Parliamentary Assembly Assemblée parlementaire

Doc. 10030
12 January 2004


Functioning of democratic institutions in Azerbaijan


Report

Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)

Rapporteurs: Mr Andreas Gross, Switzerland, Socialist Group, and
Mr Guillermo Martínez Casañ, Spain, Group of the European People’s Party

Summary

The report recognises that Azerbaijan has made certain progress towards honouring obligations and commitments since the last monitoring report in September 2002. However, this progress is far from satisfactory. The presidential elections in October 2003 again failed to meet international standards. The constitutional arrangements regarding the separation of powers are inadequate and are favouring the executive power. During the last year, freedom of expression and freedom of association have not improved and, in some cases, deteriorated. Human rights abuses by the police and the use of torture and ill treatment of detainees continue to be reported. While all political prisoners have not yet been released, the events after the presidential elections led to further politically motivated arrests. The report calls on the Azerbaijan authorities to investigate and, where justified, prosecute all alleged human rights violations. It also provides a list of concrete measures to improve the functioning of democratic institutions. The monitoring procedure should not be closed until the Azerbaijani authorities make further substantial progress on the outstanding obligations and, notably, demonstrate their ability to organise free and fair elections.

I.        Draft resolution

1.       Ten years after its independence Azerbaijan is, for the first time, going through political transition with Ilham Aliyev succeeding his father Heydar Aliyev, following the October 2003 presidential election. The new government is facing serious challenges in pursuing the reforms that are necessary to fulfil Azerbaijan’s obligations and commitments as a member state of the Council of Europe.

2. The Parliamentary Assembly believes that the newly elected President must be given an opportunity to demonstrate his commitment to European democratic values and principles. As the former President of the Azerbaijani Delegation to the Assembly, Mr Ilham Aliyev is familiar with the obligations resulting from his country’s membership of the Council of Europe. The Assembly therefore hopes that he will speedily initiate the necessary reforms in the field of pluralistic democracy, rule of law and respect for human rights.

3. Moreover, the Assembly regrets that no progress has been made to peacefully resolve the situation concerning Nagorno Karabakh which was the principal justification for inviting Azerbaijan to join the Council of Europe at the same time as Armenia.

4.       The Assembly recognises that Azerbaijan has achieved certain progress towards honouring obligations and commitments since the last monitoring report in September 2002. However, it considers that this progress is far from satisfactory, particularly with regard to the implementation of new laws. It therefore expects the new government to take into account the following findings and act on the Assembly’s recommendations.

5.       With regard to the presidential election of 15 October, the Assembly is particularly concerned that:

i.        the first election since accession of Azerbaijan to the Council of Europe again failed to meet generally accepted international standards. The lack of transparency of the overall process and the poor performance of the election administration allowed for falsification of the election results and seriously undermined the credibility of the scale of Ilham Aliyev’s victory;

ii.       authoritarian practices like intimidation of voters, pressures on elections commissioners or clear bias of the media in favour of the ruling party’s candidate were again observed during the 2003 election. In a member state of the Council of Europe, which has been independent for more than 10 years, such practice is unacceptable;

iii.        the wave of arrests and politically motivated dismissals that were reported in the post election period seem to continue. The conditions of detention are appalling; there were reports of torture and unacceptable threats were exerted to intimidate political parties and human rights activists;

iv.        the Azerbaijani authorities should continue releasing existing political prisoners and should refrain from any new arrests and detentions of people for their political opinions and activities, personal thoughts or beliefs.

6.       With regard to separation of power, the Assembly notes that the constitutional provisions regarding separation of powers seem to be inadequate and this fundamental principle appears not to be applied in practice. The parliament needs to reinforce its independence vis-à-vis the executive in order to exercise control over the government’s activities, especially in the field of respect for human rights. In a democratic system, the parliament must in particular be able to exercise its right to question members of the government and to receive precise answers as regards implementation of the laws and the use of government executive powers.

7.       With regard to media, the Assembly deplores that:

i.        the numerous problems reported in the year leading to the election in the field of media were not appropriately dealt with. The activities of independent media in Azerbaijan were almost paralysed. During the election campaign the state-controlled media failed to offer equal opportunities to all candidates and showed an undeniable bias in favour of the candidacy of the current president;

ii.        the commitment undertaken by Azerbaijan to transform the two existing state channels into truly independent public service broadcasting organisations was not fulfilled. The Assembly regrets that the draft law on public TV currently in the parliament was not submitted to the Council of Europe for a final appraisal. Furthermore, the Assembly stresses that the National Council of Radio Television responsible for regulating the private electronic media should operate on a pluralistic and democratic basis and act in an independent, impartial and transparent manner.

8.       With regard to fundamental freedoms, the Assembly can only conclude that efforts made are far from satisfactory:

i.        freedom of expression has been further curtailed since the last Resolution adopted in September 2002, and none of the recommendations contained therein were taken into consideration. The voters’ basic right to freely express their choice was systematically undermined by insidious pressure and lack of secrecy in voting procedures. Journalists were reported to exercise self censorship due to intimidation by the executive bodies and non-state media were administratively harassed;

ii.        freedom of association still causes serious concerns. The numerous restrictions on freedom of association and obstacles to the implementation of the citizen’s rights to associate are unacceptable. A proper system of registration of associations and other entities as well as a concrete possibility to exercise the right to associate should be put into place;

iii.        freedom of peaceful assembly still suffers repeated and unacceptable restrictions and impediments to the right to campaign were again observed during the presidential election. Despite strong recommendations of the Assembly on this matter, numerous incidents of undue and disproportionate use of force against demonstrators were reported. The Assembly considers that the situation concerning this basic freedom is not improving as one would expect from a country which has been a member of the Council of Europe for more than 2 years. In this respect the lack of progress is similar to regress;

iv.        violations of basic human rights by law enforcement bodies are still reported and the police forces still react in an inadequate and disproportionate manner. The Assembly can only deplore once again the use of force which resulted in the death of at least one person. The Assembly considers that the scale of the post election protest movement shows an obvious lack of democratic opportunities for the population to express its concerns;

v.        use of torture and ill-treatment of detainees continue. The Assembly cannot accept detention conditions where detainees are deprived of food and water, denied access to their lawyers and subjected to physical and psychological pressure and ill-treatment in order to extract confessions;

9.       In the light of the above, the Assembly urges the Azerbaijani authorities:

i.        to set up - with the assistance of the Council of Europe – two separate parliamentary enquiry commissions to investigate, on the one hand, the election shortcomings and, on the other hand, the human rights violations that took place during and after the elections. Their findings should be published;

ii.       to release or speedily bring to trial supporters and leaders of opposition political parties detained in the post-election period. All detainees must be granted access to their lawyers and be afforded the right to a fair trial. The presumption of innocence must be respected and the sentences imposed should be proportionate. The authorities must take all necessary measures to make sure that none of the cases under investigation would result in creating new cases of political prisoners;

iii.       to take the necessary measures to investigate and, if necessary, prosecute all cases of ill-treatment and torture. There should be no impunity for officials involved in such practices;

iv.       to take measures and if necessary legislate in order to protect the media, NGOs, political activists or their relatives from intimidation and harassment by the authorities;

v.       to take measures enabling the written press to freely and properly function, especially with regard to access to paper, printing and distribution facilities;

vi.       to continue to ensure that election officials responsible for election frauds and other violations of the electoral code are brought to justice;

vii.       to publish the election results in their entirety, for each polling station and to officially acknowledge the serious irregularities that occurred during the 2003 election process;

viii.       to immediately start preparing a new civil register in order to improve the currently deficient voters’ lists. This process should be transparent and should guarantee a proper registration of voters for the future municipal elections scheduled in 2004;

ix.        to adopt the law on the Statute of the Constitutional Court and to further amend accordingly the relevant procedural codes, essential to the proper functioning of this newly created institution;

x.       to effectively continue and implement without delay the reform of the judicial system, in order to guarantee full independence and credibility of this institution, taking into account the December 2002 recommendations made by the experts of the Council of Europe;

xi.       to speedily forward for appraisal to the Council of Europe, according to the initial commitments and obligations subscribed by Azerbaijan upon accession, the texts of the following laws before being signed by the President:

• the law on corruption,

• the law on registration of legal entities,

• the law on advocacy,

• the law on public service broadcasting,

• the law on access to information,

in order to ensure that these are fully in line with Council of Europe standards before entering into force;

xii.       to take the appropriate measures in order to fulfil the remaining obligations and commitments specified in Resolution 1305 (2002).

10.       The Assembly cannot envisage closing the current monitoring procedure until Azerbaijan has made substantial progress on the outstanding issues and, notably, before it has proved to be capable of running free and fair elections in line with internationally accepted standards.

11.       Recalling that in Opinion No. 221 (2002) the Assembly considered that the simultaneous accession of Azerbaijan and Armenia could help to establish the climate of trust and détente needed for a peaceful solution to the Nagorno Karabakh conflict, and noting its call on the Azerbaijani and Armenian authorities to continue their dialogue to give new impetus to regional co-operation which could contribute to this climate, the Assembly calls on the Bureau of the Assembly to consider how regional parliamentary dialogue and co-operation involving the speakers of parliaments, that had been established, can be restored and progress as soon as possible.

12.       Meanwhile, the Parliamentary Assembly expects the Azerbaijani authorities to demonstrate clearly their commitment to the principles on which the Council of Europe was founded and the values of a democratic, humanist and tolerant Europe. In this context, the Assembly firmly urges the Azerbaijani authorities to address without delay in particular the issues mentioned in paragraph 9 of the present Resolution.

13.       The Assembly also urges the Azerbaijani Parliamentary Delegation and the entire Parliament to fully support the measures that are necessary to be taken by the authorities in order to comply with the Assembly’s recommendations.

14.       If no progress is recorded before June 2004, the Assembly may decide to annul the ratified credentials of the Azerbaijani parliamentary delegation to the Council of Europe, in conformity with Article 12 of Resolution 1115 (1997) and Rule 9 of its Rules of Procedure.

6.       With regard to media, the Assembly deplores that:

i.        The numerous problems reported in the year leading to the election in the field of media were not appropriately dealt with. The activities of independent media in Azerbaijan were almost paralysed. During the election campaign the state controlled media failed to offer equal opportunities to all candidates and showed an undeniable bias in favour of the candidacy of the current president.

ii.        The commitment undertaken by Azerbaijan to transform the two existing state channels into truly independent public service broadcasting organisations was not fulfilled; The Assembly regrets that the draft law on public TV currently in the parliament was not submitted to the Council of Europe for a final appraisal. Furthermore, the Assembly stresses that the National Council of Radio Television responsible for regulating the private electronic media should operate on a pluralistic and democratic basis and act in an independent, impartial and transparent manner.

7.       With regard to fundamental freedoms, the Assembly can only conclude that efforts made are far from satisfactory:

i.        Freedom of expression has been further curtailed since the last Resolution adopted in September 2002, and none of the recommendations contained therein were taken into consideration. The voters’ basic right to freely express their choice was systematically undermined by insidious pressure and lack of secrecy in voting procedures. Journalists were reported to exercise self censorship due to Intimidation by the executive bodies and non-state media were administratively harassed.

ii.        Freedom of association still causes serious concerns. The numerous restrictions on the freedom of association and obstacles to the implementation of the citizen’s rights to associate are unacceptable. A proper system of registration of associations and other entities as well as a concrete possibility to exercise the right to associate should be put into place

iii.        Freedom of peaceful assembly still suffers repeated and unacceptable restrictions and impediments to the right to campaign were again observed during the presidential election. Despite strong recommendations of the Assembly on this matter, numerous incidents of undue and disproportionate use of force against demonstrators were reported. The Assembly considers that the situation concerning this basic freedom is not improving as one would expect from a country which has been a member of the Council of Europe for more than 2 years. In this respect the lack of progress is similar to regress.

iv.        Violations of basic human rights by law enforcement bodies are still reported and the police forces still react in an inadequate and disproportionate manner. The Assembly can only deplore once again the use of force which resulted in the death of at least one person. The Assembly considers that the scale of the post election protest movement shows an obvious lack of democratic opportunities for the population to express its concerns.

v.        Use of torture and ill-treatment of detainees continue. The Assembly cannot accept detention conditions where detainees are deprived of food and water, denied access to their lawyers and subjected to physical and psychological pressure and ill-treatment in order to extract confessions.

