Doc. 9545 revised

18 September 2002

Honouring of obligations and commitments by 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 co-rapporteurs welcome the fact that most of the formal commitments undertaken by Azerbaijan upon accession to the Council of Europe have been duly honoured in particular with regard to ratification of important conventions and legislative reforms. In particular they are satisfied with the creation of the Ombudsman institution and the improved possibilities of access to the Constitutional Court. The co-rapporteurs welcome the ongoing co-operation with the Council of Europe with regard to reform of the laws on the Constitutional Court, advocates and advocacy, media, civil and criminal procedure codes and strongly encourage Azerbaijan to continue this collaboration in order to bring the Azeri legislation into full compliance with the standards of the Council of Europe.

However, the co-rapporteurs regret the slowness in the expected progress to improve the situation of human rights and fundamental freedoms in Azerbaijan and call on the authorities to take speedily the necessary steps to promote the development of a truly pluralist and democratic society. In particular changes are expected – as quickly as possible – to improve the legal framework and the implementation of the freedom of expression, association and peaceful meeting as well as strengthening the separation of powers in Azerbaijan. In this perspective, the co-rapporteurs insist that the ongoing process of reforming the electoral code and media legislation should not contradict the commitment of Azerbaijan in promoting civil and political rights of its citizens.

Although efforts have been made to liberate persons regarded as political prisoners, the co-rapporteurs urge the Azeri authorities to take the necessary measures to meet their undertaking with regard to political prisoners and to establish a fair justice, which will not result in new imprisonments based on political motives.

I.        Draft resolution

1. The Assembly welcomes the efforts Azerbaijan has made since its accession on January 2001 toward 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 people in the country and honour their commitments.

2. With regard to signature and ratification of conventions;

i. The Assembly is pleased to note that Azerbaijan signed and ratified 31 conventions, including most of those included in their formal commitments.

ii. Nevertheless, some important conventions remain to be signed and ratified including the European Outline Convention on Transfrontier Co-operation and additional protocols, the Criminal Law Convention on Corruption and the Civil Law Convention on Corruption.

iii. Some already signed conventions need to be further ratified including 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.

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 Ombudsman, the Law on the Bar and the Code of Criminal Procedure. The Assembly recommends continuing this co-operation with the Council of Europe and calls Azerbaijan to improve in particular the law on Advocates and Advocacy, the Criminal Procedure Code and the Code of Civil Procedure 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 hopes that the recommendations made by the experts of the Council of Europe will be duly taken into consideration in the laws to be adopted. It also particularly calls for a continuation of the co-operation in appraising and improving the Media legislation and urges Azerbaijan to draft a law on National Minorities.

iii. The Assembly recalls that the honouring of commitments not only resides in the formal reform of the legal framework but also in the respect and the proper implementation of the 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 in Azerbaijan.

iv. The Assembly is informed that Azerbaijan has only partially honoured its commitment on ratifying conventions related to the fight against corruption. It recalls that the fight against corruption implies a commitment in the interest of an equitable evolution of society and a fair distribution of resources and encourages the Azeri authorities to take whatever steps are necessary to fight efficiently the ramping corruption that still exists at all levels of the Azeri society. The Assembly strongly encourages Azerbaijan to address their commitment regarding the adoption of an anti-corruption law and submit its draft to the Council of Europe for appraisal as well as to draw up speedily a national programme for fighting corruption.

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

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

4. With regard to separation of power, rule of law and democratic institutions;

i. The Assembly notes that the executive still exercises in Azerbaijan 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 the 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 the 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 intends to help this process by undertaking a more detailed evaluation of the current powers of Parliament and their exercise.

iii. The Assembly was informed that the 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 rapidly took place at very short notice. Not only the 39 amendments to the Constitution should have been discussed and approved much earlier by the Parliament, but the politically sensitive issue of regrouping the 39 changes into 8 questions should have been decided by the Parliament rather than by the administration. The Assembly recommends reinforcing the legislative role of the Parliament, in particular in the elaboration of laws and in the debate on major political issues.

iv. The Assembly welcomes the efforts made that enabled the first Ombudsperson to be appointed 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 essential role in facilitating the effective implementation of the ECHR in Azerbaijan.

v. The Assembly congratulates the Azeri 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 the 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 reforming process 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, accuracy of voters’ lists, 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 from the Azeri authorities that the law in question should guarantee equal access of all political parties to the electoral process and that it should be implemented at least 6 months before the presidential elections.

ii. The Assembly is disappointed that no consultation was initiated with the Council of Europe on the text and the organisation of the 24 August 2002 Referendum. Nevertheless the Assembly welcomes the fact that the Azeri authorities decided to present the constitutional changes in the form of 8 questions, which enabled the voters to vote separately on the different issues submitted to referendum. As during most of the previous elections, numerous frauds marred the election process and could cast serious doubts as to 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 is welcomed 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 offered the Azeri nation an opportunity for real confidence in the electoral process and helped in developing a democratic culture in Azerbaijan 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 that the scale of the protest movement in Azerbaijan shows 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 in associating 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 Azeri authorities to improve the human rights situation. Nevertheless, it calls for effective arrangements to protect freedom of expression, of association and of peaceful assembly, necessary for a sound development of democratic society in Azerbaijan. It calls 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 almost not 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 cooperation 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 right violations and urges the Azeri 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 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 is 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 lately. The Assembly is very concerned about the government’s response to public protests related to social issues. It strongly calls for the police forces to react in an adequate and proportionate manner when civilians and citizens are involved in police intervention and appeal to the authorities to address and remedy the causes of the 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 Azeri authorities to enact a law on public and private broadcasting and a decree on the creation of a national council on radio-TV broadcasting that are fully in line with the Council of Europe standards.

