redressed are still
persistent. We hope that the questions raised in this report will
be dealt with rigorously by the authorities before the parliamentary
elections planned for November 2010 so as to ensure that they meet
the Council’s standards.
12. This report accordingly discusses the key issues, which are
the state of progress on democratisation after the October 2008
presidential election and the referendum on constitutional changes
held on 18 March 2009, and the situation of human rights and fundamental
freedoms, including the media environment.
13. All these questions are very often closely linked. Moreover,
the democratisation of a society is a long and complex process.
14. Furthermore, we welcome the overall progress achieved by Azerbaijan
in honouring its obligations and commitments undertaken by the country
while acceding to the Council in Europe in 2001. We take note of
the openness shown by the authorities and their willingness to co-operate
in good faith with the monitoring mechanisms of the Council of Europe
to create and strengthen the democratic institutions. We encourage
them on the reforms under way in areas ranging from the rule of
law to the separation of powers.
15. We call on the Azerbaijani authorities to continue enlisting
the expertise of the competent Council of Europe bodies before adopting
crucial reforms for the functioning of the country’s democratic
institutions and, against the background of the forthcoming parliamentary
elections, not to confine themselves to complying with the letter
of the law but focus on its application.
2. Democratisation
16. We believe it is important to place this section
in a broad context and point out that Azerbaijan is currently facing
major challenges associated with its geopolitical and geostrategic
situation. For its part, the Council of Europe has a crucial role
to play to help the country in its efforts to bring about democratisation.
17. In 2009, the main concern among most of the people to whom
we spoke was the improvement in the relations between Armenia and
Turkey, in the absence of a solution to the Nagorno-Karabakh issue.
In Azerbaijan, the signing on 10 October 2009 of the protocols between
Armenia and Turkey on the establishment of diplomatic relations
and the development of bilateral relations is seen as a negative
development and a threat to the region’s stability. The reopening
of the border, which was closed by Turkey in 1993 out of solidarity with
Azerbaijan following the Nagorno-Karabakh conflict between Armenia
and Azerbaijan, is perceived as an injustice in this country, which
has seen its territorial integrity threatened.
18. All parties in Azerbaijan are disappointed with the negotiations
of the Minsk Group aimed at finding a solution to the Nagorno-Karabakh
conflict. The failure to resolve this conflict, which affects the
country’s territorial integrity, is still impeding the democratic
reforms undertaken in the country. The continuing occupation of
these territories and the presence of hundreds of thousand refugees
and IDPs in the country remain a challenge for this country.
19. On 7 November 2010, Azerbaijan will be holding its second
parliamentary elections since it joined the Council of Europe in
2001. The country has also held two presidential elections since
then. Unfortunately, none of those ballots fully met democratic
standards,
even
though considerable progress was noted, especially during the last
presidential election in 2008. We welcome the efforts spared by
the Government of Azerbaijan aimed at further democratising the
country.
20. Our last fact-finding visit took place nine months before
the parliamentary elections planned for 7 November 2010.
21. Most recently, in its judgment of 8 April 2010 in the case
of
Namat Aliyev v. Azerbaijan,
the
Court concluded that the conduct of the electoral commissions and
courts and their respective decisions had revealed a lack of any
genuine concern for the protection of the applicant’s right to stand
for election. The Court noted that what was at stake in the present
case was not the applicant’s right to win the election in his constituency,
but his right to stand freely and effectively for it. The applicant
was entitled under Article 3 of Protocol No. 1 to stand for election
in fair and democratic conditions, regardless of whether he ultimately
won or lost.
2.1. The constitutional reform of
2009
22. During our visits, we regretted that there had been
no prior request for the European Commission for Democracy through
Law (Venice Commission) to issue an opinion on the proposed constitutional amendments,
some of which are very important for the functioning of the country’s
democratic institutions and, especially, its elections.
23. Following the request made by the Monitoring Committee
and the Secretary General
of the Council of Europe, the Venice Commission adopted on 14 March
2009, that is to say just a few days before the vote, an opinion
on the Referendum Law in which it concluded that “[some] amendments,
undoubtedly, constitute important improvements as compared to the
existing Constitution and they must be welcome”.