8.       In the light of the above, the Assembly urges the Azerbaijani authorities:

i.        to set up - with the assistance of the Council of Europe – two separate parliamentary enquiry commissions to investigate, on the one hand, the election shortcomings and, on the other hand, the human rights violations that took place during and after the elections. Their findings should be published.

ii.       to release or speedily bring to trial supporters and leaders of opposition political parties detained in the post-election period. All detainees must be granted access to their lawyers and be afforded the right to a fair trial. The presumption of innocence must be respected and the sentences imposed should be proportionate. The authorities must take all necessary measures to make sure that none of the cases under investigation would result in creating new cases of political prisoners.

iii.       to take the necessary measures to investigate and, if necessary, prosecute all cases of ill-treatment and torture. There should be no impunity for officials involved in such practices.

iv.       to take measures and if necessary legislate in order to protect the media, NGOs, political activists or their relatives from intimidation and harassment by the authorities.

v.       to take measures enabling the written press to freely and properly function, especially with regard to access to paper, printing and distribution facilities.

vi.       to ensure that election officials responsible for election frauds and other violations of the electoral code are held criminally responsible.

vii.       to publish the election results in their entirety, for each polling station and to officially acknowledge the serious irregularities that occurred during the 2003 election process.       

viii.       to immediately start preparing a new civil register in order to improve the currently deficient voters’ lists. This process should be transparent and should guarantee a proper registration of voters for the future municipal elections scheduled in 2004.

ix.        to adopt the law on the Statute of the Constitutional Court and to further amend accordingly the relevant procedural codes, essential to the proper functioning of this newly created institution.

x.       to effectively continue and implement without delay the reform of the judicial system, in order to guarantee full independence and credibility of this institution, taking into account the December 2002 recommendations made by the experts of the Council of Europe.

xi.       to speedily forward for appraisal to the Council of Europe according to the initial commitments and obligations subscribed by Azerbaijan upon accession- before being signed by the President - the texts of the following laws:

•
•
•
•
•

II.       Explanatory memorandum by the co-rapporteurs

Table of contents

INTRODUCTION

A. The monitoring procedure

B.       The report on the functioning of democratic institutions in Azerbaijan

I.       RECENT POLITICAL DEVELOPMENTS

A. Overall situation in Azerbaijan

B. Preparation of elections: absence of consensus of all political forces in the country leading to a political deadlock

C. Observation of Elections: Lack of transparency of the overall electoral process: falsifications, manipulations and violence question the size of the incumbent’s victory

D. Post-election events

E. A new era in Azerbaijani politics: changes or continuity?

II.       FUNCTIONING OF DEMOCRATIC INSTITUTIONS

      A.       Separation of power

      B.        Missed opportunities for the Parliament to mediate in favour of respect of human rights

C.       Lack of action of the Ombudsman institution

D.       Law enforcement bodies and respect of basic human rights

III.        FUNDAMENTAL FREEDOMS:

A.       Restrictions to the freedom of expression

B.       Freedom of peaceful assembly

C.        Freedom of association

D.        Development of civil society

IV.        OTHER COMMITMENTS AND OBLIGATIONS REMAINING TO BE FULFILLED:

A. Signature and ratification of conventions

B. Public television

C. Media

D. Law and status of the Constitutional court Legal reforms

E. Other issues

CONCLUSIONS

APPENDICES

1.       Opinion No. 222 (2000) Azerbaijan’s application for membership of the Council of Europe

2.       Resolution 1305 (2002) on the honouring of obligations and commitments by Azerbaijan

3.        List of treaties signed and ratified b
y Azerbaijan

4.       Comments by the Azerbaijani authorities on the preliminary draft report

Introduction

A.        The Monitoring procedure

1.       Azerbaijan joined the Council of Europe on 25 January 2001. The monitoring procedure started immediately afterwards, in accordance with paragraph 17 of Opinion No. 222 (2000) of the Parliamentary Assembly on Azerbaijan’s application for membership of the Council of Europe (see Appendix I).

2. On accession, Azerbaijan accepted the obligations that Article 3 of the Statute imposes on all member states: respect for the principles of pluralist democracy, which includes the conduct of democratic elections and referenda, for the rule of law, and for the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms. It also accepted a series of specific commitments that it agreed to meet within specified deadlines. These are listed in
Opinion No. 222 (2000)¹.

3. In September 2002 the Assembly adopted its first report on honoring obligations and commitments by Azerbaijan (Doc. 9545 rev dated 18 September 2002). In its Resolution 1305(2002) (see Appendix 2), the Assembly called for necessary improvements in particular in the following areas:

• With regard to elections: the Assembly called “to ensure that the 2003 presidential election is held in accordance with international standards” and is conducted in a manner that would not give opportunities for the losing side to contest the legitimacy of the newly elected president;

• With regard to separation of power: the Assembly recommended consolidating the separation of power, to limit the predominant role and sanction the undue interference that the executive power still exercises on other institutions. It called for “the reinforcement of the role of the parliament and the establishment of its independence from and its controlling role vis-à-vis the executive”;

• With regard to human rights and fundamental freedoms: the Assembly called “for effective arrangements to protect freedom of expression, of association and peaceful assembly”. It also called the authorities to “take all the necessary steps to guarantee freedom of expression and the independence of the media and journalists and particularly to exclude the unacceptable use of administrative measures to restrict the freedom of media”. It also strongly called ”for the police forces to react in an adequate and proportionate manner when civilians are involved in police interventions”;

• With regard to pluralist democracy and development of civil society: the Assembly “urged Azerbaijan to promote confidence and an inclusive climate in politics”, called opposition and government to foster efforts in order to “reach a satisfactory level of co-operation and dialogue necessary to the development of a real pluralist democracy”. It also urged “the authorities to improve the working modalities and registration procedure of local non-governmental organisations and called for a better and fair administration of requests for public demonstrations”.

4. In 2003 the co-rapporteurs visited Azerbaijan several times in various capacities. They visited Azerbaijan twice (10-13 February and 5-9 May 2003) as members of the Working Group on Political Prisoners; conducted two monitoring visits (20-25 January and 13-17 July 2003) and returned to Baku with the pre-electoral and election observation missions (15-16 September and 13-16 October 2003).

5. The co-rapporteurs are grateful to the Azerbaijani authorities and to the Azerbaijani delegation to the Parliamentary Assembly for their co-operation. They also wish to thank the Italian Ambassador, Mrs Margherita Costa, the Greek Ambassador, Mr Mercourios B. Karafotias, the Special Representative of the Secretary General of the Council of Europe, Ms Inkeri Aarnio-Lwoff, and the Head of the OSCE office in Baku, Ambassador Peter Burkhard, for their assistance during the visits.

B.       The report on the functioning of democratic institutions in Azerbaijan

6. Resolution 1115 (1997) provides for a monitoring report to be presented to the Assembly at least once every two years. The co-rapporteurs are of the view that recent events in Azerbaijan as well as the new situation arising from the October 2003 presidential election call for this report to be presented to the Assembly to take a stock of the situation.

7.       In the present report the co-rapporteurs have decided to focus on the “Functioning of democratic institutions in Azerbaijan”. In 2002, in the first report on honouring obligations and commitments by Azerbaijan, the co-rapporteurs had deliberately underlined the urgent need for progress and improvement in this area, which conditions effective implementation of all other commitments.

35. Therefore, this report will only address the four above-mentioned issues (paragraph A.3 of this report) as a partial follow up to the September 2002 report and resolution. In addition, they will recapitulate in a final chapter, the remaining and most urgent obligations and commitments undertaken by Azerbaijan upon accession, which still require further action.

I.       RECENT POLITICAL DEVELOPMENTS

A.       Overall situation in Azerbaijan

9.       In August 2002 a referendum was organised to adopt a number of important amendments to the Constitution. This referendum was purposely not observed by the Council of Europe due to its sudden organisation and the lack of consultation with the relevant authorities of the Council of Europe² on the content of the text.

10.       The amendments introduced major changes to the constitutional organisation in Azerbaijan. The transfer of the function of acting President ad interim in case of incapacity of the President from the Speaker of Parliament to the Prime Minister, as well as the election of the President by absolute majority (instead of qualified majority) indicated early signs of the preparation of a power transition.

11. President Aliyev had been out of the country since the beginning of July and had had serious health problems since April 2003, when he fainted during a ceremony at a military school in Baku and was consequently taken to hospital. On 4 August 2003, Ilham Aliyev was appointed Prime Minister by decree of his father and became President by interim in view of the incapacity of his father.

12. The co-rapporteurs see in this series of events a logic that indicates a clear strategy in the preparation of the succession, which left very little room for democracy. They recall that the basis of a democratic and pluralistic state is to have the population participating in the selection of their leaders. This strategy was denounced by some observers as an undemocratic attempt to institute family “monarchy” in Azerbaijan.

13. The co-rapporteurs regret that during this pre-electoral period no information on the health of the head of State was communicated to the nation. The transfer of power was done in the name of the President and could not be witnessed by the public. This would have been very important for the legitimacy of the power transfer.

B.       Preparation of elections

14. ³Both co-rapporteurs took part in the pre-electoral mission to Azerbaijan from 15-16 September 2003. A memorandum submitted by Andreas Gross⁵, the leader of the Assembly’s Delegation, was appended to the Progress Report of the Bureau of the Assembly presented during the September 2003 part-session.

15. In this report, the co-rapporteurs noted a number of elements that raised concern as to the good and fair preparation of these elections.

16. This first national election since accession of Azerbaijan to the Council of Europe, was not only of major importance for the future of the country, but was also seen as a crucial test for the development of democracy in the region. The election marked the end of the first decade after independence, as well as the end of Heydar Aliyev’s era and regime which had lasted for 34 years. For international institutions like the Council of Europe, the election was an opportunity for the Azerbaijani nation and leadership to confirm their commitment to European values of pluralist democracy and to show that the last 12-year period of transition could lead to the establishment of a democratically-based state and political system. It was also seen as an opportunity for all political factions to demonstrate political maturity and readiness to conduct elections in conformity with Council of Europe and OSCE standards.

17. Long and exhausting negotiations led to the adoption by the Milli Mejlis of the Electoral Code on 27 May 2003. The co-rapporteurs regret that this late adoption of the code did not follow the recommendations they made in the 2002 first monitoring report on Azerbaijan. Indeed, the rapporteurs had suggested that - in order to avoid confusion and political manipulation of the debates around the electoral code - the code should be adopted and implemented “at least six months before the elections”.

18. Nevertheless the co-rapporteurs wish to underline the constructive co-operation of Azerbaijani authorities with both the Venice Commission of the Council of Europe and the ODHIR-OSCE during the drafting process and finalisation of the code. A Joint Final Assessment⁶⁷ of the Electoral Code of the Republic of Azerbaijan by the European Commission for Democracy through Law (Venice Commission, Council of Europe) and the OSCE Office for Democratic Institutions and Human Rights was presented to the Azerbaijani authorities. Notwithstanding the positive introduction of a certain number of recommendations, the Joint Assessment underlined serious shortcomings still to be remedied and listed important recommendations to be further considered by the authorities of Azerbaijan in future legislative reforms.

19. The composition of election commissions proved to be a controversial and problematic issue. The question of the composition of the Central Election Commission was central for electoral legitimacy if the electoral system and its administration were to be considered fair and legitimate by all political actors. The co-rapporteurs regret that the solution finally adopted could not reach a substantial consensus of all significant political actors and was therefore subject to heavy criticism. As a result the CEC composition heavily favoured the ruling party and its supporters and at local and regional levels the same governing party and its allies had generally a commanding majority.

20. It is to be regretted that the political climate on the eve of the presidential elections was so bad and marred by many incidents, in particular the arrests of opposition supporters and campaign staff, verbal violence and aggressiveness during the campaign. The co-rapporteurs deplore the lack of constructive dialogue between pro-governmental and opposition factions and the missed opportunity to reach a satisfactory level of co-operation, which could have avoided misunderstandings and frustration on both sides. They consider that the negotiation process and elaboration of the electoral code would have benefited from more confident and open approaches from both sides. They note that an electoral code adopted with no real political consensus and contested by some of the political parties casts a shadow on the credibility and the legitimacy of the overall election process.

21. The co-rapporteurs were regularly informed - during the year prior to the elections - of the problems arising in the sphere of media. Not only did they notice a heavy media bias in favour of the incumbent and/or his son, but they were informed of a succession of measures which led to the closure of significant opposition newspapers or to the worsening of basic working conditions (printing and distribution problems, pressures on editors, numerous and disproportionate fines for libel…). In addition, a number of journalists admitted that they exercised self-censorship, because of the risk of losing their job in this pre-electoral environment.

22. Similarly, complaints reached the co-rapporteurs that within public institutions, a campaign was conducted by local management to ensure that most of the employees, students and pupils’ parents would vote for the “right candidate” namely the candidate of the ruling majority. In certain cases, it was alleged that heads of institutions were strongly “encouraging” teachers and employees to register with the YAP party. In many cases, people had felt obliged to follow such “recommendations” in order to keep their jobs.

23.

24. The co-rapporteurs are shocked that in a member state of the Council of Europe, which has been independent for more than ten years, such “soviet type” of practices are still in force. They are worried that this sort of pressure is in fact a strategy to control or influence the voter’s intentions.

25. Being aware of the importance this election bore for the opposition, the co-rapporteurs feel that it has missed the chance to demonstrate political maturity. Even if it is not the co-rapporteur’s intention to judge the behavior of the opposition, they note that the personal rivalries among political leaders as well as the lack of political strategy has contributed to the prevailing climate of overall political mistrust in the country. They also regret that several times during the pre-electoral situation, notably when meeting with the pre-electoral mission, the opposition forces, in particular the leader of the Musavat party had openly threatened to call for unrest and social disorder if the election outcome would not meet the opposition’s expectations. They also deplore that, even on the day before the election day when asked so by the election mission, the Musavat leader failed to commit himself to try to contain the popular reaction within the limits of peaceful and democratic demonstrations.



26.

27. Opposition parties denounced the systematic strategy of the pro-governmental factions to discredit and destroy their reputation. It is true that the recent creation of “clones” of opposition parties by pro-governmental supporters can only be seen as an unfair attempt to confuse the voters. The “Muasir Musavat Party” was created a few months before the election as well as the “New Popular Front”, a cloned version of the “Classical Popular Front” party. The co-rapporteurs consider that such a provocation can only worsen the political climate and the animosity between opposition parties and the Governmental side.

28. In conclusion, the co-rapporteurs are seriously concerned that the overall atmosphere was not conducive to a fair and equitable contest for all the candidates. They require immediate attention of the authorities to this matter, because, if the opposition feels it has no constitutional means of influencing the process, an explosive political situation could be the result.

C.       Observation of the election: lack of transparency of the overall electoral process, falsifications, violence and popular protests question the scale of Ilham Aliyev’s victory

29. In the 2002 first report on honoring of obligations and commitments by Azerbaijan, the co-rapporteurs clearly announced the crucial importance of the first election to be held following accession of Azerbaijan to the Council of Europe. The 2003 presidential election was to be a practical exercise implementing all reforms initiated since 2001 and was seen as a particularly important indication of the prospects of further democratic transition in Azerbaijan.