ii. The Assembly is very concerned with cases of interference with freedom of expression, pressure brought 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. Lastly, the Assembly is very worried that the 24 August 2002 presidential decree on disclosure of state secrets in the mass media, setting up new rules for consulting with a national commission before releasing information, might not only restrict journalists in publishing information on state entities, but also open the door to a new form of censorship. The Assembly calls upon the Azeri authorities to speedily engage in a dialogue with the Council of Europe in order to ensure that this new decree does not contradict the commitment of Azerbaijan in promoting freedom of the media.

8. With regard to political prisoners;

i. The Assembly welcomes the several pardon decrees issued by the President since accession of the country to the Council of Europe. It takes note that among the pardoned prisoners a significant number were considered as political prisoners by the experts of the Council of Europe.

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 ECHR including that they be accessible to journalists.

iii. The Assembly is profoundly disturbed by the fact that 7 out of the 17 pilot cases of persons found to be political prisoners by the experts of the Council of Europe are still detained and were neither pardoned nor granted retrial, namely: AMIRASLANOV Elchin Samed Oglu (case N°5), EFENDIYEV Natig (case N°7) who is apparently suffering of serious illness, KAZYMOV Arif Nazir Oglu (case N°15), ABDULLAYEV Galib Jamal Oglu (case N°16), GUSEYNOV Suret Davud Oglu (case N°17), SAFIKHANOV Ilgar (case N°18), GUSEYNOV Guseynbala (case N°25).

iv. The Assembly urges the Azeri authorities to speedily take the necessary steps to ensure the fulfilment of their obligations and recalls that particularly in the case of ill detainees, liberation for humanitarian reasons should be envisaged.

v. The Assembly reiterates that for a Council of Europe member state the holding of political prisoners is totally unacceptable. It insists that the Azeri authorities show real determination to eradicate a practice which is a blot on Azeri society, and avoid new imprisonments on the sole ground of political activities.

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

vii. Finally, the Assembly stresses the importance of continued co-operation with the experts of the Council of Europe. It particularly requests the Azeri authorities to provide speedily the Council of Europe 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 conflict in Nagorno-Karabakh;

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

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

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 the closing of the monitoring procedure can only be envisaged upon fulfilment of all major commitments, which includes, in the case of the two countries involved, an agreement on the peaceful settlement of the Nagorno-Karabakh question including the occupied territories, which has been pending for more than 8 years now.

10. In the light of the above considerations, the Assembly concludes that some formal progress has been made since 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 Azeri delegation.

11. The Assembly urges the Azeri authorities -in particular- to speedily improve the media legislation, the electoral code and to define and implement, together with the Council of Europe and the Congress of Local and Regional Authorities of Europe, a decentralisation strategy, aiming at increasing local governments’ competences, responsibilities and resources.

II.       Explanatory memorandum by the co-rapporteurs

Table of contents

INTRODUCTION

I.       COUNCIL OF EUROPE CONVENTIONS

II.       LEGAL REFORMS

      A.       Pluralist democracy

      1.       Elections

      2.       Local self-government

      3.       Functioning of democratic institutions

      B.       Rule of law

      1.       Code of Criminal Procedure

      2.       Ombudsman Act

      3.       Combating corruption

      4.       Judicial system

III.       HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

      A.       Prison system and detention conditions

      B.       Political prisoners

      C.       Media freedom

      D.       Freedom of religion and alternative service

      E.       Minority rights

F. Freedom of association

IV.       SETTLEMENT OF THE CONFLICT IN NAGORNO-KARABAKH

CONCLUSIONS

Appendices

I.       Opinion No. 222 (2000) of the Parliamentary Assembly on Azerbaijan’s application for membership of the Council of Europe

II.       Programmes of the co-rapporteurs' visits to Azerbaijan (29 October to 3 November 2001 and 15-22 July 2002)

III.       Letter of 7 November 2001 from the Chair of the Monitoring Committee to the President of the Parliamentary Assembly

IV.       Council of Europe conventions signed and ratified by Azerbaijan

Introduction

1.       Azerbaijan joined the Council of Europe on 25 January 2001. The monitoring procedure started immediately after, 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 and the rule of law, 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).

3.       This report describes Azerbaijan's progress in honouring its obligations and commitments.

4.       The first visit of the co-rapporteurs was from 29 October to 3 November 2001¹ and the second visit took place from 15 to 22 of July 2002. The co-rapporteurs are grateful to the Azeri authorities for their co-operation, and to the Azeri delegation to the Parliamentary Assembly for its hospitality and the organisation of the visits. 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.