At the same time,
there is cause for concern regarding certain unfavourable developments
concerning democratic practices in view of the present situation
in Azerbaijan. The Venice Commission states that “[the] draft constitutional amendments
contain a range of sectoral changes in the form of 29 questions
to which each voter will have to respond by either yes or no. Although
one can easily identify the main issues raised by the reform …,
a sense of coherence of the reform as a whole seems to be lacking.
As a result, it is at times difficult to understand the purpose,
necessity and/or interrelations of certain changes. For example,
some changes only involve a modest adaptation in terminology … while
others significantly affect the overall distribution of powers between
the branches of state powers”.
24. Some of the constitutional reforms proposed contained innovations
that should be welcomed. There appears for instance to be a laudable
attempt in last year’s reform to guarantee greater transparency
in public affairs through the entrenchment of the principle of public
access to the sessions of the parliament and the obligation to publish
the decisions of the Supreme Court and Constitutional Court and
the laws enacted. Furthermore, the amendments proposed to Article
96 of the constitution, which extend the right of legislative initiative
to 40 000 citizens are to be welcomed.
25. The main concerns raised by the reforms relate to the abolition
of the two-term limit to the office of President and to the President’s
position. Under the previous provisions, the President could only
be elected for two consecutive terms, and the amendment abolished
the limit to the number of terms. In the Venice Commission’s opinion
“Azerbaijan, the Constitution of which provides for a Presidential
system of Government, is undoubtedly a country where the President
concentrates extensive powers in his hands, given the few checks
and balances which exist. It was therefore logical that the original
text of the Constitution of Azerbaijan provided for a two-term limit.
… As a rule, it can be said that the abolition of existing limits
preventing the unlimited re-election of a President is a step back,
in terms of democratic achievements. … Explicit constitutional limitations
on the successive terms of a president are particularly important
in countries where democratic structures and their cultural presuppositions
have not yet been consolidated.”
26. Other issues of concern apart from the abolition of the two-term
limit to the office of President include the extension of the term
of the Milli Mejlis and the President in the case of military operations
and changes concerning the local government bodies, in breach of
the European Charter of Local Self-Government.
Moreover,
the Venice Commission believes that with the restrictions on the
rights and freedoms guaranteed by the constitution in the current
wording of the proposed amendment to Article 32(III), and bearing
in mind the general context of media freedom and the activities
of journalists in Azerbaijan, “there is a strong risk that this provision
be implemented in a way contrary to Article 10 of the European Convention
on Human Rights (ECHR)”.
27. Nonetheless, on 2 April 2009, just before our visit, President
Aliyev signed a decree instructing his administration to draft laws
for the implementation of some of the amendments adopted by referendum
(these laws relate, for example, to the changes to Articles 17,
25, 32, 48, 71, 72, 84, 96, 101, 125, 129, 131, 146 and 149 of the
constitution) and to submit them to the Venice Commission. The Venice
Commission pointed out that its opinion on the Referendum Law was
based on the text of the constitutional amendments and could not cover
laws that would be adopted with respect to the implementation of
those amendments. It did, however, point out that some of the concerns
it had expressed in its opinion would no longer apply if the relevant
laws were adopted.
28. The current presidential administration was confirmed in its
mandate by a wide margin in the 18 March 2009 referendum on the
amendments and the additions to the constitution. The final results
of this referendum, in which 70.83% of the voters took part, were
announced by the Central Electoral Commission (CEC) on 30 March.
The 41 amendments presented in 29 questions were accepted, with
the percentage of “Yes” votes between 87.15% and 91.76%.
29. We welcome the President’s decision to submit the draft implementing
laws to the Venice Commission for opinion and once again call on
the Azerbaijani authorities to ask for the Venice Commission’s opinion
before adopting any important legislation.
To date, the Venice Commission
has been asked to issue two opinions since the constitutional reform,
which were adopted in December 2008: the “opinion on the draft law
on additions to the law on the status of the municipalities of the
Republic of Azerbaijan”
and
the “opinion on the draft law about obtaining information on activities
of the courts of Azerbaijan”.
30. The authorities have promised to take this step before the
parliament passes the law on conflicts of interests, which will
be crucially important for the proper functioning of the country’s
democratic institutions.