30. In response to an invitation by the Milli Mejlis, the Parliamentary Assembly Bureau decided on 27 May 2003 to set up an ad hoc committee to observe the 15 October 2003 presidential election in Azerbaijan. Initially the committee consisted of 10 members; it was subsequently enlarged to 35 members on 8 September 2003. The ad hoc committee acted as part of the international election observation mission which also included the election observation mission of the Organisation for Co-operation and Security in Europe’s Office for Democratic Institutions and Human Rights (OSCE/ ODIHR) and the election observation mission of the OSCE Parliamentary Assembly.

31. The ad hoc committee met on 1 October 2003 in Strasbourg and then on 13-16 October 2003 in Baku. The co-rapporteur, Mr Martínez-Casañ, was elected Chairman of this committee and Mr Daniel Goulet (France, LDR) Rapporteur. The report of the ad hoc committee⁸⁹ was presented to the Bureau of the Assembly on 25 November 2003. A post electoral mission composed of Mr Cavasoglu (Turkey, GDE) and Mr A. Gross (Switzerland, SOC) visited Baku (17-19 November 2003) with a view to studying the post electoral situation in the country; they orally reported to Bureau of the Assembly and to the Standing Committee in Maastricht on 25 November 2003.

32. The report of the ad hoc Committee reflects disappointing conclusions and raise serious doubts as to the existence of a genuine political will to conduct elections in conformity with international standards. An exhaustive final report on this election presented by the OSCE/ODIHR¹¹, shows in detail all the discrepancies and deficiencies observed before, during and after the polls. The co-rapporteurs endorse and fully subscribe to the conclusions of the OSCE/ODIHR Election Observation Report and strongly support the recommendations advocated in that document.

33. They strongly call the Azerbaijani authorities to carefully study and seriously consider the proposals and advice included in the PACE ad hoc committee’s report and the OSCE/ODIHR report. They believe that these recommendations are fully in line with the commitment set out in paragraph iii-a of Opinion No. 222 (2000), and consider it their duty to follow up the implementation of repeated suggestions. They hope that for the municipal elections, due to take place in 2004, all necessary measures will be undertaken to secure genuine democratic elections.

34. In conclusion, the co-rapporteurs deeply regret that notwithstanding the formal commitment of the Azerbaijani leadership to conduct elections that “can be considered as free and fair by international observers”¹²¹³ this election failed again to meet international standards. In particular they deplore the lack of transparency of the overall process as well as the poor performance of the election administration, both permitting falsification of election results. They noted serious restrictions and unequal campaigning conditions that obviously advantaged the candidacy of the current president. They consider the recurrent practice of intimidation of voters, election commissioners and political supporters in order to ensure a large victory for the candidate in power to be totally unacceptable.

35. Having now obtained significant experience and understanding of the situation in Azerbaijan, it is clear for the co-rapporteurs that Ilham Aliyev enjoys a certain degree of popularity and that a large part of the population wanted to expressed its support for a stable transition and therefore voted for the son of the former President. On the other hand, according to official results, Ilham Aliyev was elected with a surprisingly high majority of 76.82% of the votes¹⁴¹⁵. The reported deficiencies of the election administration, the numerous cases of elections commissioners denouncing falsification of the poll’s results and the scale of the popular protest against the election outcome cast a serious shadow on the size of the incumbent’s victory. They also regret that the results in 694 polling stations - representing nearly 20% of the polling stations and 14% of the total number of voters - had to be declared invalid without further investigations or explanation.

D.       Post-election events

36. Security forces maintained a heavy presence around Musavat headquarters since early afternoon on polling day. In the evening supporters of the Musavat party gathered in front of the party’s office and this meeting, although not authorized by the authorities, was described as rather peaceful. Shortly after the closing of the poling stations, Musavat supporters announced the victory of the leaders of the party. Some turmoil started and the demonstration was strongly repressed by policemen. Alleging they had to enter the party office to arrest party officials, security forces started to use force against the protesters and violent fights followed.

35.       Once the preliminary final results had been announced on the following day, the Musavat party denounced them as unrealistic and falsified and called for a demonstration in the main square of the capital. During the demonstration, the demonstrators stole a police vehicle and charged against the police forces killing a policeman. In the clashes which followed, several persons, both demonstrators and policemen, were seriously wounded. Several other sources indicated that four person died during the clashes.

36.       Following these events numerous people were arrested including journalists, members of NGOs, party activists and supporters. At the time this report is being drafted, the available information indicates that more than 700 people have been detained and it seems that the wave of arrests is still going on. According to Ministry of Interior data, 86 individuals were sentenced to 3-month detention under preliminary investigation for violation of articles 220.1¹⁶ and 315.2¹⁷ of the criminal code and more than 300 persons should be called to account for on their participation in the 15-16 October



37.



Following these events numerous people were arrested including journalists, members of NGOs, party activists and supporters. At the time this report is being drafted, the available information indicates that more than 700 people have been detained and it seems that the wave of arrests is still going on. According to Ministry of Interior data, 86 individuals were sentenced to 3-month detention under preliminary investigation for violation of articles 220.1¹⁸¹⁹demonstrations. Such massive arrests occurred in all the regions of Azerbaijan. In some instances, families remained without news of arrested relatives for several days.

37.       It is to be noted that this wave of arrests massively affected the opposition parties. Four “Musavat party” vice-presidents and members of the party political council, journalists, the chief editor and a correspondent in the regions of the “Yeni Musavat” newspaper, the general secretary of the “Azerbaijan Democratic Party”, leaders of the “Umid Party”, Chairman of the People’s Party but also members of the “People’s Front Party”, “Azerbaijan National Independence Party”,”Ahrar Party” are still detained or were sentenced to 3-month detention under preliminary investigation. The co-rapporteurs agree that criminals have to be sanctioned for their crimes. Nevertheless in this particular case they wonder whether this wave of arrests is not closer to a political purge of the country than to a regular action of police.

38.      

Well-informed sources reported verified information that while in detention in the Ministry of Interior Department for the Fight Against Organised Crime (MIA-DFAOC), detainees suffered inhuman treatment, were beaten up and tortured in order to extract confessions or denunciations. Other persons detained immediately preceeding the elections complained about unacceptable detention conditions, where detainees were not given food for more than two days, were denied several times access to their lawyers and were subject to physical and psychological pressure to confess untrue crimes. In addition, major procedure irregularities were reported during the trials described - in certain cases - by the lawyers as being unfair. The co-rapporteurs consider it absolutely necessary that the Azerbaijani authorities investigate thoroughly such allegations, and expect the persons responsible of such crimes to be sanctioned accordingly.

38.

39. A significant number of members of election commissions (and particularly those representing opposition parties) at the local and regional levels have been similarly detained or arrested for refusing to sign flawed and fraudulent protocols. In other cases, heavy pressure was exerted on the commissioners or their relatives, threatened with loss of their jobs or administrative sanctions, in order to bring them to renounce their membership in opposition parties or to sign doubtful elections protocols.

40.        I



Intimidation and politically motivated dismissals are reported to continue on a large scale all over the country. In a press statement, the OSCE office in Baku, expressed strong concern “about the number of complaints and reports regarding such dismissals, especially of persons working in state owned organisations and enterprises. These cases raise questions as to whether principles of the rule of law have been observed”²⁰²¹.

41.       Both co-rapporteurs, being members of the Joint Working Group on Political prisoners in Azerbaijan, are deeply shocked by this wave of arrests and appalled by the reported pressures and intimidation attempts, unacceptable condition of detentions and threats exerted to intimidate political parties and human rights activists. They recall that Azerbaijan has not only pledged to solve the cases of currently detained political prisoners, but is also expected to respect Council of Europe’s obligations (particularly art 3, 6 and 11 of the European Convention for the protection Human Rights) and to avoid creating new instances of prisoners sentenced or being detained for their political opinion or activities, personal thoughts and beliefs. In this regard, they urge the Azerbaijani authorities to take all necessary measures to make sure that none of the cases under investigation would result in creating new cases of political prisoners.

42.       The co-rapporteurs are seriously worried by a recent series of measures which de facto further restrain and undermine the activities of opposition parties in Azerbaijan. Following a decision issued by the Sebail district court dated 13 November 2003, the “Musavat Party” was requested to leave - within a day - its offices in the centre of the city. The editorial office of the “Yeni Musavat newspaper”, located in the same building, was also requested to move out of the premises. In both cases, the reason given for the eviction is that “due to its historical character the premises could not be further rented”. On the same day, the Nassimi district court issued a similar decision requesting the “Classical Popular Front Party” to immediately free its office’s premises in the centre of the city, when the lease agreement was only due to expire in January 2004. Even if the authorities have pledged to provide these two opposition parties with new office space; in the current political context, these decisions cannot but appear as arbitrary and discriminatory measures towards parties from opposition factions. The co-rapporteurs recommend that the Azerbaijani authorities take all necessary measures to provide these two parties with satisfactory premises in the centre of the city, in order to facilitate a smooth solution of this problem.

43.       The co-rapporteurs are extremely concerned by all these issues and are strongly disappointed by the poor performance of the executive in organising democratic elections and solving problems in a mature and democratic way. Such blatant violations of basic human rights and fundamental freedoms are unacceptable in a member state of the Council of Europe and show that Azerbaijani authorities have no real commitment to European values of pluralist democracy. In the opinion of the co-rapporteurs, such methods and policy are indicating a worrying trend to rule the country as “police state”. If this is confirmed, Azerbaijan’s membership of the Council of Europe, by definition an assembly of countries sharing the same democratic values, has totally lost its meaning.

E.        A new era in Azerbaijani politics: change or continuity?

44.       President Ilham Aliyev’s investiture took place on 31 October 2003. Large-scale festivities were organized in Baku.

45.       On 5 and 6 November 2003 the newly elected President issued decrees appointing the new government. Most of the previous ministers and emblematic figures of Heydar Aliyev’s era were reconfirmed in their previous positions, (the Minister of Interior, Minister of Defense, Minister of National Security, Minister of Finance, Minister of Taxes, Minister of Labour and Social Protection, Minister of Economic Development, as well as the Head of the Customs Office). The composition of this government surprised a number of international interlocutors who were expecting a change in the ruling team to the benefit of a new generation of politicians and technocrats.

46.       The newly-elected president and his government will face serious challenges. The coming decade will see a number of crucial developments for the country. With the opening of the Baku-Ceyhan pipeline in 2005, the first revenues from oil exploitation will accumulate, creating a new economic and financial environment. This afflux of money will be an important advantage boosting necessary reforms and bringing the whole country to a satisfactory level of development. In this perspective the co-rapporteurs welcome the recent presidential initiative to work on a specific programme aiming at regional development.

47.       There is a real need to reaffirm and put in practice Azerbaijan’s commitment to democratic values and principles, and in particular to put an end to the remaining undemocratic habits and practices inherited from the old soviet era which were again observed during the election period. Much is expected from the new leadership in this field. In the opinion of the co-rapporteurs, the new team should continue reforming Azerbaijan in a less centralised and authoritative way. It is understood that such a transition cannot happen in a day and that reformers might face significant resistance from the factions of power interested in preservation of privileges and economic monopolies. Nevertheless it is more urgent than ever to proceed with the reforming of the state and mentalities and in this regard many hope that Ilham Aliyev, as representative of a new generation of leaders in the country and in the region, will prove to be up to the task.

48.       The co-rapporteurs believe the government needs full legitimacy and support from the nation to succeed in this enterprise. Therefore, the new leadership should acknowledge that serious violations occurred during the presidential elections, and recognise the necessity for an independent, thorough and expeditious investigation. Separate investigations should address the issues of election fraud and the repression of post electoral demonstrations and the violence that occurred in the evening of the election day and the day after.

II.       FUNCTIONING OF DEMOCRATIC INSTITUTIONS

A.       Separation of powers

49.       In their previous report, the co-rapporteurs had - in detail - described the necessary changes to enhance the principle of separation of powers in the current system. To date, none of these recommendations have been seriously addressed. Among other points, they wish to stress once more the inadequacy of the constitutional provisions relating to the separation of powers, insofar as the principle is not applied in practice.

50.       The Parliament has still no possibility of exercising genuine oversight of the government's activities, which means that the public at large is similarly excluded. The co-rapporteurs wish to recall that Parliament must be able to exercise its right to question members of the government and receive precise answers. The right to introduce motions of no confidence would require a reform of the Constitution, and the co-rapporteurs regret that this provision was not included in the Constitution by the 24 August 2002 referendum.

51.       In addition to these remarks on the constitutional framework, the co-rapporteurs wish to comment on the functioning of the Parliament. The co-rapporteurs were shocked by the repeated and blunt demonstrations of support from the members of Parliament to the incumbent president or his father and the rude and slanderous speeches against opposition representatives. Although individual deputies have the right to freely express themselves, they consider that in too many instances the Parliament simply voiced state propaganda which seems inadequate and excessive in this case. They also regret the negative and primitive spirit which dominates the relations between opposition and pro-governmental forces that led, several times this year, to the unacceptable situation of deputies being insulted and assaulted in public.

52.       The co-rapporteurs would like again to stress the important role that Parliament has to play in the elaboration and drafting of legislation. The experience of the drafting of the electoral code showed once more that the presidential administration plays in this process a central and crucial role, taking over in certain cases the parliament’s mandate and duties.



53. Although this issue remains controversial, it seems that the text of the electoral code enacted by the President was different from the one adopted by the Milli Mejlis. Given the importance of the good functioning and independence of the parliament, it would have been preferable that no doubts could be cast on the voting of this text by the Milli Mejlis.