5.       The first visit coincided with the tenth anniversary of the country's independence on 18 October 1991. During this relatively short period the country has experienced considerable political tensions, with two presidents in succession (Mr Mutalibov in 1992 and Mr Elchibey in 1993) being elected and then dismissed, against the background of the armed conflict with Armenia over Nagorno-Karabakh, which started in 1988.²

6.       Azerbaijan is situated in Transcaucasia, bordering the Caspian Sea and having frontiers with the Russian Federation, Georgia, Armenia, Turkey and Iran. It covers approximately 86 600 km², and currently has about 8 million inhabitants, 53% of whom live in towns. The majority religion - 80% of the population - is Islam (70% Shiite, 30% Sunni).

7.       The country's main sources of wealth are oil, natural gas and mineral deposits, as well as considerable agricultural potential based on a wide variety of climatic zones.

8.       Azerbaijan remains an economy in transition in which the state still plays a predominant role. In 2000, inflation was 1.8% and GNP grew by 11%. In the same year, the budget deficit was some 1.3% of GNP. According to the State Statistical Committee, the GDP growth made 9.0% in the first months of 2002 while the deflator was 99.4%. The GDP per capita was AZM 1,867,700 ($378.3), being 8.2% more than it was in the same period of 2001. The country has initiated economic reforms with the support of the International Monetary Fund (IMF), the International bank for Reconstruction and Development (IBRD) and the European bank for Reconstruction and Development (EBRD). Although the economic situation has improved in recent years, particularly as a result of enormous foreign investment, nearly 60% of the population live below the poverty level^3.

9.       The armed conflict with Armenia has profoundly upset the Azeri population and it remains a major factor of high general concern. It has led to more than 20 000 deaths and the flight from the occupied regions of more than 800 000 Azeri refugees, only 40% of whom appear to have integrated into their new environment⁴. An important part of this population is still living in temporary refugees camps, dug-outs and prefabricated houses. Moreover, the country's economic, social and political development is hindered by the fact that 20% of Azeri territory, including regions beyond the limits of Nagorno-Karabakh (in total 900 towns and villages), has been occupied by Armenia for nearly ten years, without real progress in the negotiations to settle the conflict⁵.

10.       Azerbaijan's geo-strategic position and the industrial challenge it represents requires it to take account of the interests of all the powers exerting or attempting to exert influence in the region. Its close proximity to its giant Russian neighbour, cultivating Turkey and Iran, its neighbours and natural allies, and the need to protect itself from the threat of Islamic fundamentalism and to secure a settlement of the Nagorno-Karabakh conflict while preserving its territory, independence and promoting democratic transition are all factors that Azerbaijan has to balance if it is to maintain its political stability.

I.       COUNCIL OF EUROPE CONVENTIONS

11.       Even before membership, Azerbaijan complied with two of its commitments under Opinion No. 222 (2000) (para. 14.i.d and g) regarding conventions: "to sign and ratify, within one year of its accession, the Council of Europe’s Framework Convention for the Protection of Minorities" (which entered into force on 1 October 2000) and "to sign and ratify, within two years of its accession, the ... [Convention] on the Transfer of Sentenced Persons" (which entered into force on 1 May 2001).

12.       By September 2002, Azerbaijan has signed and ratified 31 Council of Europe conventions, including the above two and four additional Council of Europe Instruments to which it committed itself on admission to the Council of Europe, under Opinion No. 222 (2000) namely: “the general Agreement on Privileges and Immunity (…) and additional protocol; the European Convention on Human Rights and protocols 1, 4, 6 and 7; the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishments and its protocol; the European Charter of Local Self-Governments. A full list of conventions signed and ratified by Azerbaijan appears in Appendix V.

13.       The co-rapporteurs welcome the signature and ratification of these important conventions and encourage the Azeri authorities to ensure their implementation in the daily reality of the Azeri people as well as their broad dissemination. Several conventions signed still 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, the Convention on Laundering and the Convention on Suppression of Terrorism. Moreover, the co-rapporteurs recall that Azerbaijan has not yet signed and ratified the European Outline Convention on Transfrontier Co-operation and its additional protocols.

II.       LEGAL REFORMS

A.       Pluralist democracy

      1.       Elections

14.       When it joined the Council of Europe, Azerbaijan undertook:

"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" (Opinion No. 222 (2000), paragraph p 14, sub-paragraph iii.a).

15. After re-establishing its independence, Azerbaijan held its first parliamentary elections on 12 November 1995, together with a referendum on the new Constitution. On 11 October 1998, presidential elections resulted in the re-election of President Heydar Aliyev for a second term of office. On both occasions, the elections were observed by an ad hoc committee of the Bureau of the Assembly^6.

16. The ad hoc committee observing the 1995 parliamentary elections concluded that they had taken place peacefully, but a number of irregularities and clear cases of fraud were recorded. The elections yielded a new parliament (Milli Mejlis) comprising 125 members elected by direct universal suffrage, based on a mixed system (100 seats elected under a majority system and 25 on a proportional basis). The new Constitution was approved the same day in a referendum by 91.9% of the votes cast.

17. The second ad hoc committee considered the 1998 presidential election to be a step towards democratising the country, even though it had been marred by serious frauds and shortcomings.