2.2. Previous elections since 2008
31. The ad hoc committee of the Parliamentary Assembly,
which observed the election process, concluded that the results
of the presidential election held on 15 October 2008 in the Republic
of Azerbaijan “were the reflection of the will of that country’s
electorate”. The voter turnout was 75.64% and the election was won
by Mr Ilham Aliyev, who obtained 88.73% of the votes cast.
32. In general, the election took place in a calm and orderly
climate, but on election day in some constituencies some violations
were noted during the counting and, in particular, the tabulation
of the votes.
It
is also regrettable that five political parties did not take part
in the election. There is still no real competition in the country
between the platforms and political ideas.
33. A delegation from the Parliamentary Assembly went to the country
to monitor the referendum, published a statement on the day after
the ballot
in which they
concluded that “the result of the referendum shows the willingness
of the people of Azerbaijan to have greater stability and elements
for further democratisation; a better balance of power will nevertheless
require further reforms in the future”.
34. Municipal elections held on Wednesday 23 December 2009 were
observed by an 11-person delegation of the Congress of Local and
Regional Authorities of the Council of Europe (“the Congress) at
the invitation of the Azerbaijani authorities. The delegation concluded
that the elections were generally
well prepared from the technical point of view and that they had
passed off in a calm and orderly atmosphere. Although it welcomed the
considerable progress made in relation to previous local elections,
it did raise three issues of concern:
- the lack of genuine political pluralism among the parties;
there were few candidates who represented an opposition; the campaign
was not very active (either in the streets or on television);
- the candidate registration process and vote counting procedure
(owing to incidents in some polling stations);
- the situation of territorial democracy in Azerbaijan.
35. In its preliminary draft resolution and preliminary draft
recommendation approved by the Bureau of the Congress on 5 February
2010,
the
Congress called on the Parliamentary Assembly to take the above recommendation
into account under its procedure for monitoring the honouring of
obligations and commitments by Azerbaijan.
36. Apart from the recommendations specific to local self-government,
especially the municipality of Baku, the Congress raised some points
that we consider vital for the preparation of the forthcoming parliamentary elections:
“– the overall political situation
in Azerbaijan, as a result of the weakness of the opposition which became
evident on election day, led to the scarcity of opposition candidates;
- there were few visual signs of a lively election campaign
in the media, in particular television, by candidates;
- the low-key campaign, in the streets and on TV resulted
in a low turnout; the Congress considers this low participation
as an alarming signal;
- a number of buildings where polling stations were located
are not easily accessible to persons with disabilities and elderly
people”.
37. On 11 January 2010, the CEC confirmed the results of the municipal
elections of 23 December 2009. The results were invalidated in 33
polling stations, representing nine municipalities. Some 18 polling
stations and two district electoral commissions were dissolved and
two chairs of district commissions were dismissed. Out of 30 963
candidates – including 6 108 women – 15 591 of the 15 682 municipal
councillors were elected, including 4 074 women (26.1% of the total
number of councillors elected). The ruling Yeni Azerbaijan (YAP) party
is now represented by 66.9% of the municipal councillors. Some 18
other political parties won 5.35% of the seats.
38. We appreciate, as a positive step forward, in comparison with
previous elections, the substantial increase of woman (26.5%) and
youth (27.6%) representation among members of municipalities elected
as a result of the 23 December 2009 municipal elections, which is
an indication of a more active participation of women and youth
in the public-political life of the country.
2.3. Reform of the Electoral Code
39. The Azerbaijani authorities requested the Venice
Commission’s help in the reform of the country’s Electoral Code
just before the partial elections of May 2006. The consultations
continued until February 2008, after which the Venice Commission
adopted a joint opinion with the OSCE/ODIHR on the draft amendment
to the Electoral Code of the Republic of Azerbaijan at its 75th
plenary session in Venice on 13 and 14 June 2008.
40. Before that, a joint interim opinion with the OSCE/ODIHR on
these draft amendments was adopted in advance on 14 and 15 March
2008 to enable Azerbaijan to take account of these recommendations
before the amendments were passed by parliament. On 2 May 2008,
the President of Azerbaijan presented a draft law on the amendments
to the Electoral Code and it was subsequently passed by parliament
on 2 June 2008.