²²



B.        Missed opportunities for the Parliament to mediate in favour of respect of human rights

54. The co-rapporteurs regret that the Parliament does not - generally - play an active role or try to clarify the situation when conflicts arise opposing citizens to the executive power by way of questions to the government and other parliamentary initiatives. Neither in the case of the Nardaran insurrection, nor in the case of post election demonstrations, when in both instances police interventions led to brutal clashes and death of civilians, has Parliament’s intervention resulted in concrete action or contributed to the solution of the crisis. The co-rapporteurs hope that the Parliament will address the above-mentioned issues and set up relevant inquiry commissions to shed light on these unfortunate events.



C.       Lack of action of the Ombudsman institution

55.       Similarly, they were expecting the Ombudsman institution to play a responsible role as provided by its mandate. According to article 1 of the chapter I of the Law on the Ombudsman²³²⁴“The Ombudsman of the Republic of Azerbaijan shall be an independent institution set up to protect the human rights and freedoms as enshrined in the Constitution of the Republic of Azerbaijan and international agreements which the Azerbaijan Republic is party to, and promote the observance of these rights by the state and municipal bodies and officials as well as the restoration of the violated rights. According to article 1 of the chapter II of same Law, the Ombudsman “shall investigate the complaints lodged by the citizens (…) as to violation of human rights”. The co-rapporteurs were disappointed to observe a lack of constructive action of the Ombudsman institution during the above-mentioned crisis. They wish the Ombudsman institution to give priority to actively investigating human rights violations and seek remedies according to the rules and principles of the ECHR. At the time of writing this report, the co-rapporteurs conclude that the Ombudsman institution has still failed to do so.

56.       They hope that in pursuance of Chapter II, article 8.4 of the Law which provides that “complaints may be lodged with the Ombudsman within a period of one year from the date on which an alleged violation of rights and freedoms of the person concerned occurred or he/she became aware of that violation”; action will be further undertaken to redress violated citizen’s rights. In particular they strongly recommend that cases of illegal dismissal of citizens should be seriously addressed²⁵²⁶.

D.       Law enforcement bodies and respect of basic human rights

57.       Upon accession to the Council of Europe - three years ago - Azerbaijan pledged “to prosecute members of the law-enforcement bodies who have infringed human rights (particularly the prohibition of torture) in the course of their duties” (Opinion 222 (2000), paragraphs 14.iv.a and c).

58.       In the 2002 report the co-rapporteurs had noted that the Azerbaijani authorities had made some efforts to improve prison conditions, and noted that the Parliament had ratified on 25 December 2001 the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and its protocols and therefore formally fulfilled the commitment undertaken in paragraph 14.i.c of Opinion 222.

59.       Nevertheless cases of torture and ill-treatment in detention are still reported. The co-rapporteurs strongly recall that adoption and ratification of Conventions and protocols do not make sense if they are not respected and applied. The fulfillment of commitments and obligations not only consists of formal undertakings and reforms but has to bring about concrete and positive effects on the country’s situation.

60.       In 2003, the co-rapporteurs can only conclude that efforts undertaken in this sphere are far from satisfactory. On the contrary, numerous reports denouncing brutal ill-treatment of prisoners reached the co-rapporteurs and cases of torture in detention centres were verified by international observers.

61.       Such ill-treatment is against basics human rights principles endorsed by Azerbaijan when it signed and ratified the European Convention on protection of Human Rights and additional protocols. Either the State authorities are not in a position to control the misbehaviour of law-enforcement officers, or such infringements are still tolerated in this country. Whatever the reasons, these practices must stop.

62.       They re-iterate their recommendation to develop and multiply training on human rights for law-enforcement bodies and urge the Azerbaijani authorities to take all necessary steps in order to effectively control the conduct of police and avoid repetition of such incidents. It is in their opinion absolutely necessary to investigate all allegations of torture and ill-treatment and to take serious measures to eliminate such practices. In addition, according to the above-mentioned commitment, they expect the persons responsible for ill-treatment to be prosecuted and sanctioned accordingly.



III.       FUNDAMENTAL FREEDOMS

A.       Restrictions to the freedom of expression

63.       In the year since the publication of the last report in September 2002, the co-rapporteurs observed a seriously worsening trend and new restrictions imposed on the freedom of expression and information. They can only deplore this recent evolution.

Voters’ rights

64.       The co-rapporteurs and the members of the election observation delegation were seriously disturbed and shocked by the anxiety and fear expressed by citizens during the election. Citizens reported in numerous instances that strong and insidious pressure had been exercised at village or community level to ensure that the majority of residents would vote for the candidate of the governing majority. The citizens’ fear has been voluntarily used and exploited by the executive bodies’ representatives to make sure the voting process would confirm with expected results. The voters reported that even if this year the ballot voting paper was put in an envelope, they had no trust in voting secrecy.

65.       In other cases, the observers noted that in polling stations cameramen were hired by the Governor’s office or the Regional election committee to film the whole voting process and the voters in action. The presence of cameras was definitely badly perceived by the voters, under strong pressure to vote as requested or expected and increased the voter’s incredulity in the secrecy of the vote.

66.       The mentalities in Azerbaijan and in particular in the regions remain very traditional and people are usually respectful of authorities. In small village-communities it appears quite easy to influence voters. It is a shame that certain regional authorities organised intimidation campaigns to control as much as possible the voters’ intention, using in certain instances unfair, dishonest and illegal methods.

Situation of media

67.       The co-rapporteurs reiterate their disappointment as regards the media situation in Azerbaijan. Not only are the basic principles of freedom of media infringed but the media monitoring of the election campaign showed undeniable bias in favour of the candidates of the majority in power, Ilham Aliyev and his father. The co-rapporteurs deplore the evolution of the media situation in Azerbaijan since their last report. It seems that none of the recommendations included in the 2002 report were taken into consideration and very little undertaken to improve the situation of media in this country. Thus Azerbaijan has failed in the media sphere to fully comply with its obligations and commitments.

68.       In the months leading to the election, major opposition newspapers faced lawsuits as a result of their criticism of government officials and for publishing information on corruption and financial scandals. As a result, shockingly high and disproportionate fines were imposed by the local courts. In some cases, this led to the interruption of publication of newspapers forced into bankruptcy. In addition, due to recent modification of legislation, the drastically reduced financing of newspapers through advertisements has increased the vulnerability of media to financial and political pressures.

69.       Taking into consideration the pre-electoral context and being aware of the problems linked to the independence of the judiciary in Azerbaijan, as well as of the traditional objection to criticism by the leadership, the co-rapporteurs cannot but suspect an obvious effort to silence criticism expressed by opposition media. This was further exacerbated by the systematic harassment and intimidation of journalists, including physical and verbal attacks, detention, various forms of pressure, threats, and editorial interference akin to censorship.

70.       Distribution of the press is a matter of concern too. According to local media, representatives from the executive bodies including the mayor’s office have developed tight control on the press available for sale in the kiosks and have taken measures requiring newspapers' salesmen to refuse opposition newspapers.

71.       State but also private printing houses have allegedly been “recommended” not to accept printing orders from opposition newspapers. At the time of writing this report, Azadliq, Yeni Musavat, Baki xabar, Hurriyyet, Yeni Zaman, and the Russian language paper Novoye Vremya have been refused access to the state-owned printing press and, as a consequence, could not publish regularly their editions since 15 November 2003. Private printing houses approached by the editors of these newspapers were told that due to shortage of paper their request could not be met. The price of paper per ton was raised from 500 USD to 1000 USD in the month after the election and is seen as a deliberate attempt by the authorities to apply pressure on the opposition and independent media.

72.       Television is by far the most important source of news in Azerbaijan where 95% of public opinion is influenced by it. State TV broadcasts nation-wide and is among the most influential media outlets. It is inadmissible that the Azerbaijani authorities have not yet fulfilled their commitment to create an public and independent broadcasting service. The law on public TV, examined in second reading by the Parliament, is still awaiting adoption. The co-rapporteurs deplore the fact that there were no public television broadcasts in Azerbaijan during the campaign, which might have ensured equal and unbiased access to the media for all candidates and probably influence the outcome of the election.

73.       The results of the OSCE/ODIHR²⁷²⁸ TV monitoring during the campaign are appalling. Although State TV complied with legal provisions on allocation of free time for all candidates, Ilham Aliyev - in his capacity of Prime minister - benefited from a large coverage in the analytical and news programmes. In the four weeks preceding the election, Ilham Aliyev received 2 hours and 36 minutes when other candidates received a total of 12 seconds in the same period. Private broadcasters (Lider TV, Space TV, ANS TV and ATV) were also overwhelmingly biased in favour of Ilham Aliyev. Costs of political advertising were significantly high by local standards, which limited the possibilities of parties to buy airtime. In addition, in the last week of the campaign, the State TV, and some private stations, refused to sell airtime to candidate Isa Gambar.

74.       It is to be regretted that during the whole campaign neither the Central election commission nor the National Council on radio and television were able to make sure the provisions of the electoral code were applied as regards equal campaigning conditions for all candidates. Such failure of the system, already observed during previous elections in Azerbaijan in 1998 and 2001, needs to be corrected and controlling mechanisms should be elaborated with a view to future elections, in particular the municipal elections scheduled in 2004.

B.       Freedom of peaceful assembly

75.       Obviously the implementation of the principle of freedom of peaceful assembly enshrined in Art. 49 of the Azerbaijani Constitution raises serious concern. In particular during the election campaign numerous complaints reported hindrance to the free exercise of this fundamental right.

76.       The legal framework institutes a legal obligation to request beforehand authorisation to organise street meetings. It has been observed that the granting of such authorisation is administered in certain cases with strong bias. Requests from opposition parties take longer to be decided upon, and the places allocated to them are generally situated in remote areas and cannot not easily be reached by citizens (far from subway stations for example). It is to be noted that political parties never receive positive answers to their request to gather in the centre of the city of Baku. In the regions, local branches of political parties complained they repeatedly face unexplained refusals to their successive requests to hold meetings.

77.       During the campaign too, restrictions to the freedom of assembly and to the right to campaign were imposed on opposition parties. This limited the capacity of opposition candidates to conduct their campaign and limited public participation in meetings (roadblocks, heavy police presence). Local authorities routinely denied permission to opposition parties to congregate in central outdoor locations, leading in certain instances to physical confrontation between police and supporters. Owners of buildings who might have allowed opposition meetings to take place in their premises were under pressure to refuse or cancel these meetings. In many reported cases public sector employees had been instructed to attend pro-governmental meetings while they were discouraged from taking part in opposition ones. Such practices are unacceptable and the authorities should act in order to put an end to such restrictive measures and ensure that no possible form of intimidation is repeated in the course of the next elections.

78.       The co-rapporteurs cannot but deplore such reports of obvious violations of candidates’ and citizens’ rights. Election is a political contest where all parties should have an equal access to resources and participate in the political debate. It is necessary that politics in Azerbaijan allow political contestation and contradictory or other opinions. While observing the campaign, the co-rapporteurs did not see positive developments in this direction.

79.       The co-rapporteurs have already mentioned that they were shocked by the excessive and unsanctioned repression of the post-election demonstrations by the law enforcement bodies. They wish to remind the Azerbaijani authorities that the fact that opposition parties feel that their requests are treated in an unequal and discriminatory manner does not encourage them to follow the rules. Therefore they recommend easing the procedure for granting authorisation for peaceful meetings. In their opinion and with the good will of opposition parties, such a step would help establishing a peaceful and democratic climate in Azerbaijani politics. Also they take this opportunity to reiterate their strong disagreement with the policy of certain political parties threatening to call for public disorder and unrest during the election period.

C.        Freedom of association

80.       In the 2002 monitoring report the co-rapporteurs provided a series of recommendations for the expected improvement of the freedom of association in Azerbaijan. They particularly stressed the need to complete the legal framework (Law on association and public foundations) and to ease the registration procedures. Again this year a large number of complaints on the arbitrariness of the registration process reached the co-rapporteurs. NGOs, associations and foundations are still denied registration without explanation and in most of these cases with no notification, which prevents them from challenging the decision in the courts. Some instances concerned political parties.

81.       The co-rapporteurs have received no information that could enable them to note any progress or state that their recommendations have been taken into consideration at all. Some NGOs, foundations and political parties are still waiting to be formally registered; loopholes in the legal framework prevent fair and equal application of the rules.

82.       In addition, the law prohibits domestic organizations which receive more than 30% of their funding from foreign States’ budgets from observing elections. Although the electoral code provides individuals with the right to observe elections, this provision of the law restricts activities of the NGOs, reduces de facto public participation in the observation of elections and therefore undermines its transparency.

83.       Such restrictions on the freedom of association and obstacles to the implementation of the citizen’s rights to associate are unacceptable. A proper system of registration of associations and other entities as well as a concrete possibility to exercise the right to associate should be effectively guaranteed, since this is a basic principle in a European democracy, as enshrined in the ECHR.

D.        Development of civil society

84.       It goes without saying that, if in a country freedoms of expression, assembly and association face strong restrictions, the development of its civil society is similarly hampered. In Azerbaijan the co-rapporteurs have observed that the working difficulties faced by representatives of civil society have severely undermined their capacity to play their role in Azerbaijani society. Nevertheless their activity is more and more popular and it seems that citizens learn quickly what type of assistance and support they can expect from NGOs. In the last decade, NGOs and actors of the civil society have developed a genuine ability to address human rights issues and the co-rapporteurs would like to take this opportunity to thank all of those representatives who have assisted them in their task. They encourage civil society representatives to continue the positive work they are doing, in particular to develop their presence and activities also in the regions of Azerbaijan.

85.       Today one can say that a civil society exists in Azerbaijan even if it is still immature and if the concept of “civil society” and its role are still relatively unknown by a major part of the population. In addition, individual rivalries often undermine the credibility and effectiveness of the work produced by these NGOs whose forces should unite to work together.