18. The very first local government elections ever to take place in Azerbaijan were held on 12 December 1999 and again on 26 March 2000, following the cancellation of some of the results on account of irregularities in one of the districts of Baku and in 76 municipalities. They were observed by the Congress of Local and Regional Authorities of Europe (CLRAE), in whose view the elections were a first step towards local democracy⁷.

19. The most recent parliamentary elections were held on 5 November 2000. On 7 January 2001, new elections were organised in 11 constituencies following the cancellation of the results because of serious irregularities. The two elections were observed by an ad hoc committee of the Bureau. Although the ad hoc committee welcomed the authorities' rapid reaction to the irregularities in the 5 November vote and the decision to cancel the results in 11 constituencies, it also concluded that the fresh elections on 7 January had not been fully consistent with international standards, though in themselves they represented significant progress.

20. The New Azerbaijan Party, led by Heydar Aliyev, retained its large majority with 76 seats, the Azerbaijan Popular Front won six seats, the Civil Solidarity Party three and the Musavat Party and the National Independence Party two each out of which both parties do not recognise one of their former members elected.⁸

21. The next election will be the presidential one scheduled for 2003. It is essential that the authorities take the necessary steps to ensure that all the conditions are met for free and fair elections congruent with democratic standards. The co-rapporteurs suggest that the technical and procedural inaccuracies that were observed during recent elections be duly analysed and taken into consideration in the revision of the electoral code in order to avoid repetition of such irregularities in the forthcoming presidential elections. The authorities should be aware of the crucial importance of these elections for the future of the country. It is expected that these elections, 12 years after independence, will be respect all international standards of a free and fair election.

22.       On 22 June 2002 the President of the Republic issued a Decree “on conducting a referendum on amending the Constitution of the Azerbaijan Republic”. This proposal was considered consistent with the Constitution by the Constitutional Court and the date set for 24 August 2002. This referendum has amended some 24 articles –which include 39 changes to the Constitution- and introduced important changes such as the adoption of a purely majoritarian election system, the election of the President by absolute majority (instead of qualified majority, two thirds of the votes) the modification in fixing dates for the parliamentary sessions, 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, the direct access to the Constitutional Court for individuals, the Ombudsman and ordinary courts, among others. The referendum also introduced the necessary provisions related to the creation of the Ombudsman institution, the Court of appeal, the Public Prosecutor, municipalities and alternative military service.

23. It is unfortunate that the Azeri authorities did not initiate an official consultation with the Venice Commission on the text and the organisation of the referendum. Furthermore it is regrettable that the Azeri authorities did not take advantage of this referendum to introduce some constitutional changes suggested by the Venice Commission, in particular the possibility for an effective parliamentary control over the activities of the executive through introduction of provisions in the Constitution for a vote of no-confidence in the cabinet of Ministers, which should result in the dismissal of the latter. It is also to be noted that the upholding of the right of legislative initiative for the Supreme Court risks endangering its independence, which thus could be drawn into the political process and therefore could damage its position. Similarly the upholding of the constitutional provisions concerning the right of initiative of the Constitutional Court in the procedure for the removal of the President of Azerbaijan according to art 107 of the Constitution might damage its independence. Finally, extension of the deadline set for the official publication of election results from 7 to 14 days following polling day remains insufficient. The Constitution should rather have provided “for the necessary time for all election disputes to be settled” before such announcement could be made. It is expected that this latest remark is taken into consideration in the final version of the Electoral Code.

24.       Moreover the co-rapporteurs expressed their concerns that the two-month period left before the referendum took place was inadequate and insufficient for a proper awareness to be raised among voters and political forces of the country as well as to disseminate relevant information on these important constitutional changes. Nevertheless, the co-rapporteurs welcome the fact that broadcasted round tables between Government representatives and representatives from opposition parties were organised in collaboration with the OSCE office in Baku to debate the constitutional amendments on the eve of the referendum.

25.       On 25 July the leaders of 27 political parties from the opposition signed a joint statement calling for a boycott of the referendum. The co-rapporteurs wish to restate that the boycotting action is not in their opinion a suitable reaction in particular in the case of this referendum when the choice was given to the electorate to vote for 8 different questions. They urge the authorities to initiate a proper political dialogue with all political forces of the country as a factor of stability and national cohesion.

26. The referendum was passed with an overwhelming majority of 96% of the votes expressed in favor of the amendments and a national turn out over 88% of the registered voters The Parliamentary Assembly of the Council of Europe did not observe the Referendum due to the short notice. Only Mr. Gross, one of the co-rapporteurs, was present in Azerbaijan during the referendum. A broad range of frauds and irregularities were reported including undue interference of the executive authorities in the election process. Significant problems arose with regard to accreditation for observation of representatives of political parties in polling stations. First of all, the CEC rule requesting every observer to withdraw his own accreditation in Baku hampered numerous observers from regional branches of political parties to actively take part in the observation of the referendum. As during previous elections allegations of pressures to go voting and influence on voters intentions were reported as well as ballot stuffing and undue presence of the police at the polling stations. It was also reported that about 40 representatives of the opposition party APF and members of the election commissions were arrested when they refused to sign allegedly forged protocols. Once again problems were reported with inaccuracies of the voter’s lists. These frauds and irregularities cast a serious shadow on the scale of the impressing results of the referendum, as shown by the cancellation of results for serious frauds decided by the Electoral authorities in about 230 constituencies.