41. In its opinion, the Venice Commission held that “the amendments
address some recommendations and are a positive development. However,
the extent to which any amendments to the law can have a positive impact
will ultimately be determined by the level of good faith and political
will exhibited by state institutions and authorities responsible
for implementing and upholding the law”. It went on to say that
“some previous recommendations are not addressed in the amendments
or are addressed only to a limited degree”.
42. Still, according to the Venice Commission, the current Electoral
Code remains 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.
43. 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,
candidate registration, observers, the electoral roll and its accuracy,
as well as the complaints and appeals procedures.
44. The CEC is made up of 18 members elected by the parliament
(six representatives each of the majority party, the opposition
parties and the independent MPs). Some 16 members have already been
elected and the CEC has reached the quorum required for it to operate,
but the parties have yet to agree on the appointment of the last
two members.
2.4. Preparation of the parliamentary
elections on 7 November 2010
45. The opposition parties still play a less active political
role than in previous years. The aftermath of the November 2005
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.
46. We have urged all political parties to take part in the elections
and stressed not only the importance of the adoption and proper
implementation of the law on freedom of assembly but also the freedom
of the media in the light of the forthcoming parliamentary elections.
We have called on the Azerbaijani authorities to pass on a clear
message, in time for the 2010 parliamentary elections and at the
highest political level, that electoral fraud will not be tolerated.
We expect Azerbaijan to fully meet the Council of Europe commitments
and standards for democratic elections.
47. In order for genuine democracy to be established, the members
of the opposition whom we met want the Electoral Code and the composition
of the electoral commissions to be revised, freedom of assembly
in the capital and in the regions to be unrestricted, all alleged
political prisoners to be released, media pluralism to be ensured
and normal conditions established for the activity of political
parties.
48. 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.
49. Since the country’s accession to the Council of Europe, the
Parliament of Azerbaijan has reinforced its position vis-à-vis 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 with a strong presidential system. As previous
monitoring reports have stressed, it is still necessary to reinforce
the actual application of the constitutionally guaranteed principle
of the separation of powers and, especially, to strengthen the parliament’s role
vis-à-vis the executive.
50. Our interlocutors from opposition parties complained about
restrictions on their freedom of assembly. The situation is said
to be sometimes worse in the regions where local authorities take
action to prevent routine party activities. They reported that police
officers often dispersed small gatherings at tea houses and detained participants
for questioning.
51. They all complained about the difficulties encountered in
holding meetings or even in putting their names down on lists of
candidates when elections are held.
According to them, some candidates
have been forced to withdraw their candidatures, especially at the
last municipal elections, for fear of being dismissed or of threats
being made to them or their family. The owners of potential premises
face the particular threat of losing their job or of family members
losing their jobs and therefore refuse to rent out their premises
to house their party’s headquarters. Only the UMID party has succeeded
in keeping its headquarters in Ganja, in premises rented by people
living abroad.
52. 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 in the registration deposit, raising it 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.
53. An action plan to support the 2010 parliamentary elections
in Azerbaijan is likely to be adopted by the Ministers’ Deputies
at their 1080th meeting on 24 March 2010. The aim of this programme
is to deal with the most important issues, especially in several
areas of focus that have been identified in co-operation with the Azerbaijani
authorities and in liaison with other international institutions
and where improvements are considered necessary. The issues involved
are legislative aspects, the training of election administration
staff, questions relating to the media, raising voter awareness
of electoral issues, and the organisation of public debates.
3. Human rights and fundamental
freedoms
3.1. Media pluralism and freedom
of expression
54. On 17 December 2009, the European Parliament, in
its resolution on freedom of expression in Azerbaijan, voiced its
“concern about the deterioration of media freedom in Azerbaijan,
deploring the practice of arresting, prosecuting and convicting
opposition journalists on various criminal charges, as demonstrated
in the case of Eynulla Fatullayev. It calls on the Azerbaijani authorities
to release the imprisoned journalists immediately.”
55. With regard to trials, human rights defenders and journalists
have complained about the lack of impartiality in the court proceedings.
56. We reiterate the call for the decriminalisation of defamation,
in line with the trend that can be seen at the international level
and with the case law of the European Court of Human Rights, and
we ask the authorities to refrain from bringing any new prosecutions
against journalists for defamation. We consider that the extent
of the criminal penalties imposed by the courts in defamation cases
sometimes seems disproportionate and we call on the competent courts
to ensure that any penalties imposed are proportionate to the offences established.