86.       The co-rapporteurs underline that since many NGO activists are also members of political parties, the NGO community sometimes suffers from being considered by public opinion and state authorities as acting on behalf of these political parties, often linked to the opposition. There is an obvious confusion between these two spheres of political and civil society, probably harmful to the strengthening of the role granted to the civil society in Azerbaijan. For this reason the co-rapporteurs believe that the dialogue between the authorities and the representatives of civil society should be de-politicized as much as possible, with both sides showing a constructive approach.

IV.        OTHER COMMITMENTS AND OBLIGATIONS REMAINING TO BE FULFILLED

87.       The co-rapporteurs would like to draw attention to additional areas where further action is urgently needed. This open-ended list will serve as a basis for further monitoring by the co-rapporteurs.

A.       Signature and ratification of conventions

88.       The co-rapporteurs congratulate the Azerbaijani authorities for honouring some important formal commitments like signature and ratification of European Conventions (39 Conventions and Treaties signed and ratified²⁹³⁰) and adoption of new laws (Law on Ombudsman, the law on the Bar Association and code of criminal procedure). In particular they welcome the recent ratification of the European Convention on Mutual Assistance in Criminal Matters, the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime in July 2003 and hope to see them applied and respected in Azerbaijan.


89.

But by early December 2003 fourteen signed conventions still awaited ratification including particularly the European Charter for Regional or Minority Languages, the European Social Charter (revised) the Civil Law Convention on Corruption, the Criminal Law Convention on Corruption and the European Convention on the Transfer of Proceedings in Criminal Matters. On 5 January 2004 the co-rapporteurs received information that two conventions on corruption have been ratified on 30 December 2003 and that the Revised Social Charter would be ratified by the parliament on 6 January 2004.

90.       Finally, some important Conventions remain to be signed and ratified including among others the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities

91.       The co-rappporteurs recommend the authorities to invest as much efforts and energy to effectively implement the conventions as they do to sign and ratify them.

B.       Public broadcasting

92.       Despite the readiness of the relevant department of the Council of Europe to assist the Azerbaijani authorities in this process and notwithstanding the repeated appeals of the co-rapporteurs to fulfill this particular commitment before the 2003 elections, three years have passed and Azerbaijan has still not set up a public television service in line with European standards.

93.       The co-rapporteurs pointed out in this report that the absence of public television in Azerbaijan had seriously shadowed the electoral campaign since the State media failed to provide equal conditions for candidates. This indicates that Azerbaijan is not ready to implement its commitments but also that it maintains a nearly total state control on the television channels and therefore totally undermines the development of independent media in this country.

94.       They urge the Azerbaijani to speedily remedy this shortcoming in close coordination and co-operation with the Council of Europe. The National Council on radio and television should begin its work and the three remaining members of this Council need to be appointed rapidly and “democratically” as requested by the Council of Minister’s recommendation 2023 (2000). The co-rapporteurs insist that the composition of this Council must reflect the commitment of Azerbaijan to create an independent public broadcasting service and not another state owned or national channel.

C.       Media

95.       Besides the above mentioned calls for improving and guarantying the freedom of expression, freedom of information and the independence and good functioning of the media, the co-rapporteurs would like to remind the Azerbaijani authorities of another matter of concern: the Council of Europe has still not received for appraisal the draft law on Public Information. In addition it is necessary to clarify the status of the Presidential decree on State Secrets dated 24 August 2002 which raised serious concerns. The co-rapporteurs consider that the authorities should elaborate a better definition of circumstances and responsibility for defamation crimes. In addition they recommend that reasonable ceilings should be introduced for defamation fines, based on the current economic situation in the country

D.       Law and status of the Constitutional court

96.       Already in 2002 the co-rapporteurs reminded the authorities of the need to adopt the law on the Statute of the Constitutional Court and further amend accordingly the relevant procedural codes, essential to the proper functioning of this newly created institution. The co-rapporteurs strongly encourage the relevant authorities to expedite this and grant citizens the right to appeal to the Constitutional Court, as decided in the constitutional referendum in August 2002. The rapporteurs note with satisfaction that this law was adopted on 23 December 2003.

E.       Other issues

97.       Finally, they recall the need for implementing all commitments made in the following fields: fight against corruption (adoption of the Law on Corruption taking into consideration recommendations of the Council of Europe), strengthening the independence of the legislature vis-à-vis the executive,, implementation - in view of the forthcoming municipal elections - of the recommendations made by the Congress for Local and Regional Authorities in Europe (CLRAE), development of an adequate legal framework for the constitutional provision establishing an alternative military service to be implemented in compliance with European standards.




CONCLUSIONS

98.       The co-rapporteurs quite understand that a country which has known centuries of absolutism and 70 years of communism needs time before it can attain the same degree of democratic standards as other Council of Europe member countries, which have taken a century to do so. They are conscious of certain improvements and progress, but regret they have not reached the desirable standards. The democratic substance of the political culture of a country which has been independent for only 12 years does not necessarily show the same maturity.

99.       As mentioned in Resolution 1305 (2002), honouring of commitments not only implies formal reform of the legal framework but also the respect and effective implementation of the legislation in the daily life of the people. The co-rapporteurs can only observe that Azerbaijan has yet failed to do so.

100.       Over and above the commitments as such, it is Azerbaijan’s democratic process that has been seriously vitiated by the massive frauds, irregularities and violence that occurred during the elections. This greatly marred the image of Azerbaijan abroad.

101.       The rapporteurs therefore await substantial progress regarding a number of commitments and expect the authorities to take a more responsible line as to the undertakings accepted. It is indispensable that the new leadership in Azerbaijan takes into consideration the remarks and recommendations provided by the co-rapporteurs in this report and proceed with the necessary arrangements to remedy the observed shortcomings.

102.       In any event, the Monitoring Committee could not envisage closing the current monitoring procedure in particular before parliamentary and presidential elections are democratically and satisfactorily held in the country. Azerbaijan must prove capable of running free and fair elections in line with internationally accepted standards.

103.       The co-rapporteurs therefore urge the Azerbaijani authorities:

-        to set up - with the participation of the Council of Europe - the necessary enquiry commissions to bring to light the recent unfortunate events and infringements as mentioned in this report. It is recommended that the results of such investigations be published;

-       to release or speedily bring to trial supporters and leaders of opposition political parties detained in the post-election period. All detainees must be granted access to their lawyers and be afforded the right to a fair trial and their sentences should be appropriate. The presumption of innocence should be applied. It is more than necessary that the Azerbaijani authorities take all necessary measures to make sure that none of the cases under investigation result in creating new cases of political prisoners;

-      to take the necessary measures to prevent impunity, law-enforcement officials suspected of ill-treatment and torture should be prosecuted and sanctioned accordingly;

-      to take measures and legislate in order to put an end to any forms of undue violence, detention, intimidation threats or pressure by public authorities on media representatives and journalists, NGOs, party supporters and leaders or their relatives;

-       to ensure that election officials responsible for election frauds and other violations of the electoral code are brought to justice;

-      to publish with details and explanations the election results in their entirety, per polling station and to officially acknowledge the serious infringements during the 2003 election process. To take all necessary measures for such dysfunctions and falsifications to be corrected and kept under control for the forthcoming polls;

-       to prepare a new civil register with a view to improving the currently deficient voters’ lists. The compilation of voters’ lists should be transparent and start immediately in order to ensure proper registration of voters for the future municipal elections scheduled in 2004;

-       to effectively continue and implement without delay the reform of the judicial system, in order to guarantee full independence and credibility of this institution, taking into account the recommendations made by the Council of Europe;

-      to speedily remedy the current deficiencies that hamper the good functioning of the media in Azerbaijan and in particular to take measures to put an end to the current paper shortage in order to ensure that the written press can properly function in Azerbaijan;

-      to take into account all recommendations referred to in this report, in particular to fulfil the remaining obligations and commitments specified under chapter IV of the report.

APPENDIX 1

PARLIAMENTARY ASSEMBLY
OF THE COUNCIL OF EUROPE

Opinion No. 222(2000)³¹
Azerbaijan’s application for
membership of the Council of Europe

(Extract from the Office database of the Council of Europe - June 2000)

1. The Republic of Azerbaijan applied to join the Council of Europe on 13 July 1996. In Resolution (96) 32 of 11 September 1996 the Committee of Ministers invited the Parliamentary Assembly to give an opinion on this request in accordance with Statutory Resolution 51 (30A).

2. The Parliament of the Republic of Azerbaijan obtained Special Guest status with the Parliamentary Assembly of the Council of Europe on 28 June 1996. This application was considered in the light of the adoption of Recommendation 1247 (1994) on the enlargement of the Council of Europe, in which the Assembly stated that “in view of their cultural links with Europe, Armenia, Azerbaijan and Georgia would have the possibility of applying for membership provided they clearly indicate their will to be considered as part of Europe”.

3. Assembly delegations observed the general election in November 1995 and the presidential election in October 1998. A delegation from the Congress of Local and Regional Authorities of Europe (CLRAE) observed the first municipal elections in December 1999 and in March 2000. Serious shortcomings in some elections were noted. Thus, the Assembly should observe the forthcoming parliamentary elections.

4. Since 1996 Azerbaijan has been taking part in various Council of Europe activities through the intergovernmental co-operation and assistance programmes, and in the work of the Assembly and its committees through its Special Guest delegation.

5. Azerbaijan is already a party to the European Cultural Convention and to the Convention on the Recognition of Qualifications concerning Higher Education in the European Region, as well as to the Open Partial Agreement on Prevention of, Protection against and Organisation of Relief in Major Natural and Technological Disasters. In March 2000, the country deposited the instruments of ratification to eight other European conventions to which it will shortly become a party. Further requests by Azerbaijan to accede to Council of Europe conventions are currently under consideration.

6. The Assembly considers that Azerbaijan is moving towards a democratic, pluralist society in which human rights and the rule of law are respected, and, in accordance with Article 4 of the Statute of the Council of Europe, is able and willing to continue the democratic reforms initiated in order to bring its entire legislation and practice into conformity with the principles and standards of the Council of Europe.

7. To its great satisfaction, the Assembly has been informed that Azerbaijan abolished the death penalty in 1998.

8. In asking the Assembly for an opinion on the membership application, the Committee of Ministers reiterated "a closer relationship between the Caucasian countries and the Council of Europe would demand not only the implementation of substantial democratic reforms, but also their commitment to resolving conflicts by peaceful means".

9. The Parliamentary Assembly considers that the accession of both Azerbaijan and Armenia could help to establish the climate of trust needed for a solution to the Nagorno-Karabakh conflict.

10. The Assembly considers that the OSCE Minsk Group is the optimum framework for negotiating a peaceful settlement to this conflict.

11. The Assembly takes note of the letter from the President of Azerbaijan reiterating his country’s commitment to a peaceful settlement of the Nagorno-Karabakh conflict and stressing that Azerbaijan’s accession to the Council of Europe would be a major contribution to the negotiations process and stability in the region.

12. The frequency of the meetings between the presidents of the two countries has been stepped up. The speakers of the parliaments of Azerbaijan, Armenia and Georgia have decided to institute regional parliamentary co-operation, consisting in particular of meetings of the speakers of the parliaments and parliamentary seminars to be held in the capitals of the three countries and in Strasbourg. The first meeting in the region, which was held in Tbilissi in September 1999, made it possible to establish an atmosphere of trust and détente between the parliamentary delegations of Azerbaijan and Armenia.

13. The Assembly calls on the Azerbaijani and Armenian authorities to continue their dialogue with a view to achieving a peaceful settlement of the Nagorno-Karabakh conflict and giving new impetus to regional co-operation.

14. The Parliamentary Assembly takes note of the letters from the President of Azerbaijan, the speaker of the parliament, the Prime Minister and the chairmen of the political parties represented in Parliament, and notes that Azerbaijan undertakes to honour the following commitments:

i. as regards conventions:

a. to sign, at the time of its accession, the European Convention on Human Rights (ECHR) as amended by Protocols Nos. 2 and 11 thereto, and Protocols Nos. 1, 4, 6 and 7;

b. to ratify the ECHR and Protocols Nos. 1, 4, 6 and 7 thereto during the year following its accession;

c. to sign and ratify, within one year of its accession, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and its protocols;

d. to sign and ratify, within one year of its accession, the Council of Europe’s Framework Convention for the Protection of National Minorities;

e. to sign and ratify, within one year of its accession, the European Charter for Regional or Minority Languages;

f. to sign and ratify, within one year of its accession, the European Charter of Local Self-Government;

g. to sign and ratify, within two years of its accession, the European Outline Convention on Transfrontier Co-operation between Territorial Communities and Authorities and its additional protocols and the Council of Europe conventions on extradition, on mutual assistance in criminal matters, on laundering, search, seizure and confiscation of the proceeds from crime, and on the transfer of sentenced persons, and in the meantime to apply the fundamental principles contained therein;

h. to sign the European Social Charter within two years of its accession and ratify it within three years of its accession, and to strive forthwith to implement a policy consistent with the principles contained in the Charter;

i. to sign and ratify, within two years of its accession, the Criminal Law Convention on Corruption and the Civil Law Convention on Corruption;

j. to sign the General Agreement on Privileges and Immunities of the Council of Europe and the additional protocols thereto at the time of its accession, and to ratify these within one year of its accession;

ii. as regards the resolution of the Nagorno-Karabakh conflict:

a. to continue efforts to settle the conflict by peaceful means only;

b. to settle international and domestic disputes by peaceful means and according to the principles of international law (an obligation incumbent on all Council of Europe member states), resolutely rejecting any threatened use of force against its neighbours;

iii. as regards domestic law:

a. to revise legislation on elections, particularly the Law on the Central Electoral Commission and the Electoral Law, taking account of the recommendation put forward by the international observers during previous elections, so that the next general elections in autumn 2000 can confirm definitively the progress made and their results can be accepted by the majority of the political parties that will participate in the elections, and can be considered as free and fair by international observers;