27. Four major political parties from the opposition who conducted a monitoring of the polls co-signed a declaration on the results of this referendum being illegitimate and fraudulent and intend to challenge these results in court. The co-rapporteurs reiterate that a situation where elections and polls are contested by part of the population contradicts the basic rules of a democracy and urgently call the Azeri authorities to take the necessary steps to establish confidence in the electoral process.

28. Azerbaijan has undertaken to revise its electoral law in consultation with the Council of Europe. As part of the co-operation programme between the Venice Commission and Azerbaijan, the Azeri authorities submitted the draft revised electoral legislation to the Commission in and their pending solutions - that have so far marred systematically the election process in Azerbaijan.

29. Reference should be made to a previous opinion submitted by the Venice Commission already in 2001: "A major element in this respect is a reinforcement of the position of the Central Electoral Commission strengthening its neutrality and its capacity to deal effectively with electoral complaints both from a legal and material point of view. The electoral commissions should be enabled and obliged to deal with complaints directly rather than to refer them to the prosecutor or ordinary courts. Additional safeguards against electoral fraud need to be introduced⁹". The co-rapporteurs formulate their strong hopes that these recommendations will be scrupulously taken into consideration in the new law.

30. The co-rapporteurs recommend that the Azeri authorities communicate the draft law to all political factions and actors of the civil society so that all could be invited to formulate proposals and comments on this text to be taken into consideration for the final version submitted to Parliament. By doing so, the Azeri Authorities would take an important step towards transparency of the drafting process, which is an essential element to ensure public confidence and inclusiveness in the reform process of the Election Code.

31. A joint opinion of experts of the Venice Commission and the OSCE's Office for Democratic Institutions and Human Rights (OSCE-ODIHR) will be forwarded to the authorities before the first reading, which is scheduled for the beginning of October. In this context, the Venice Commission and the OSCE-ODIHR have offered their joint assistance in view of improving the electoral legislation and enacting a new electoral code consistent with international standards and have invited all those involved in the elections to a round table. The Azeri authorities have accepted this proposal. Such a round table is to be organised during the second half of October, when the draft legislation is finalised. The co-rapporteurs wish to remind the authorities that the law in question should guarantee equal access of all political parties to the electoral process.

32. The co-rapporteurs see in the forthcoming Presidential Election - due to take place in the fall of 2003-, an undoubted chance for the Azeri authorities to organise - on the basis of the newly reformed electoral code- elections that would fully respect international standards and achieve a broad political consensus fostering further stability in the country. The ability to organise and achieve free and fair elections will be of historical importance for the future of the nation, its integration and integrity.

      2.       Local self-government

33. In accordance with Opinion No. 222 (2000), paragraph 14, sub-paragraphs i. f and g and iii.b, Azerbaijan has undertaken:

“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”;

34.       Azerbaijan has not yet signed and ratified the European Outline Convention on Transfrontier Co-operation and its additional protocols. The co-rapporteurs call the Azeri authorities to speedily take the necessary measures to honour this commitment.

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

“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 of Local and Regional Authorities of Europe (CLRAE)".

35.       The co-rapporteurs welcome the fact that Azerbaijan has signed and ratified in a timely manner the European Charter of Local Self-Government. According to this charter, municipalities are to be considered as public authorities. It is not clear yet whether the Azeri domestic legislation has taken this into account. In this context, further steps are urgently required to - improve and - promote the enlargement of the competences and of the full and exclusive responsibilities of the municipalities as well as their financial resources. Similarly additional guarantees of the local authorities’ right to associate should be established.

36.       In the light of the above the co-rapporteurs urge the Azeri authorities to speedily proceed with the adaptation of their legislation to the principles of the Charter as well as to define and implement a genuine decentralisation strategy taking into consideration all recommendations of the Council of Europe DGI and the CLRAE

37.       The co-rapporteurs join the Council of Europe DGI and the CLRAE’s recommendations¹⁰ addressed to the central authorities to encourage and facilitate the development of a National Association of Local Authorities in Azerbaijan.¹¹

38.       The co-rapporteurs visited in July 2002 several regions of Azerbaijan (Nakhitchevan, Guba, Khatchmaz, Lenkoran and Massaly regions). During these visits the co-rapporteurs were able to discuss a number of issues related to the functioning of local democracy and self-government in Azerbaijan. The overall assessment of the co-rapporteurs is that serious efforts are needed to establish a real separation of power also in the regions. In particular it seems that the local institutions of the autonomous Republic of Nakhitchevan are significantly dependant on central authorities, entitled -at the highest level- to play a decisive role in the political and administrative life of this enclave, including in appointing judges, the President of the Supreme Court and the local Prime Minister. The only fact that the Head of the executive power in Nakhitchevan is according to the Constitution also the President of the local Parliament Ali Majlis raises problems in respect of the separation of powers. Furthermore, the co-rapporteurs and the Venice Commission share the same concerns regarding the independence of the judiciary and the sovereignty of the legislature ¹².

