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Resolution 2062 (2015)
The functioning of democratic institutions in Azerbaijan
1. The Parliamentary Assembly acknowledges
the complex geopolitical context of Azerbaijan as it tries to balance
its relations with the European Union, Turkey, Iran and its other
Caspian Sea neighbours, the Russian Federation and the United States.
Azerbaijan has managed to maintain an independent and diversified
foreign policy position, in particular due to its sizeable energy
resources and strategic location on the Caspian Sea. The Assembly
is fully aware of the Nagorno-Karabakh conflict, which dominates
to a large extent the Azerbaijani foreign policy agenda.
2. The Assembly takes note of the authorities’ concerns over
the security and the stability of the country due to alleged threats
from abroad, in particular the alleged risks to Azerbaijan from
the situation in some other European countries. In this context,
Azerbaijan is a particularly important country with its energy resources playing
a pivotal role, particularly as the European Union is seeking to
diversify away from Russian energy supplies. This has considerably
strengthened Baku's strategic position in recent months.
3. It notes that the Azerbaijani institutional structure grants
particularly strong powers to the President of the Republic and
the executive. In addition to the limited competence of the Milli
Mejlis under the constitution, the Assembly draws attention to the
fact that not all opposition forces are represented in parliament,
which is detrimental to true political dialogue and effective parliamentary
oversight. This is mainly due to the electoral system, which is
a one-round majoritarian system, similar to that of the United Kingdom,
which favours both the ruling party and independent candidates.
Moreover, as the opposition in Azerbaijan is very divided and opposition
candidates are often competing against each other, they weaken each
other. The Assembly is therefore convinced that it is in the best
interests of the democratic process and the ruling party itself
to confront opposition parties in a representative body, and calls
on the authorities to develop an environment favourable to political
pluralism and increased parliamentary control over the executive
in order to guarantee checks and balances.
4. In November 2015, Azerbaijan will hold parliamentary elections.
The Assembly regrets that some of the most important recommendations
of the European Commission for Democracy through Law (Venice Commission),
particularly those regarding the composition of the electoral commissions
and candidate registration, have not been addressed. It recalls
that the authorities responsible for the administration of elections
should function in a transparent manner and maintain impartiality
and independence. Effective remedies are essential to ensure trust
in the electoral process. During the 2013 presidential election
in Azerbaijan, the election observation delegations of the Parliamentary
Assembly of the Council of Europe and the European Parliament observed
a free, fair and transparent electoral process overall around election
day, improvements being still desirable with regard to the electoral
framework. The Assembly, however, calls on the Azerbaijani authorities
to take the necessary measures to avoid the shortcomings highlighted
during previous elections, such as the adoption of court decisions
that were not fully reasoned and had no legal basis and the lack
of true judicial supervision. The Assembly recognises the important
contribution that it has made in promoting democracy in Azerbaijan
through election observation missions. The Assembly believes that
it is as important as ever to continue carrying out its monitoring
work. In the event of the inability of other observation teams to
participate, the Assembly should consider increasing the Council
of Europe's contribution for the forthcoming parliamentary elections
to ensure effective scrutiny of the election process.
5. The Assembly recalls that the independence of the judiciary
is one of the basic preconditions of the separation of powers and
of the system of checks and balances. It welcomes the recent legal
amendments with regard to the judiciary, and in particular the new
rule stipulating that judges of the Supreme Court must retire at
the age of 68 and judges of all other courts at the age of 66, and
the removal of the former regulation allowing the extension of judicial
tenure for some judges up to the age of 70. It nevertheless encourages
the authorities to further ensure full independence of the judiciary
and, in particular, to prevent influence and interference by the
executive branch. The Judicial Legal Council should be composed
either exclusively of judges, or of at least a substantial majority
of judges elected by their peers. It is recommended that the role
of the Judicial Legal Council in the appointment of all categories
of judges and court chairpersons be further increased. Similarly,
while acknowledging the recent legal amendments reducing the length
of the probationary period for judges from five to three years,
the Assembly recalls that the Venice Commission has constantly opposed
probationary periods for judges and only tolerates them under strict
conditions.