b. to amend, before the next local elections, the current legislation governing the powers of local authorities so as to give them greater responsibilities and independence, taking into account the recommendations made in this respect by the Congress for Local and Regional Authorities in Europe (CLRAE);

c. to continue the reforms aimed at strengthening the independence of the legislature vis-à-vis the executive, so that the former can exercise the right to put parliamentary questions to members of the government;

d. to adopt, within one year of its accession, the Code of Criminal Procedure, taking account of the observations by the Council of Europe experts;

e. to adopt, within one year of its accession, the law on the Ombudsman;

f. to adopt, within one year of its accession, a law on combating corruption and, within two years of its accession, a state programme on combating corruption;

g. to adopt, within two years of accession, a law on alternative service in compliance with European standards and, in the meantime, to pardon all conscientious objectors presently serving prison terms or serving in disciplinary battalions, allowing them instead to choose (when the law on alternative service has come into force) to perform non-armed military service or alternative civilian service;

iv. as regards human rights and fundamental freedoms:

a. to sign an agreement with the International Committee of the Red Cross (ICRC) guaranteeing unrestricted and unreserved access by the latter to prisoners;

b. to release or to grant a new trial to those prisoners who are regarded as “political prisoners” by human rights protection organisations, especially Mr Iskander Gamidov, Mr Alikram Gumbatov and Mr Raqim Gaziyev;

c. to prosecute members of the law-enforcement bodies who have infringed human rights (particularly the prohibition of torture) in the course of their duties;

d. 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;

e. to re-examine and amend the law on the media, within two years of its accession at the latest;

f. to turn the national television channel into a public channel managed by an independent administrative board;

g. 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;

h. to re-examine and amend, at the latest within one year of its accession, the rules governing registration of associations and appeals procedures;

v. as regards the monitoring of commitments:

a. to co-operate fully in the implementation of Assembly Resolution 1115 (1997) on the setting up of an Assembly Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee); and

b. to co-operate fully in the monitoring process established pursuant to the declaration adopted by the Committee of Ministers on 10 November 1994 (95th session).

15. The Parliamentary Assembly notes that Azerbaijan shares fully its understanding and interpretation of the commitments entered into, as spelt out in paragraph 14 and intends:

i. to re-examine and amend the law on the Bar, at the latest within three years of its accession;

ii. to re-examine the conditions of access to the Constitutional Court and grant access also to the Government, the Prosecutor General, courts at all levels and – in specific cases – to individuals, at the latest within two years of its accession;

iii. to re-examine and amend the procedures for appointing judges and the duration of their term of office, at the latest within three years of its accession.

16. On the basis of these commitments, the Assembly is of the opinion that, in accordance with Article 4 of the Statute of the Council of Europe, Azerbaijan is able and willing to fulfil the provisions of Article 3 of the Statute, setting forth the conditions for membership of the Council of Europe: “Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council (of Europe).”

17. With a view to ensuring compliance with these commitments, the Assembly has decided to monitor the situation in Azerbaijan closely, with immediate effect from the date of accession, pursuant to its Resolution 1115 (1997).

18. On the understanding that the commitments set out above are firm and will be fulfilled within the stipulated time limits, the Assembly recommends that the Committee of Ministers:

i. invite Azerbaijan to become a member of the Council of Europe;

ii. allocate six seats to Azerbaijan in the Parliamentary Assembly;

and requests that the necessary additional resources be made available.

19. Furthermore, in order to enable Azerbaijan to honour its commitments and obligations as a member state, the Assembly also recommends that the Committee of Ministers support the specific co-operation and assistance programmes required for implementation of the obligations and commitments entered into by this country.

APPENDIX 2


Resolution 1305 (2002)

Resolution 1305 (2002)³²

Honouring of obligations and commitments by Azerbaijan

1. The Parliamentary Assembly welcomes the efforts Azerbaijan has made since its accession to the Council of Europe on 25 January 2001 towards honouring its obligations and commitments, which it accepted in Opinion No. 222 (2000). Nevertheless, it notes that in a number of spheres Azerbaijan still needs to take substantial measures to improve the situation of the majority of the population and honour its commitments.

2. With regard to signature and ratification of conventions:

i.        the Assembly is pleased to note that Azerbaijan has signed and ratified thirty-one conventions, including most of those included in its formal commitments;

ii.       nevertheless, some important conventions remain to be signed and ratified, including the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities and its additional protocols, the Criminal Law Convention on Corruption and the Civil Law Convention on Corruption, within the time limits specified in Opinion No. 222;

iii.        some conventions which have already been signed need to be ratified, such as the European Social Charter, the European Charter for Regional or Minority Languages, the Convention on Mutual Assistance in Criminal Matters and its additional protocols, and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime

3. With regard to legal reforms:

i.        the Assembly recognises that Azerbaijan has – in close co-operation with the Council of Europe experts – adopted laws or revised its legislation in many fields, including the Law on the institution of an Ombudsman, the Law on advocates and advocacy and the Code of Criminal Procedure. The Assembly recommends continuing this co-operation with the Council of Europe and asks Azerbaijan to improve in particular the law on advocates and advocacy and the Code on Criminal Procedure so as to ensure their full compatibility with the Organisation’s principles and standards;

ii.        the Assembly welcomes the co-operation initiated with the Council of Europe regarding the draft law on the Constitutional Court, the Anti-corruption Law, the Law on Advocates and Advocacy and the Electoral Code; and it hopes that the recommendations made by the Council of Europe experts will be duly taken into consideration in the laws to be adopted. It also particularly calls for continued co-operation in appraising and improving media legislation and urges Azerbaijan to draft a law on national minorities.

iii.        the Assembly recalls that the honouring of commitments not only entails the formal reform of Azerbaijan’s legal framework, but also the respect and proper implementation of existing legislation in the daily life of the people of Azerbaijan. The Assembly urges Azerbaijan to take the necessary steps to ensure that the newly reformed legal framework is evenly and systematically implemented throughout the country;

iv.        the Assembly is informed that Azerbaijan has only partially honoured its commitment on ratifying conventions related to combating corruption. It recalls that combating corruption implies a commitment to an equitable evolution of society and a fair distribution of resources, and encourages the Azerbaijani authorities to take whatever steps are necessary to combat efficiently the rampant corruption that still exists in Azerbaijani society. The Assembly strongly encourages Azerbaijan to address its commitment regarding adopting an anti-corruption law and submit its draft to the Council of Europe experts for appraisal, as well as to draw up as quickly as possible a national programme for combating corruption;

v.        the Assembly regrets the absence of progress in the development of local self-government in Azerbaijan. The Assembly calls upon the Azerbaijani authorities to proceed with adapting their legislation to the principles of the European Charter of Local Self-Government as well as to define and implement a genuine decentralisation strategy taking into consideration all the recommendations of Council of Europe Directorate General I and the Congress of Local and Regional Authorities of Europe;

vi.        the Assembly urges the Azerbaijani authorities to speed up their efforts and co-operate actively with the Council of Europe in checking on the Azerbaijani domestic law’s compatibility with the European Convention on Human Rights.

4. With regard to separation of powers, the rule of law and democratic institutions:

i.        the Assembly notes that the executive in Azerbaijan still exercises a predominant role. It expresses deep concern over the undue interference of the executive in the functioning of institutions. The Assembly particularly calls for a reinforcement of impartiality in the procedure of nomination of judges;

ii.        it is to be regretted that Parliament exercises no oversight of the government's activities, which means that the public at large is similarly excluded from this process. The Assembly calls for reinforcement of the role of Parliament and the establishment of its independence from and its controlling role vis-à-vis the executive. The Assembly notes that its Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe intends to help this process by undertaking a more detailed evaluation of the current powers of Parliament and their exercise;

iii.        he Assembly has been informed that Parliament was consulted on the organisation of a referendum only after the presidential decree had established the date of the referendum, and regrets that the debate regarding this issue took place hastily, and at very short notice. Although Azerbaijani law does not require the President to conduct any preliminary consultations with Parliament, it would nevertheless have been desirable to determine a priori the opinion of Parliament on such important issues for the future political life of the country and its stability and inter-party political dialogue as amendments to the constitution. Not only should the thirty-nine amendments to the constitution have been discussed and approved much earlier by Parliament, but the politically sensitive issue of regrouping the thirty-nine changes into eight questions should have been decided by Parliament rather than by the administration.The Assembly recommends reinforcing the legislative role of Parliament, in particular in drawing up laws and in debating major political issues;

iv.        the Assembly welcomes the efforts that enabled the first Ombudsperson to be elected in Azerbaijan in July 2002. It conveys its best wishes for the newly established institution in Azerbaijan and underlines the importance of the independence of the Ombudsperson as well as his/her essential role in facilitating the effective implementation of the European Convention on Human Rights in Azerbaijan;

v.       the Assembly congratulates the Azerbaijani authorities for fulfilling their commitment and giving access to the Constitutional Court to the ordinary courts, the newly created ombudsman institution and, in specific cases, to individuals. It welcomes the introduction in the constitution of such provisions. It encourages Azerbaijan to maintain close co-operation with the Council of Europe for finalising and adopting the statute of the Constitutional Court.

5. With regard to pluralist democracy:

i.        the Assembly notes the co-operation initiated with the Council of Europe with regard to amending the Electoral Code, and hopes not only that the experts will be consulted for appraisal of the final version, but that their recommendations will be scrupulously taken into consideration. During the last parliamentary elections (2000-2001), as well as during the referendum of 24 August 2002, numerous dysfunctions and procedural irregularities were observed. The current reform process of the Electoral Code should take all these observations into consideration for the drafting of the new code. In particular, the Assembly hopes that the provisions regulating the composition of the electoral commissions, the participation of local observers, the adjudication of electoral complaints, the registration of candidates, the accuracy of voters’ lists, the training of the members of elections commissions and the transparency of the entire election process will be congruent with the Council of Europe and OSCE standards. The Assembly requests the Azerbaijani authorities to ensure that the law in question guarantee equal access of all political parties to the electoral process, and that it be implemented at least six months before the presidential elections;

ii.        the Assembly is disappointed that the Council of Europe was not consulted on the wording of the questions and the organisation of the 24 August 2002 referendum. Nevertheless, the Assembly welcomes the fact that the Azerbaijani authorities decided to present the constitutional changes in the form of eight questions, which enabled the voters to vote separately on the different issues submitted to referendum. As during most of the previous elections, numerous cases of fraud marred the election process and could cast serious doubts on the validity of the results of the impressive vote, indicating a turnout of over 83% of registered voters, out of which more than 96% voted in favour of the amendments proposed. It welcomes the fact that because of obvious falsifications, the results of the vote were cancelled in about 251 constituencies by the electoral authorities. It is to be regretted that this referendum, which could have given the Azerbaijani nation an opportunity for real confidence in the electoral process and helped in developing a democratic culture in the country with a better design of the procedures, failed to do so. Finally, it is welcomed that for the first time – with the assistance of the OSCE office in Baku – round tables were organised on television on the eve of the referendum between representatives of the government, opposition and civil society to debate publicly the controversy and political impact of this referendum;

iii.        the Assembly notes a growing need to grant citizens the fundamental right to take part in the political life of the country. The Assembly urges Azerbaijan to promote confidence and an inclusive climate in politics, particularly by involving members of the opposition in the round tables on the new Electoral Code;

iv.       the Assembly calls on Azerbaijan to ensure that the forthcoming presidential elections are held – on the basis of the newly reformed Electoral Code – fully in respect of international standards in order to achieve a broad political consensus.

6. With regard to human rights and fundamental freedoms:

i.        the Assembly has noted certain steps undertaken by the Azerbaijani authorities to improve the human rights situation. Nevertheless, it calls for effective arrangements to protect freedom of expression, of association and of peaceful assembly which are necessary for the sound development of democratic society in Azerbaijan. It draws particular attention to the promotion of the specific rights of religious and national minorities;

ii.        having noted the absence of real dialogue between the ruling party and opposition forces, as they are very poorly represented in Parliament, the Assembly calls for efforts to be made not only on the governmental side but also on the opposition side to reach a satisfactory level of co-operation and dialogue necessary for the development of a real pluralist democracy. It particularly recommends that the authorities offer the opportunity for non-represented parties to express their opinions in a peaceful manner by organising regular exchanges of views on important subjects and draft laws;

iii.        the Assembly is disturbed and shocked by a number of reported human rights violations and urges the Azerbaijani authorities to take all necessary measures to guarantee all citizens with those basic freedoms. It calls for improvement of the working modalities and registration procedures of local non-governmental organisations and for a better and more fair administration of requests for public demonstrations. The Assembly reiterates that it is unacceptable to the Council of Europe that the development of civil society be hampered by excessive administrative or political barriers;

iv.        the Assembly deplores the cases of overreaction leading to undue use of weapons by police forces against civilians that were reported recently. It is very concerned about the government’s response to public protests related to social issues. It calls for the police forces to react in an adequate and proportionate manner when civilians and citizens are involved in police intervention and appeals to the authorities to address and remedy the causes of this social unrest.

7. With regard to freedom of the media:

i.        the Assembly is pleased to note progress in the field of media legislation. It welcomes the co-operation initiated with the Council of Europe in this sphere. The Assembly expects that this fruitful co-operation will enable the Azerbaijani authorities to enact a law on public and private broadcasting and a decree on the creation of a national council on radio and television broadcasting that are fully in line with Council of Europe standards;

ii.        the Assembly is very concerned with cases of interference with freedom of expression, pressure on the independent media and harassment of journalists, and calls on Azerbaijan to take all necessary steps to guarantee freedom of expression and the independence of the media and journalists, and particularly to exclude the unacceptable use of administrative measures to restrict the freedom of the media;

iii.        The Assembly calls upon the Azerbaijani authorities to engage in dialogue as soon as possible with the Council of Europe in order to ensure that the decree of 11 September 2002 does not contradict Azerbaijan’s commitment to promote freedom of the media.