      3.       Functioning of democratic institutions

39.       When it joined the Council of Europe, Azerbaijan undertook:

"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" (Opinion No. 222, (2000), paragraph 14, sub-paragraph iii.c).

40.       The 1995 Constitution introduced a strong presidential system, and a unitary, secular and democratic state based on the rule of law and the separation of powers (Articles 1 and 7 of the Constitution).

41.       Executive power is vested in the President. Article 109 of the Constitution confers broad powers on the President: he appoints members of the executive at both central and local levels and can overrule any decision taken by the latter. Paragraph 32 of this article empowers him to settle by decree any other matter that the Constitution does not make the responsibility of the Milli Mejlis of the Republic of Azerbaijan. It is to be added that some of the amendments introduced in the Constitution through referendum on 24 August 2002 increased even more the power of the President.

42.       The President is assisted by a ministerial cabinet exclusively responsible to him, and he also determines the Cabinet's activities. He appoints the Prime Minister, subject to approval of the Milli Mejlis, but if the latter refuses its support three times in a row the President may appoint the Prime Minister without parliamentary approval.

43.       The President also has the right to call referendums and parliamentary elections, which strengthens his position in any conflict with Parliament.

44.       Under Article 96, paragraph 1 of the Constitution, the Milli Mejlis, the President of the Republic, the Parliament of the Nakhichevan Autonomous Republic as well as the Public Prosecutor (under the newly amended Constitution) and the Supreme Court, can initiate legislation. The fact that this competence is included in the mandate of the Supreme Court raises concern with regard to its impartiality.

45.       The Parliament is slowly becoming a forum for political debate and an instrument for enacting new laws and steering through democratic reforms. However, much still needs to be done to establish its independence from and its strength vis-à-vis the executive. The co-rapporteurs did not hide their disappointment that although the right to call a referendum is in accordance with Art.109.18 constitutionally within the competence of the President of the Republic, the Parliament was consulted on the content and on the adequacy of holding a referendum only after the presidential decree to hold a referendum was issued.

46.       The co-rapporteurs were surprised to learn that in the Milli Mejlis, minority political groups must have at least 20% of the voting strength to form factions. This astonishingly high percentage is hardly conducive to genuine democratic debate in the national assembly, because it excludes minority opinions. The co-rapporteurs raised this matter with the President of Parliament and informed him that in parliaments of other member countries of the Council of Europe this number varies from 3 to 5 %.

47.       The co-rapporteurs stress that the Azeri people must get used to the idea that Parliament is not just one of a number of public institutions. There has to be public awareness that Parliament is the forum for discussing the problems of Azeri society. Moreover it seems important to stress that the Parliamentary Delegation to the Council of Europe is a major element of the inter-institutional dialogue and the co-rapporteurs underline the need to strengthen ongoing co-operation and to promote a conducive climate to better exchanges with the Parliamentary Assembly of the Council of Europe.

48       Secondly, although the Constitution of 1995 provides for the separation of powers, those with whom the co-rapporteurs spoke frequently stressed the inadequacy of these constitutional provisions, insofar as the principle is not applied in practice. Parliament exercises no oversight of the government's activities, which means that the public at large is similarly excluded.

49.       Parliament must be able to exercise its right to question members of the government. The members of the Azeri Assembly delegation have firmly supported this idea in the interests of transparency and parliamentary effectiveness. However, the right to introduce censure motions would require a reform of the Constitution, which in turn necessitates a referendum, and the co-rapporteurs regret that this provision was not introduced in the Constitution through the 24 August 2002 referendum.

50.       Presidential regimes can only function democratically if the independence of the legislative branch is fully safeguarded. The co-rapporteurs have been struck by the fact that most of the information they received on their fact-finding visits concerning the state of progress of democratic reforms and the honouring of commitments entered into upon accession to the Council of Europe was supplied by the Presidential Administration, which seems to be also the place where major legal texts are drafted and compiled.

B.       The rule of law

51.       Azeri experts from the Presidential Administration and Ministry of Justice and the Council of Europe have now begun a study to check on Azeri domestic law’s compatibility with the European Convention on Human Rights (ECHR). The study is already well behind schedule and the Azeri authorities are urged to speed up their efforts and co-operate actively in the exercise.

      1.       Code of Criminal Procedure

52.       On joining the Council of Europe Azerbaijan undertook:

“to adopt, within one year of its accession, the Code of Criminal Procedure, taking account of the observations by the Council of Europe experts” (Opinion 222, paragraph 14.iii.d).

53. The Code of Criminal Procedure was adopted on 1 July 2000 and came into force on 1 September 2000. A Council of Europe expert appraisal had been requested and was taken into account to some extent in the drafting of the code. Some amendments to the Code of Criminal Procedure were made at the Milli Mejlis’s spring 2001 session.

54. The Council of Europe experts further provided an expert appraisal on the Code of Criminal Procedure as adopted. This was communicated to the Azeri Authorities in February 2002. The co-rapporteurs are of the opinion that to fulfill their commitments, the Azeri Authorities should review their criminal procedure in the light of the new recommendations provided by the experts of the Council of Europe.

2.       The Ombudsman Act

55. On joining the Council of Europe Azerbaijan undertook:

“to adopt, within one year of its accession, the law on the Ombudsman” (Opinion 222, paragraph 14.iii.e).