6. Despite these efforts, the lack of independence of the judiciary
remains a concern in Azerbaijan, where the executive branch is alleged
to continue to exert undue influence. Dubiously motivated criminal
prosecutions and disproportionate sentences remain a concern. Fairness
of trials, equality of arms and respect for the presumption of innocence
are other major concerns. The Assembly is concerned about the use
of pre-trial detention as a means of punishing individuals for criticising
the government, as stated by the European Court of Human Rights
in its judgment in the case of Ilgar
Mammadov v. Azerbaijan, in which it found a violation
of Article 18 of the European Convention on Human Rights (ETS No.
5, “the Convention”).
7. A slight decrease in the levels of corruption has been noted
as a result of several important reforms and national and international
state programmes. The Assembly welcomes the reduction of the level
of corruption, especially due to daily services provided by the
network of public service halls known as ASAN centres. While supporting
the country's efforts to promote transparency and fight corruption,
the financing of terrorism and money laundering, the Assembly urges
the authorities to create a good balance between the rights of association
and freedom of expression, as guaranteed by the Convention, and
the State's legitimate fight against organised crime.
8. In the light of the above, the Assembly calls on the authorities
to review the law on non-governmental organisations (NGOs) with
a view to addressing the concerns formulated by the Venice Commission
and creating an environment conducive to the work of civil society.
It is indeed worrying that the shortcomings in the country’s NGO
legislation have negatively affected NGOs’ ability to operate. The
strict control of NGOs by State authorities is likely to interfere
with the right to freedom of association guaranteed by Article 11
of the Convention. In this regard, the Assembly condemns the crackdown
on human rights in Azerbaijan where working conditions for NGOs
and human rights defenders have significantly deteriorated and some
prominent and recognised human rights defenders, civil society activists
and journalists are behind bars. The Assembly calls on the Azerbaijani
authorities to ensure objective trials of the cases of these detained
people. At the same time, the Assembly takes note of the adoption
of the Law on Public Participation, which establishes public control
over central and local executive powers and local self-governing
bodies, thus ensuring the participation of civil society institutions
in decision-making processes.
9. The Assembly is deeply concerned about the increasing number
of reprisals against independent media and advocates of freedom
of expression in Azerbaijan. In this regard, it deplores the arbitrary
application of criminal legislation to limit freedom of expression,
in particular the reported recent use of different criminal laws against
journalists and bloggers, and recommends taking the measures necessary
to ensure a genuinely independent and impartial review by the judiciary
of cases involving journalists and others expressing critical opinions.
10. The Assembly is alarmed by reports by human rights defenders
and international NGOs, confirmed by the Council of Europe Commissioner
for Human Rights, concerning the increase in criminal prosecutions against
NGO leaders, journalists, lawyers and others who express critical
opinions, based on alleged charges in relation to their work, especially
human rights lawyer Intigam Aliyev; Anar Mammadli, the head of an
election monitoring group; veteran activist Leyla Yunus and her
husband Arif Yunus; Rasul Jafarov, founder of the “Sports for Rights”
campaign; and journalists Khadija Ismayilova and Rauf Mirgadirov.
The Assembly calls on the authorities to end the systemic harassment
of those who are critical of the government and to release those wrongfully
detained. The Assembly shares the concerns voiced by the Commissioner
for Human Rights on the judicial system. The Assembly welcomes the
resumption of the activities of a Joint Working Group on Human Rights
Issues, composed of representatives of civil society, prominent
human rights activists, Council of Europe representatives and representatives
of the authorities, following the agreement between the Council
of Europe Secretary General and the President of the Republic of
Azerbaijan in August 2014.