8. With regard to political prisoners:

i.        the Assembly welcomes the fact that the President has issued several pardons since the country’s accession to the Council of Europe. It takes note that among the pardoned prisoners a significant number were considered political prisoners by the Council of Europe experts;

ii.       the Assembly is aware that new trials of persons considered by the experts as political prisoners have started. It is concerned with reports of blatant violations of their procedural and other rights. It reiterates that these trials should respect all provisions for a fair trial as defined in the European Convention on Human Rights, including that they be accessible to journalists. It considers that these trials, which started several months ago, should not be dragged out for a long period and must be concluded rapidly;

iii.        the Assembly is profoundly disturbed by the fact that seven out of the seventeen pilot cases of persons found to be political prisoners by the Council of Europe experts are still detained and have neither been pardoned nor granted retrial, namely: Amiraslanov Elchin Samed Oglu (case No.5), Efendiyev Natig (case No.7) who is apparently seriously ill, Kazymov Arif Nazir Oglu (case No.15), Abdullayev Galib Jamal Oglu (case No.16), Guseynov Suret Davud Oglu (case No.17), Safikhanov Ilgar (case No.18), and Guseynov Guseynbala (case No.25);

iv.        the Assembly urges the Azerbaijani authorities to take the necessary steps as soon as possible to ensure the fulfilment of their obligations and recalls that, particularly in the case of sick detainees, release on humanitarian grounds should be considered;

v.       the Assembly reiterates that for a Council of Europe member state the detention of political prisoners is totally unacceptable. It insists that the Azerbaijani authorities show real determination to eradicate a practice which is a blot on Azerbaijani society, and that they avoid new imprisonments which are solely based on political activities;

vi.        the Assembly recalls that a democratic state which is a member of the Council of Europe should promote internal stability through constructive dialogue with all political forces in the country, and should avoid solving social and political discontent through practices resulting in new imprisonments of people for political reasons;

vii.       finally the Assembly stresses the importance of continued co-operation with the Council of Europe experts. It particularly asks the Azerbaijani authorities to provide the Council of Europe as quickly as possible with the requested documentation, including all the transcripts of judgments necessary for the examination of the remaining cases.

9. With regard to the settlement of the Nagorno-Karabakh conflict:

i.        the Assembly recognises and welcomes the undoubted efforts Azerbaijan has made to maintain regular high-level contacts with Armenia with a view to reaching a suitable and peaceful solution to this conflict;

ii.        however, the Assembly is concerned with the prevailing frustration, which is more and more frequently expressed in Azerbaijani society, at the deadlocked negotiations on the conflict;

iii.        the Assembly strongly hopes that the ongoing negotiation process – including the recent meeting of the presidents of both countries in Nakhitchevan – will soon lead to an acceptable settlement of the territorial conflict in line with the principles of the Council of Europe and international law;

iv.        it recalls that closing the monitoring procedure can only be envisaged upon fulfilment of all major commitments, which includes, in the case of Azerbaijan and Armenia, an agreement on the peaceful settlement of the Nagorno-Karabakh conflict including the occupied territories, which has been pending for more than eight years now.

10. In view of the above considerations, the Assembly concludes that certain progress has been made since its accession. However, the Assembly has to insist that Azerbaijan needs to make significant progress in honouring all of its obligations and commitments as a member state of the Council of Europe. Therefore, the Assembly decides to pursue the monitoring procedure in respect of Azerbaijan in close co-operation with the Azerbaijani delegation.

11. The Assembly urges the Azerbaijani authorities to improve as quickly as possible media legislation and the Electoral Code in particular, and to define and implement, together with the Council of Europe and the Congress of Local and Regional Authorities of Europe, a decentralisation strategy, aimed at increasing local governments’ competences, responsibilities and resources.

APPENDIX 3

Treaties signed and ratified or having been the subject of an accession on 09/01/04

Source: Treaty Office on http://conventions.coe.int

ETS No.	Title			Opening for signature	Entry into force	E.	N.	C.
001	Statute of the Council of Europe			05/05/49	03/08/49
		Ratification or accession: 25/01/01	Entry into force on : 25/01/01
002	General Agreement on Privileges and Immunities of the Council of Europe			02/09/49	10/09/52
		Ratification or accession: 16/01/02	Entry into force on : 16/01/02
005	Convention for the Protection of Human Rights and Fundamental Freedoms			04/11/50	03/09/53
	Signature: 25/01/01	Ratification or accession: 15/04/02	Entry into force on : 15/04/02
009	Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms			20/03/52	18/05/54
	Signature: 25/01/01	Ratification or accession: 15/04/02	Entry into force on : 15/04/02
010	Protocol to the General Agreement on Privileges and Immunities of the Council of Europe			06/11/52	11/07/56
		Ratification or accession: 16/01/02	Entry into force on : 16/01/02
018	European Cultural Convention			19/12/54	05/05/55	X
		Ratification or accession: 25/04/97	Entry into force on : 25/04/97
024	European Convention on Extradition			13/12/57	18/04/60	X	X
	Signature: 07/11/01	Ratification or accession: 28/06/02	Entry into force on : 26/09/02
030	European Convention on Mutual Assistance in Criminal Matters			20/04/59	12/06/62	X	X
	Signature: 07/11/01	Ratification or accession: 04/07/03	Entry into force on : 02/10/03
044	Protocol No. 2 to the Convention for the Protection of Human Rights and Fundamental Freedoms, conferring upon the European Court of Human Rights competence to give advisory opinions			06/05/63	21/09/70
	Signature: 25/01/01	Ratification or accession: 15/04/02	Entry into force on : 15/04/02
045	Protocol No. 3 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending Articles 29, 30 and 34 of the Convention			06/05/63	21/09/70
	Signature: 25/01/01	Ratification or accession: 15/04/02	Entry into force on : 15/04/02
046	Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto			16/09/63	02/05/68
	Signature: 25/01/01	Ratification or accession: 15/04/02	Entry into force on : 15/04/02
055	Protocol No. 5 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending Articles 22 and 40 of the Convention			20/01/66	20/12/71
	Signature: 25/01/01	Ratification or accession: 15/04/02	Entry into force on : 15/04/02
062	European Convention on Information on Foreign Law			07/06/68	17/12/69	X	X
		Ratification or accession: 26/06/00	Entry into force on : 27/09/00
085	European Convention on the Legal Status of Children born out of Wedlock			15/10/75	11/08/78	X	X
		Ratification or accession: 28/03/00	Entry into force on : 29/06/00
086	Additional Protocol to the European Convention on Extradition			15/10/75	20/08/79	X	X
	Signature: 07/11/01	Ratification or accession: 28/06/02	Entry into force on : 26/09/02
088	European Convention on the International Effects of Deprivation of the Right to Drive a Motor Vehicle			03/06/76	28/04/83	X	X
		Ratification or accession: 26/06/00	Entry into force on : 27/09/00
092	European Agreement on the Transmission of Applications for Legal Aid			27/01/77	28/02/77	X	X
		Ratification or accession: 28/03/00	Entry into force on : 29/04/00
098	Second Additional Protocol to the European Convention on Extradition			17/03/78	05/06/83	X	X
	Signature: 07/11/01	Ratification or accession: 28/06/02	Entry into force on : 26/09/02
099	Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters			17/03/78	12/04/82	X	X
	Signature: 07/11/01	Ratification or accession: 04/07/03	Entry into force on : 02/10/03
100	European Convention on the Obtaining Abroad of Information and Evidence in Administrative Matters			15/03/78	01/01/83	X	X
		Ratification or accession: 28/03/00	Entry into force on : 01/07/00
101	European Convention on the Control of the Acquisition and Possession of Firearms by Individuals			28/06/78	01/07/82	X	X
		Ratification or accession: 28/03/00	Entry into force on : 29/06/00
104	Convention on the Conservation of European Wildlife and Natural Habitats			19/09/79	01/06/82	X	X	X
		Ratification or accession: 28/03/00	Entry into force on : 01/07/00
112	Convention on the Transfer of Sentenced Persons			21/03/83	01/07/85	X	X
	Signature: 25/01/01	Ratification or accession: 25/01/01	Entry into force on : 01/05/01
114	Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty			28/04/83	01/03/85
	Signature: 25/01/01	Ratification or accession: 15/04/02	Entry into force on : 01/05/02
116	European Convention on the Compensation of Victims of Violent Crimes			24/11/83	01/02/88	X	X
		Ratification or accession: 28/03/00	Entry into force on : 01/07/00
117	Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms			22/11/84	01/11/88
	Signature: 25/01/01	Ratification or accession: 15/04/02	Entry into force on : 01/07/02
118	Protocol No. 8 to the Convention for the Protection of Human Rights and Fundamental Freedoms			19/03/85	01/01/90
	Signature: 25/01/01	Ratification or accession: 15/04/02	Entry into force on : 15/04/02
120	European Convention on Spectator Violence and Misbehaviour at Sports Events and in particular at Football Matches			19/08/85	01/11/85	X	X
	Signature: 28/03/00	Ratification or accession: 28/03/00	Entry into force on : 01/05/00
122	European Charter of Local Self-Government			15/10/85	01/09/88
	Signature: 21/12/01	Ratification or accession: 15/04/02	Entry into force on : 01/08/02
126	European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment			26/11/87	01/02/89	X	X
	Signature: 21/12/01	Ratification or accession: 15/04/02	Entry into force on : 01/08/02
135	Anti-Doping Convention			16/11/89	01/03/90	X	X
	Signature: 28/06/02	Ratification or accession: 04/11/03	Entry into force on : 01/01/04
141	Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime			08/11/90	01/09/93	X	X
	Signature: 07/11/01	Ratification or accession: 04/07/03	Entry into force on : 01/11/03
143	European Convention on the Protection of the Archaeological Heritage (Revised)			16/01/92	25/05/95	X	X	X
		Ratification or accession: 28/03/00	Entry into force on : 29/09/00
147	European Convention on Cinematographic Co-Production			02/10/92	01/04/94	X		X
		Ratification or accession: 28/03/00	Entry into force on : 01/07/00
151	Protocol No. 1 to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment			04/11/93	01/03/02
	Signature: 21/12/01	Ratification or accession: 15/04/02	Entry into force on : 01/08/02
152	Protocol No. 2 to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment			04/11/93	01/03/02
	Signature: 21/12/01	Ratification or accession: 15/04/02	Entry into force on : 01/08/02
155	Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby			11/05/94	01/11/98
	Signature: 25/01/01	Ratification or accession: 15/04/02	Entry into force on : 15/04/02
157	Framework Convention for the Protection of National Minorities			01/02/95	01/02/98	X	X
		Ratification or accession: 26/06/00	Entry into force on : 01/10/00
165	Convention on the Recognition of Qualifications concerning Higher Education in the European Region			11/04/97	01/02/99	X	X	X
	Signature: 11/04/97	Ratification or accession: 10/03/98	Entry into force on : 01/02/99

39 Treaty(ies) found.

Notes : Convention(s) and Agreement(s) opened to the member States of the Council of Europe and, where appropriate, to the :
E. : European non-member States – N. : Non-European non-member States – C. : European Community.
See the final provisions of each treaty.

APPENDIX 4

Comments by the Azerbaijanais authorities on the preliminary draft report

para. 14(i)(a)

The European Convention on Human Rights and Protocols Nos. 1, 4, 6 and 7 were signed on 25 January 2001.

para. 14(i)(b)

The European Convention on Human Rights and Protocols Nos. 1, 4, 6 and 7 were ratified on 25 December 2001.

para. 14(i)(c)

The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and its Protocols were signed on 21 December 2001 and ratified on 25 December 2001.

para. 14(i)(d)

The Framework Convention for the Protection of National Minorities was acceded to on 16 June 2000.

para. 14(i)(e)

The European Charter for Regional or Minority Languages was signed on 21 December 2001.

para. 14(i)(f)

The European Charter of Local Self-Government was signed on 21 December 2001 and ratified on 25 December 2001.

para. 14(i)(g)

The European Outline Convention on Transfrontier Co-operation between Territorial Communities and Authorities and its additional Protocols were signed on 6 January 2004 and are scheduled for being ratified on 13 January 2004.

The European Convention on Extradition was signed on 7 November 2001 and ratified 17 May 2002.

The European Convention on Mutual Assistance in Criminal Matters was signed on 7 November 2001 and ratified on 1 March 2003.

The European Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime was signed on 7 November 2001 and ratified on 1 March 2003.

The European Convention on the Transfer of Sentenced Persons was acceded to on 12 December 2000.

para. 14(i)(h)

The European Social Charter was signed on 18 October 2001 and ratified on 6 January 2004.

para. 14(i)(i)

The Criminal Law Convention on Corruption was signed on 21 May 2003 and ratified on 30 December 2003.