56. The legislation on the Ombudsman for the Republic of Azerbaijan was adopted by the Milli Mejlis at its second reading on 28 December 2001. The Venice Commission’s recommendations were all incorporated in the legislation, which is broadly in line with European standards. It is welcomed that the provisions for the institution of Ombudsman were incorporated in the Constitution on 24 August 2002¹³.

57. The Milli Mejlis appointed the first Ombudsperson of the country for a 7 year-period out of a list of 3 candidates proposed by the President. The first Ombudsperson took office on the day of her appointment on 2 July 2002 and should be operational late this fall. The co-rapporteurs met the newly appointed Ombudsperson in July 2002 and were impressed by her commitment to her new function. She presented them her preliminary working plans including the creation of an analytical and research unit and the establishment of local representations in the regions of Azerbaijan. The co-rapporteurs welcome the readiness of the Ombudsperson to collaborate closely with the Council of Europe and other international institutions. They convey their best wishes for the newly established institution in Azerbaijan and underline the importance of the independence of the Ombudsperson as well as its essential role in facilitating the effective implementation of the ECHR in Azerbaijan.

58. The Azeri authorities are to be congratulated on this reform, which is a crucial part of the democratisation of the country. It is particularly welcomed that the foreseen amendments of the Constitution specify that the Ombudsperson is able to refer matters to the Constitutional Court.

59. Finally, the co-rapporteurs wish to underline that any Ombudsperson can only play his role fully if the citizens have confidence in his real independence and in his power to intervene directly with the Administration in their interest.

      3.       Combating corruption

60.       Under Opinion 222, paragraph 14.i.g and j and iii.f Azerbaijan undertook:

“to sign and ratify, within two years of its accession the … Council of Europe conventions on extradition, on mutual assistance in criminal matters, on laundering, location, 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; 

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

“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”.

61.       The co-rapporteurs were informed that the conventions on the transfer of sentenced persons together with the convention on extradition were signed and ratified respectively in December 2000 and May 2002. The conventions on mutual assistance in criminal matters, on laundering, location, seizure and on confiscation of the proceeds from crime were signed in November 2001 and are still awaiting ratification. Similarly, in order to fulfill the abovementioned commitments it is important not only that all the conventions are ratified before January 2003, but also that their fundamental principles are applied.

62.       At the time of writing Azerbaijan has not yet signed and ratified the Criminal Law Convention on Corruption and the Civil Law Convention on Corruption. The co-rapporteurs recall that this commitment is due to be implemented before January 2003.

63.       Following a presidential decree issued in June 2000, two Cabinet working parties were establishes to draw up a national programme of action to combat corruption as well as an anti-corruption law. The draft Anti-corruption law has been submitted to the Council of Europe for expert appraisal and discussed at an expert meeting organised in October 2001. It was presented to the Parliament for the first reading during the December session 2001 and is still to be adopted and implemented. The co-rapporteurs hope that the co-operation initiated recently in this field, will be continued so that the draft law is adopted in conformity with the Council of Europe expert’s recommendations and the National Programme can be compiled as quickly as possible.

64.       The co-rapporteurs recall that the fight against corruption implies a commitment in the interest of an equitable evolution of society and a fair distribution of resources. The co-rapporteurs remind the Azeri authorities that on the internationally recognised lists of most corrupted countries in the world, Azerbaijan is worryingly moving backwards, towards the group of most corrupted countries. They encourage the authorities to take whatever steps are necessary to honour the undertaking given when Azerbaijan was admitted to the Council of Europe and improve the situation in this regard.

      4.       Judicial system

65.       In Opinion 222, paragraph 15.i, ii and iii the Parliamentary Assembly noted that Azerbaijan intended:

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

66.       The law on the Prosecutor’s Office, adopted in 1999, was an important step in reform of the judicial system. It limited the powers, which Soviet-era legislation had vested in the prosecutor. In particular it did away with the Prokuratura’s function of general review (nazdor), which allowed prosecutors to challenge decisions that came within their jurisdiction.

67.       A law on Advocates and Advocacy came into force on 1 January 2000. The law and its additional draft amendments were submitted for expert appraisal and a positive co-operation was initiated with the Council of Europe on this issue. Several meetings (the last one in March 2002) have already been organised to discuss this law. However, various non-governmental interlocutors raised quite a few criticisms of its implementation.

68.       The law -at the time of writing this report- is still not amended and accreditation of lawyers is still pending. The undertaken commitments specify that the law is to be re-examined and amended before January 2004, and the co-rapporteurs hope that the authorities will take necessary steps to ensure that the law complies with European standards and is in line with the new dispositions of the Constitution and the Criminal Code and Code of Criminal Procedure of Azerbaijan.

69.       As in other member countries, this act stipulates that only persons admitted to the Collegium of Advocates are allowed to practise as advocates. The Collegium at present has some 500 members. It makes arrangements for the cases it receives, “distributing” them among its members.