11. Taking these concerns and developments into account, the Assembly
calls on the Azerbaijani authorities to:
11.1. put an end to systemic repression of human rights defenders,
the media and those critical of the government, including politically
motivated prosecutions; allow for effective judicial review of such attempts;
and ensure that the overall climate can become conducive to political
pluralism ahead of the forthcoming elections in November 2015;
11.2. fully implement the judgments of the European Court of
Human Rights, in conformity with the resolutions of the Committee
of Ministers;
11.3. with regard to checks and balances, reinforce the effective
application of the constitutionally guaranteed principle of the
separation of powers, and in particular:
11.3.1. strengthen
parliamentary control over the executive;
11.3.2. ensure full independence of the judiciary, especially
with regard to the executive;
11.4. with regard to elections:
11.4.1. speed up the
implementation of the outstanding recommendations of the Venice Commission
and the decisions of the Committee of Ministers on the execution
of the judgments by the European Court of Human Rights in the Namat
Aliyev group of judgments, in time for the forthcoming elections,
and in particular:
11.4.1.1. take the necessary measures to
resolve the problems revealed by the Court’s judgments as regards
the independence, transparency and legal quality of procedures before
the electoral commissions;
11.4.1.2. further improve the system of monitoring the conformity
of the elections in order to prevent any arbitrariness and allow
for effective judicial supervision over the procedures;
11.4.1.3. continue the reforms of the composition of the electoral
administration and registration of both candidates and voters on
electoral lists, based on the recommendations of the Venice Commission
and of the Office for Democratic Institutions and Human Rights of
the Organization for Security and Co-operation in Europe (OSCE/ODIHR);
11.4.1.4. finalise the ongoing reforms concerning party financing
and in particular the financing of election campaigns, in line with
the recommendations of the Group of States against Corruption (GRECO);
11.4.1.5. ensure that candidates are only required to notify executive
authorities of their intent to hold a gathering;
11.4.1.6. make use of the Venice Commission’s expertise in this
field;
11.4.1.7. take note of the need for the clear assignment of responsibilities
and also the problematic practice of voter registration on electoral
registers on election day;
11.4.2. encourage a climate favourable to pluralism, free campaigning
and freedom of the media for the November 2015 elections;
11.5. with regard to the judiciary:
11.5.1. ensure independence
of the judiciary and judges, and prevent any pressure being exerted
on them;
11.5.2. further amend the legislation on the composition and powers
of the Judicial Legal Council and the appointment of judges with
a view to decreasing the influence of the executive, and in particular:
11.5.2.1. further ensuring that the Judicial Legal Council is composed
either exclusively of judges or of a substantial majority of judges
elected by their peers, giving more powers to the General Assembly
of Judges;
11.5.2.2. consider removing the probation period for judges, or
at least further decreasing its length based on objective, pre-established
criteria;
11.5.3. take the necessary measures to avoid criminal proceedings
being instituted without a legitimate basis and to ensure effective
judicial review of such attempts by the Prosecutor’s Office, as
well to prevent violations of the presumption of innocence by the
law-enforcement authorities and members of the government;
11.5.4. take all necessary measures to guarantee due process and
impartiality of the courts, in compliance with Article 6 of the
Convention;
11.5.5. take the necessary measures to ensure that pre-trial detention
is not imposed without considering whether it is necessary and proportionate,
or whether less intrusive measures could be applied;
11.5.6. use all available legal tools to release those prisoners
whose detention gives rise to justified doubts and concerns;
11.5.7. refrain from exerting any pressure on lawyers defending
NGO representatives and journalists;
11.5.8. ensure that the Ombudsman is legally independent and provided
with professional immunity guarantees and also has the competence
to review issues relating to human rights and the media;
11.6. with regard to freedom of expression:
11.6.1. create
proper conditions for journalists to carry out their work and refrain
from exerting any kind of pressure on them;
11.6.2. stop reprisals against journalists and others who express
critical opinions;
11.6.3. refrain from limiting freedom of expression and freedom
of the media in both legislation and in practice;
11.6.4. speed up efforts towards the decriminalisation of defamation,
in co-operation with the Venice Commission, to ensure that defamation
cannot be associated with excessively high criminal sanctions, including
imprisonment; in the meantime, use the existing legislation with caution
to avoid prison sentences for such offences;
11.6.5. release all political prisoners, including those who have
co-operated with the Parliamentary Assembly;
11.7. with regard to freedom of association:
11.7.1. review
the law on NGOs with a view to addressing the concerns formulated
by the Venice Commission;
11.7.2. create an environment conducive for NGOs to carry out
their legitimate activities including those expressing critical
opinions;
11.8. with regard to international co-operation:
11.8.1. reverse
the authority's decision on the closure of the OSCE office in Baku
and co-operate fully with this organisation.
12. The Assembly resolves to closely follow the situation in Azerbaijan
and to take stock of the progress achieved in the implementation
of this and previous resolutions.