The Civil Law Convention on Corruption was signed on 21 May 2003 and ratified on 30 December 2003.

para. 14(i)(j)

The General Agreement on Privileges and Immunities of the Council of Europe and the additional Protocols thereto were acceded to on 4 December 2001.

para. 14(ii)(a)(b)

Settlement of the Nagorno-Karabakh conflict is being negotiated within the framework of the OSCE Minsk Group. The Republic of Azerbaijan continues taking all efforts to settle the conflict on the basis of the generally recognised principles of international law. However, Armenia does not demonstrate any willingness to settle the conflict.

para. 14(iii)(a)

The legislation on elections that had been in force by 2001 was substantially revised: a new Electoral Code was drafted with close assistance of the Venice Commission and the ODHIR-OSCE and, having been approved by these international institutions, was adopted on 27 May 2003.

para. 14(iii)(b)

The next local elections are to be held in December 2004. Nevertheless a certain number of specific legislative and administrative measures have been taken aimed at strengthening of the financial independence of municipalities, determination of municipality lands, transfer of property etc. Law On Administrative Supervision of Municipalities’ Activities of 13 May 2003 drafted and adopted in close co-operation with the Council of Europe experts stipulates certain guarantees for the protection of local self-government authorities from unlawful and arbitrary interference of State agencies with their activities. Law On Tax Service Bodies of Municipalities of 17 June 2003 is aimed at increasing of the financial capacities of municipalities. In August 2003, a draft Law containing a number of important amendments to the current legislation on municipalities was presented to the Council of Europe Secretariat for expert appraisal. The adoption of the Law is scheduled for Spring session of the Parliament. Besides, it has been decided to draft a Law On Management of Municipality Property with close involvement of the Council of Europe experts.

para. 14(iii)(c)

Constitutional Law On Additional Safeguards for the Right of the Milli Mejlis of the Republic of Azerbaijan to Resolve the Issue of Confidence in the Cabinet of Ministers adopted on 18 June 2002 provides for certain measures aimed at strengthening the independence of the legislature vis-à-vis the executive. According to the Constitutional Law, the Cabinet of Ministers is obliged to submit annual reports to the Parliament. Both the Parliament itself and individual parliamentarians are entitled to put questions to members of the Cabinet. Moreover, the Constitutional Law provides a specific mechanism for the implementation of this right.

para. 14(iii)(d)

The Code of Criminal Procedure was adopted on 14 July 2000.

para. 14(iii)(e)

Constitutional Law On the Human Rights Commissioner (Ombudsman) was adopted on 28 December 2001.

para. 14(iii)(f)

The draft Law On Combating Corruption has already passed two readings. Its final adoption is scheduled for 13 January 2004. The draft Presidential Decree on the Implementation of the Law on Combating Corruption, which is to be enacted upon signing of the Law, charges the Cabinet of Ministers with a task of preparing within a month a State programme on combating corruption.

para. 14(iii)(g)

The draft Law On Alternative Service will have been presented by 8 January 2004 to the Ago Group, upon their request, for providing an expert appraisal. In Azerbaijan there has not been a single case of conscientious objectors serving imprisonment or serving in disciplinary battalions.

para. 14(iv)(a)

An agreement with the International Committee of the Red Cross guaranteeing unrestricted access by the latter to prisoners was signed on 1 June 2000 and approved by a Presidential decree on 9 June 2000.

para. 14(iv)(b)

By Presidential decree of 29 December 2003, out of the list of 716 alleged political prisoners 63 were released, the sentences of two persons were half-reduced, and the life imprisonment of one prisoner was replaced by 20 years’ imprisonment. Among the released was also: Iskender Gamidov (pilot case No. 1), Ilgar Safikhanov (pilot case No. 18) and Aydin Shirinov (indicated in PACE Resolution 1272 (2002)).

By previous decrees were also released: Nariman Imranov (pilot case No. 14), Galib Abdullayev (pilot case No. 16), Hajibala Huseynov (pilot case No. 25), Galina Lebedeva and Muzakir Abdullayev (both indicated in PACE Resolution 1272 (2002)).

Rahim Gaziyev (pilot case No. 3) and Alikram Humbatov (pilot case No. 2) were retried. By the sentence of the Court of Appeal of Azerbaijan of 26 December 2003 Rahim Gaziyev’s life imprisonment was replaced by 15 years’ imprisonment and the confiscation of property that had been imposed was repealed.

It has been decided to hold new trials for Natig Efendiyev (pilot case No. 7) and Suret Huseynov (pilot case No. 17).

Retrial cases of Elchin Amiraslanov (pilot case No. 5) and Arif Kazimov (pilot case No. 15) are at present at the consideration of the Court of Appeal of Azerbaijan.

Taking into account the preliminary opinions of the Council of Europe independent experts of 12 December 2003 the Prosecutor General of Azerbaijan presented on 30 December 2003 an appellate protest with a view to retrying the cases of 5 prisoners out of the List (Ahmadov Anvar – Case No. 45, Ahmadov Natig – Case No. 51, Alikhanov Azer – Case No. 74, Mamedov Rafig – Case No. 416 and Razimov Afgan – Case No. 597).

So far 683 cases can be considered as having been settled; this comprises 95,4% of the entire List. Thus, there remain only 33 cases. On two of them the independent experts have provided their final opinion (cases Nos. 35 and 159); the unserved part of the sentence of the first prisoner (Vugar Babakishiyev) has been half-reduced; as to the second prisoner (Fakhraddin Agayev), a medical examination is being conducted with regard to his psychical stand. On 24 cases the independent experts have submitted only their preliminary opinions and no opinion has been received with respect to 7 cases out of the above-mentioned 33 cases.

However, in the view of PACE, there remain 59 cases (PACE takes into account also those 26 prisoners which have not been found as “political prisoners” in the preliminary opinions of the independent experts).

para. 14(iv)(c)

All relevant measures were adopted so that those members of law enforcement bodies who had violated human rights (particularly prohibition of torture, inhumane or degrading treatment, unlawful arrest or detention) did not do unpunished. Thus, in the period from 2001 to 2003 to appropriate criminal or disciplinary punishments for infringements of individual rights were subject 470 staff members of the said bodies. In particular, criminal proceedings were brought against 32; dismissed – 77; other disciplinary sanctions were applied to 361 officers.

para. 14(iv)(d)

Specific legislative, institutional and other measures have been adopted with a view to facilitating the realisation of freedom of expression and ensuring the independence of the media. The independent printing media have been granted certain important privileges and exemptions. Thus, media outputs are exempted from VAT as well as tax on profit, and there exists a governmental programme providing for certain preferences in using the communal and communication facilities. Double customs duties with regard to newsprint have been cancelled. Law On Television and Radio Broadcasting adopted on 25 June 2002 had been discussed at length with the Council of Europe experts. On 5 October 2002 the President of Azerbaijan enacted a decree on Creation of National Council on Radio-TV Broadcasting, which is considered to be fully compatible with the Council of Europe standards. The Council started functioning in January 2003. On 15 March 2002 the Media Council was formed by way of election. The composition of both Councils leaves no doubt as to their independent and impartial functioning.

para. 14(iv)(e)

Law On the Media of 7 December 1999 was revised on 28 December 2001. In particular, the provisions of the Law concerning the accreditation of journalists and the procedure of closure of a mass media organ were amended as recommended by the Council of Europe.

para. 14(iv)(f)

Law On Public Tele- and Radio Broadcasting drafted with assistance of the Council of Europe experts has already got through two readings. Its final adoption is scheduled for 13 January 2004.

para. 14(iv)(g)

The drafting process of Law On National Minorities is going on.

para. 14(iv)(h)

Law On State Registration and State Register of Legal Persons, which had been drafted in close co-operation with the Council of Europe experts and local NGOs, was adopted on 12 December 2003. The Law provides a substantially new registration procedure for legal persons, including NGOs.

para. 15(i)

A draft Law substantially amending the existing Law On Advocates and Advocacy of 28 December 1999 has recently been submitted to the Parliament. The draft was prepared together with the Council of Europe experts. Head of the OSCE Baku Office has addressed the Azerbaijani authorities with an initiative to hold in Baku on 15 January 2004 a widely represented forum for discussion of the said amendments, where the Council of Europe experts are also expected to participate. For this reason the adoption of the amendments has been adjourned for the Spring session of the Parliament.

para. 15(ii)

A new Law On the Constitutional Court was adopted on 23 December 2003. The law provides for direct access of individuals, all courts as well as of the Ombudsman to the Constitutional Court.

para. 15(iii)

By the referendum held on 24 August 2002 the respective constitutional provisions concerning the procedures for appointing judges and the duration of their terms of office were amended. Now all appellate judges are appointed by the Parliament. Their term of office is now 10 years. The duration of the term of office of judges of the Constitutional Court has been established as 15 years.

Reporting committee: Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)

Reference to committee: Resolution 1115 (1997) of 27 January 1997, Opinion No. 222 (2000) and Resolution 1305 (2002)

Draft resolution unanimously adopted by the committee on 7 January 2004

Members of the committee: Mrs Durrieu (Chairperson), Mr Frunda, Mr Frey, Mrs Tevdoradze (Vice-Chairpersons), Mrs Aguiar, Mr Akçam, Mr Akhvlediani, Mr B. Aliyev, Mr André, Mr Arzilli, Mr Atkinson, Mr Baška, Mr Bernik, Mrs Bilgehan, Mr Bindig, Mr van den Brande, Mr Budin, Mrs Burbiene, Mr Cabrnoch, Mr M. Cavuşoğlu, Mr Čekuolis, Mr Christodoulides, Mr Cilevičs, Mr Colombier, Rt. Hon. Davis, Mr Debono Grech, Mrs Delvaux-Stehres, Mr Dobelis, Mr Einarsson, Mr Eörsi, Mrs Feric-Vać, Mr Glesener, Mr Gross, Mr Gusenbauer, Mr Hancock, Mr Hedrich, Mr Hegyi, Mr Holovaty, Mr Jakič, Mr Jaskiernia, Mr Jurgens, Lord Kilclooney, Mr Kirilov, Mrs Konglevoll, Mr Kvakkestad, Mr van der Linden, Mr Lintner, Mr Magnusson, Mr Martínez Casañ, Mr Medeiros Ferreira, Mr Melčák, Mr Mollazade, Mr O’Keeffe, Mr Olteanu, Mr Pangalos, Mr Rakhansky, Mrs Ringstad, Mr Rivolta, Mr Rogozin, Mr Rustamyan, Mr Sasi, Mrs Severinsen, Mrs Shakhtakhtinskaya, Mr Shishlov, Mr Skrabalo, Mr Slutsky, Mr Smorawinski, Mr Soendergaard, Mrs Stoyanova, Mr Surjan, Mr Tepshi, Mr Tkáč, Mrs Wohlwend, Mr Yáñez Barnuevo, Mr Zacchera.

N.B. The names of those members who were present at the meeting are printed in italics.

Head of the secretariat: Mrs Ravaud

Secretaries to the committee: Mr Gruden, Mrs Odrats, Mrs Clamer, Ms Mathey

¹ See in Appendix 1.

² See paragraphs 22 to 27, Doc. 9545 rev dated 18 September 2002.

³ AS/Mon (2003) 26, 5 septembre 2003

⁴ Doc. 9927

⁵ See Doc. 9927.

⁶ Joint Final Assessment of the Election Code of the Republic of Azerbaijan, CDL-AD(2003), Strasbourg, 1 September 2003.

⁷ Joint Final Assessment of the Election Code of the Republic of Azerbaijan, CDL-AD (2003), Strasbourg, 1 September 2003.

⁸ Doc. As/Bur/AHAZ (2003)1

⁹ Doc. As/Bur/AHAZ (2003)1.

¹¹ OSCE/ODIHR Election Observation Mission Report, Presidential Election in the Republic of Azerbaijan, Warsaw, 12 November 2003.

¹² Paragraph iii.a of Opinion No. 222 (2000)

¹³ Paragraph iii.a of Opinion No. 222 (2000).

¹⁴ Whereas the result of the 1998 presidential election gave 76.11% of the votes to Heydar Aliyev, nearly the same score.

¹⁵ Whereas the result of the 1998 presidential elections gave 76.11% of the votes to Heydar Aliyev, nearly the same score.

¹⁶ Art. 220.1 of the criminal code: “attending and organising massive disturbances”.

¹⁷ Art. 315.2 of the criminal code: “resisting government officials” punishable by 4-12 years imprisonment.

¹⁸ Art.220.1 of the criminal code: “ attending and organising massive disturbances”

¹⁹ Art. 315.2 of the criminal code: “resisting government officials” punishable by 4-12 years imprisonment.

²⁰ Press conference of 6 November 2003, Ambassador P. Burkhard, head of the OSCE office in Baku.

²¹ Press conference of 6 November 2003, Ambassador P. Burkhard, head of the OSCE office in Baku.

²² The text of the article 179.1 says: “early Presidential elections shall be conducted, if the term of the President finishes before the period provided for by the Constitution in the circumstances considered by art.104 of the Constitution. Shall this case take place after determination of the next regular

²³ Law of the Republic of Azerbaijan on the Ombudsman, adopted by the Milli Mejlis in July 2001.

²⁴ Law of the Republic of Azerbaijan on the Ombudsman, adopted by the Milli Mejlis in July 2001.

²⁵ In December 2003 the OSCE in Baku has submitted two lists of 101 names of such dismissed people to the Presidential administration.

²⁶ In December 2003 the OSCE in Baku has submitted two lists of 101 names of such dismissed people to the Presidential administration.

²⁷ OSCE/ODIHR Election Observation Mission Report, Presidential Election in the Republic of Azerbaijan, Warsaw, 12 November 2003

²⁸ OSCE/ODIHR Election Observation Mission Report, Presidential Election in the Republic of Azerbaijan, Warsaw, 12 November 2003.

²⁹ See the list in Appendix 3.

³⁰ See the list in Appendix 3.

³¹ Assembly debate on 28 June 2000 (21st Sitting) (see Doc. 8748, report of the Political Affairs Committee, rapporteur: Mr Baumel, and Doc. 8757, opinion of the Committee on Legal Affairs and Human Rights, rapporteur: Mr Clerfayt).
Text adopted by the Assembly on 28 June 2000 (21st Sitting).

³² . Assembly debate on 26 September 2002 (31st Sitting) (see Doc. 9545, report of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe, rapporteurs: MM. Gross and Martínez Casañ).

Text adopted by the Assembly on 26 September 2002 (31st Sitting).