57. We received the explanation form the authorities that the
real problem behind the arrests of journalists is their lack of
professionalism. However, we call on them to continue organising
public debates on decriminalising defamation with the view of enacting
relevant legislation in the future. We take note of the calls made
by the authorities to the Committee of Ministers and other international
organisations to contribute to the training of journalists and judges
in this regard.
58. We would reiterate that, in response to the initiative of
the Committee of Ministers’ Monitoring Group (GT-SUIVI-AGO), a programme
aimed at improving the professionalism of journalists was launched
in Azerbaijan in 2008 with the assistance of the BBC. The Council
of Europe could also examine other proposals that might be made
to it with the same aim in mind.
59. We commend the efforts of the Government of Azerbaijan to
strengthen the capacity and economic independence of the media,
which is one of the prerequisites for independent and professional
journalism. We take note of the creation of the Fund for State Support
to Mass Media in April 2009 and encourage its use for support of
independent investigative journalism and not only to award those
who are loyal to the authorities. We call on the Government of Azerbaijan
to continue this practice and seek enhanced co-operation with leading
international institutions in this field.
60. We welcomed the fact that a presidential pardon decree of
28 December 2007 led to the release of six journalists.
61. On the eve of the 17 March 2009 referendum, the parliament
passed an amnesty law on the occasion of the Feast of Novruz. The
law applied to nearly 9 000 people (or about 35% of the total prison
population) of whom 1 700 were released and 1 200 had their sentences
reduced. The rest had their type of sentence changed.
62. We welcome the fact that the well-known journalist and poet
Mirza Zakit came within the ambit of the recent amnesty law. He
was released during our visit, on Tuesday 9 April 2009, two months
before the end of his sentence, after spending thirty-four months
in prison. Mr Zakit was one of the imprisoned journalists mentioned
in several Parliamentary Assembly resolutions that called for their
swift release.
63. On 11 April 2009, Ali Hasanov, editor-in-chief of the Ideal newspaper, was also released.
64. We welcome the release of Mr Mushvig Huseynov, a correspondent
of the Bizim Yol newspaper, together
with 99 other prisoners following the presidential pardon of 25
December 2009.
65. We also welcome the latest Pardon Decree of the President
of the Republic of Azerbaijan, dated 16 March, 2010, which released
62 prisoners. It is important that among those pardoned is Mr Ganimat
Zahidov, the editor of Azadliq,
one of the main independent newspapers, whose name was mentioned
in previous Assembly resolutions.
66. At the end of 2009, Mr Fatullayev was prosecuted again after
the discovery of drugs found on him at his place of detention. On
31 December last, the Court of the Baku’s Garadag district sentenced
him to two months’ provisional detention under Section 234.1 of
the Azerbaijan Penal Code (illegal preparation, purchase, storage
and sale of narcotics). On 29 December, officials from the Penitential
Centre of Penitential Colony No. 12, where Mr Fatullayev has been
serving a sentence of eight and a half years since 3 October 2007
for “threatening terrorism”, “inciting racial hatred” and “tax evasion”,
declared they had found 0.22 grams of heroine in his sleeve and
shoe during a search. Given these accusations, Mr Fatullayev could
be sentenced to three more years’ imprisonment. The hearings started
in April 2010 and were still going on at the time of the drafting of
this report.
67. Meanwhile, in its judgment of 22 April 2010 in the case of
Fatullayev v. Azerbaijan, the
European Court of Human Rights unanimously found violations of Article
10 of the Convention in respect of the applicant’s first criminal
conviction, of Article 10 of the Convention in respect of the applicant’s
second criminal conviction, of Article 6, paragraph 1, of the Convention
(the applicant’s fear of the judge’s lack of impartiality could
be considered as objectively justified), and of Article 6, paragraph
2, of the Convention (as regards the statement made by the Prosecutor
General to the press on 31 May 2007 amounted to an infringement
of the applicant’s right to the presumption of innocence).
68. Of particular importance is the conclusion reached by the
Court under Article 46 of the Convention: “the Court held that the
respondent state shall secure the applicant’s immediate release”.
According to the Court, in such
circumstances, in view of the above findings of violations of Article
10 of the Convention, it is not acceptable that the applicant still
remains imprisoned, since the case does not leave any real choice
as to the measures required.
69. This judgment will become final in three months, unless it
is referred to the Grand Chamber by the Azerbaijani authorities.
70. As well as various human rights defenders, we met Mr Fatullayev’s
lawyer, who has expressed some serious doubts concerning the truth
of the allegations and the conditions in which the drug was found.
Mr Fatullayev has filed another application to the European Court
of Human Rights in which he complains about violations of his right
to a fair trial.
71. On 11 November 2009, the court of the Baku’s Sabail district
sentenced two activist bloggers, Mr Emin Milli and Mr Adnan Hajizade,
to two years and six months’ and two years’ imprisonment respectively.
They were found guilty under Sections 127.2.3 (deliberate light
bodily injuries) and 221.2.1 (hooliganism) of the Penal Code. The
international community, including the Council of Europe,
reacted
strongly to this decision. The OSCE Representative on Freedom of
the Media, Miklos Haraszti, described the sentencing of the two activist
bloggers “as political”.
Both
co-rapporteurs, during their visit in February 2010, visited these
two activists in jail. They stated not to have any complaints about
the conditions of their detention.
72. We reiterate the appeal made by the Parliamentary Assembly
for the release of all the other imprisoned journalists.
73. We wish to draw attention at this point to the death of Novruzali
Mammadov, a researcher and linguist and editor-in-chief of the only
Talysh-language newspaper,
Tolyshi Sado.
He was moved to Provisional Detention Centre No. 1 at the strict
regime Penitential Centre No. 15, where he was put in a disciplinary
cell. His case was mentioned in the last report on the functioning
of the democratic institutions in Azerbaijan,
and his
name is on the list of political prisoners drawn up by the Azerbaijan
Federation of Human Rights Organisations.
74. At the time of our visit, there were three sets of judicial
proceedings pending against Mr Mammadov: two before the Supreme
Court (appeals filed on 29 March 2009 against his conviction for
spying for Iran and against the destruction of his manuscripts)
and
one before the Baku Court of Appeal concerning his being placed
in a disciplinary cell at the penitential centre. As far as this
latter appeal is concerned, the court held that the prison service
had breached certain rules but considered his complaint about torture
and maltreatment ill-founded.
75. With regard to the prison itself, the Director of Penitential
Centre No. 15 was dismissed by the Minister of Justice in mid-February
2009 for disciplinary reasons. The new director seemed to have adopted
a different approach to the prisoners, who are now treated better.
76. We welcome the efforts by the authorities to direct major
investments in improving prison infrastructure through establishing
new penitentiary facilities. We also take positive note of the measures
taken by relevant government institutions to address prison overcrowding
via the introduction of a system of probation and alternatives to
imprisonment and through facilitating the social re-integration
of prisoners once they have served their sentences.
77. We also welcome the decision by the Azerbaijani authorities
to authorise the publication of the report of the last visit to
Azerbaijan by the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (CPT).
78. All interlocutors concerned were waiting for the judgment
to be delivered by the Strasbourg Court in the case of Fatullayev v. Azerbaijan. This judgment
is the first on the subject of fair trials in the country.
79. In this connection, we have observed a tendency among the
authorities to rely on the Strasbourg Court to rectify the shortcomings
of the national appeals procedures. They show a willingness to co-operate
on executing the Court’s judgments but we cannot stress enough the
need to undertake new reforms and modernise the judicial system
to avoid an increase in the number of judgments against Azerbaijan.
80. We encourage Azerbaijan to continue furthering reforms in
the field of judiciary. We take note of the achievements in this
field, especially the setting up of an Academy of Justice to train
judges, prosecutors and lawyers and sanctions imposed on judges
found guilty of corruption.
81. We experienced an example of the dysfunctional nature of the
Azerbaijani courts during our visit in 2009. On 7 April 2009, Mr
Asif Merzili, editor-in-chief of the Tezadlar newspaper,
was sentenced to twelve months’ imprisonment under Section 147 of
the Penal Code (defamation) and arrested in the courtroom (a second person,
a journalist, was sentenced to six months of corrective labour for
the same offence). Behind this conviction was the action brought
by the rector of Azerbaijan’s private International University for
an article condemning the illegal admission of students and the
issuing of bogus degrees. We expressed our concerns about this new
arrest of a journalist, in response to which the authorities themselves
indicated that they were also worried and President Aliyev issued
a public statement in which he regretted the imprisonment of the journalist.
The appeal was heard on 9 April 2009 and ended in Mr Merzili’s acquittal
and release. A warning was issued to the trial judge. This case
once again raises the question of the decriminalisation of defamation in
the country.
82. We also wish to cite the example of the legal proceedings
instituted on 13 December 2008 by the Interior Minister, Ramil Usubov,
against Ms Leyla Yunus, Director of the Institute for Peace and
Democracy in Azerbaijan. We welcome the fact that Mr Usubov withdrew
his complaint on 2 March 2009.
83. We are convinced that the decision of the European Court of
Human Rights in the Fatullayev v. Azerbaijan case
is of crucial importance for the functioning of the Azerbaijani
judicial system and hope it will lead the authorities to refrain
from arresting, prosecuting and convicting independent or opposition
journalists on various bumped up criminal charges as demonstrated
in the case of Eynulla Fatullayev.
3.2. Independence of the media
84. As far as the pluralism of the electronic media is
concerned, Azerbaijan undertook when it joined the Council of Europe
to turn the national television channel into a public channel run
by an independent board of directors. In June 2007, the Council
of Europe forwarded to the Azerbaijani authorities an expert opinion
on the draft law on radio and television broadcasting and on the
presidential decree approving the regulations of the National Television
and Radio Broadcasting Council (NTRBC). In this expert opinion,
the Council of Europe welcomed several provisions of the law that
constituted genuine progress but emphasised a major problem, namely
the fact that the state seems to have too great an involvement in
broadcasting. The law provides for targeted state programmes and
other direct state intervention in the field of broadcasting and
the broadcasting council’s funding comes directly from the state
budget.
85. We regret that this expert opinion has not been followed up
and are convinced it is necessary to revise these legal instruments
in order to guarantee the independence of the electronic media and
their regulatory authority, the NTRBC. We would also point out once
again that pluralism and the impartiality of news and information
programmes, especially in the public media, are essential for the
holding of free and fair elections that meet the standards of the
Council of Europe.
86. The Chair of the NTRBC confirmed to us that the situation
remains somewhat blurred since the council is not treated as a public
administration body (notably as regards increases in civil servants’
salaries), but could not establish its own budget either. He also
said that the council often invited leaders of political parties
to participate in various programmes but they refused to do so.
87. For their part, media representatives, representatives of
the opposition parties and human rights defenders that we met complained
that the electronic media were controlled by the NTRBC, which considered it
its duty to control the information broadcast on the Internet in
order to ensure that regulations and the law were also complied
with in the case of this medium.
88. Moreover, all the media representatives we met spoke about
an economy monopolised, to the extent that the lack of a free newspaper
advertising market hindered the development of a free and pluralist
press in the country.
89. We are concerned about reports we have received on the Co-ordination
Council recently set up by the Ministry of Communications and Technologies,
which is said to be currently working on a plan to limit Internet access.
Some media representatives expressed the view that, if implemented,
this plan could lead to further restrictions on freedom of expression
in the country.
3.3. Freedom of assembly and association
90. In paragraph 8.7 of its
Resolution 1545 (2007), the Assembly welcomed the fact that the Azerbaijani authorities
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 commission and take appropriate measures to ensure that the
implementation of the relevant legislation respected the guarantees
of Article 11 of the European Convention on Human Rights as interpreted by
the European Court of Human Rights. Violations of freedom of assembly
and the excessive use of force by law enforcement agents should
be stopped. It noted that ongoing training efforts in this respect
were particularly welcome.
91. The Azerbaijani authorities have definitely begun to work
with the Venice Commission on reforming the 1998 law governing freedom
of assembly, which provided for numerous cases in which holding
a meeting was systematically prohibited. The authorities put forward
draft amendments to the Venice Commission, which approved an opinion
on them at its session in December 2007.
The
new law was adopted on 30 May 2008, and its implementation remains
the key element, especially in connection with the preparations
for next November’s parliamentary elections.
92. Our interlocutors representing human rights defenders and
the opposition parties complained that most public gatherings and
demonstrations had to be cancelled at the last minute following
a decision by the local administration to change the venue. In some
cases, demonstrations had been interrupted by the police and the leaders
of the groups concerned had been arrested, in most cases only for
a short period.
93. We hope that once parliament has passed the revised law on
freedom of assembly the authorities will concentrate on the introduction
and application of awareness-raising measures and will provide the
appropriate training for the competent authorities, which is crucially
important, especially in the context of the forthcoming elections.
94. On 21 December 2009, President Aliyev signed a decree approving
the NGO Law passed by the Azerbaijani Parliament on 30 June 2009,
which sets registration requirements higher than for entrepreneurship.
This decree adds a section to the law requiring the NGOs to declare
all their funds to the Ministry of Justice in advance. This section
has raised the NGOs’ concerns regarding the question of time limits and
obstacles to the activities.
95. Finally, a number of complaints from NGO representatives were
reported to us concerning restrictions allegedly imposed on the
operation of religious organisations. At a meeting with the Interior
Minister, we pointed out the complaints from Jehovah’s Witnesses
about the difficulties they faced in holding meetings in certain regions,
to which the minister replied that the police only intervened in
places where those meetings were not being held in compliance with
the law.
96. We also received alarming reports about the situation of human
rights and freedoms in the Nakhchivan Autonomous Republic remaining
tense in 2009 as in previous years.
97. Mr Herkel visited the Nakhchivan Autonomous Republic on 10
April 2009. This was the second visit by a rapporteur of the Monitoring
Committee since Azerbaijan’s accession,
accompanied
by Ms Veronika Kotek, Special Representative of the Secretary General
in Baku.
98. This one-day visit allowed a very limited number of meetings,
which included the Chairman of Nakhichevan Republic Supreme Council,
the ombudswoman and representatives of media and NGOs. As regards
local democracy, the system remains unchanged since the first visit
of a representative of the committee although the economic development
has allowed a great growth in the republic which is now exporting
energy to neighbour countries. The enclave remains a witness and
victim of the Nagorno-Karabakh war with neighbouring Armenia. One
of the consequences of the isolation of the enclave is very slow
progress in the human rights situation. The institution of ombudsperson
for example was set up together with the other regional institutions
but remains cut off from the national ombudsperson, who regretted
the lack of contact with her colleague from the Nakhchivan Autonomous
Republic.
99. The programme also included a visit to the prison. It consists
of brand new facilities opened this and last year respectively,
which seem of high standard from the infrastructural point of view.
The facility can hold some 450 inmates, though currently they only
have some 42, with a total staff of around 100. They expect that
200-250 inmates will be transferred there in the middle of this
year. The authorities intend to transfer the Nakhchivanis currently
serving prison terms around Baku to these premises.
100. Cases of harassment of journalists who are subject to serious
pressure from the authorities are repeatedly reported. On 16 January
2009, regional correspondent of Turan News Agency and “Azadliq”
radio (Liberty) Malahat Nasibova, correspondents of Reporters Freedom
and Safety Institute for Nakhchivan, Elman Abbasov and H. Mehdiyev,
were subjected to physical pressure in the village of Heydarabad
in Sadarak region when investigating the human rights situation
there following events of unrest in the village.
101. On 14 and 26 April, opposition parties Musavat and the Azadliq
bloc attempted to stage rallies protesting restrictions imposed
on freedom of assembly. The unauthorised pickets took place in front
of the Baku Local Executive Power and were quickly dispersed by
police. Similar developments occurred on 30 April, marking the 1st
anniversary of the shooting tragedy at the State Oil Academy (which
left 12 dead and some 13 wounded), when youth activists attempted
to hold their own commemoration. Again, police intervened immediately.
4. Conclusions
102. We welcome the openness for co-operation expressed
by the authorities and urge them to continue to enlist the Organisation’s
assistance.
103. We call on them to continue their efforts to establish all
the conditions necessary for holding free and fair elections, especially
in connection with the action plan proposed in collaboration with
the Council of Europe.
104. The co-rapporteurs will prepare a report on the monitoring
of Azerbaijan’s obligations and commitments after the election,
for presentation to the Assembly in 2011.