70.       Several non-governmental contacts expressed the view that the Collegium’s new recruitment procedure, introduced by the law of January 2000, is intrinsically easily influenced by government interests. While the requirements for becoming a member of the Collegium and for gaining a lawyer’s license are much the same, an important difference lies in the composition of the committee which interviews applicants for the Collegium. The committee is made up of nine members representing the profession (qualified lawyers, advocates and judges) appointed by the presidium of the Collegium, the Supreme Court and members of the executive.

71. In a country where separation of powers still has to make substantial progress, the committee’s composition cannot but raise doubts as to its neutrality and consequently the Collegium’s independence, even though the Collegium is formally independent of the Ministry of Justice.

72. Under Article 4 of the Advocates and Advocacy Act, only advocates can represent the accused in criminal cases. This monopoly is a remainder from the Soviet era and deprives defendants of the basic right to defend themselves in person or engage legal assistance of their own choosing (Article 6 para.3 ECHR).

73. The case of Mr. Ismailov, whom the co-rapporteurs have met several times and whose case was discussed with representatives of the International League for Human Rights, shows the limitations to the implementation of the new legislation. Mr. Ismailov was a member of the Collegium of Advocates until 1998, when he left to take up a career in the Presidential Administration. He lost his post in the Presidential Administration a year later and since then his requests for readmission to the Collegium have been rejected on the ground that he had been formerly excluded from the Collegium in 1999. When asked, the president of the Collegium said that Mr. Ismailov must wait for the examination to try re-registering.

74. In any case, the new act provides for a review of the 1000 or so applications for membership of the Collegium. This should allow the Collegium to be given fresh blood - recently qualified lawyers who have been trained in the legislation adopted since independence and since introduction of the rule of law. The 500 present members are lawyers with between 20 and 25 years’ experience whose legal knowledge has not necessarily been updated in the light of the new legislation.

75. At the time of writing neither the Examination Committee has been established nor the examination scheduled and advocates are still working under the old Soviet accreditation system. The co-rapporteurs hope that the Azeri Authorities while fulfilling their formal commitment to revise the law on Advocates and Advocacy in accordance with the recommendations of the Council of Europe experts, will address as soon as possible the next steps for the implementation of the law in the spirit of the Council of Europe standards.

“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;

76.       The Constitutional Court was established in 1998. The co-rapporteurs were pleased to see that the Azeri authorities have been co-operating closely with the Venice Commission as regard the changes to the conditions governing access to the Constitutional Court. An opinion of the Venice commission was adopted by the Commission at its 50^th plenary session¹⁴. The co-rapporteurs welcome the fact that following the adoption of the Constitutional changes by referendum on 24 August 2002, the conditions of access to the Constitutional Court were granted to the courts at all levels, the newly created Ombudsman Institution and in specific cases to individuals. These constitutional provisions need nevertheless to be completed and included in the draft Law on Constitutional Court to be presented to Parliament at the next session. Equally, the Venice Commission requested clarifications on the scope of the constitutional basis and on the effects of findings of unconstitutionality of normative acts on individual acts based on the latter. It is to be regretted that the recommendations of the Venice Commission concerning the role and the mandate of the Constitutional Court in considering election complaints has not been addressed by the recent constitutional amendments adopted by referendum on 24 August 2002.

“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”.

77.       Lastly, as regards the appointment of judges, it should be noted that 60% of the judges have been replaced since Azerbaijan’s independence. An examination system for entry to the profession has been set up with assistance from the World Bank and under the supervision of observers from various NGOs and intergovernmental organisations.

78.       In the co-rapporteur’s conversation with the Minister of Justice, it was said that this method of appointing judges was new to the country and the view was expressed that the reform had produced an independent and effective court system. It was also pointed out that judges’ salaries were higher than civil servants’.

79.       However, the 1997 law on the courts and the judiciary which came into force in September 2000 and which created a new three-tier court system was adopted without any request for Council of Europe expert opinion. There has been a certain amount of criticism that it fails to guarantee independence in the appointment of judges. In particular, the role of the Legal Council of Justice created by a presidential decree of 1 December 1998 which should play a role in the appointments of judges as well as in the court system raises concerns since it does not provide sufficient institutional guarantee of independence. It is recommended that the status of the Legal Council of Justice, a consultative body under the president’s authority, be reformed in line with the recommendations of the Council of Europe.

80.       The Council of Europe offered in June 2002 to the Azeri Authorities to create a joint working group in order to examine several relevant issues, which require improvements. It seems particularly important to address the modalities of nomination of the judges and of the renewal of the judge’s mandate, the distribution of the cases among the judges, the status and the role of the Center for Legal Training, as well as the status and competence of the Legal Council of Justice. The co-rapporteurs strongly recommend that these issues be subject to reforms according to European standards and, accordingly, that a re-examination of the modalities of appointment of judges will be envisaged.

81.       In addition, the Council of Europe strongly supports the idea to create an independent Association of Professionals in Judicial Career. Such an independent association could become an important partner for further co-operation programmes and play a crucial role regarding the reinforcement of the independence and the impartiality of the judiciary as recommended in the European Charter on the Statute for Judges.

82.       The co-rapporteurs wish to express their encouragements to the Azeri authorities to further strengthen the collaboration with the Council of Europe with regards to the Code of Civil Procedure. The co-operation has contributed to the drafting of the code which entered into force in 2000. Nevertheless there are some important pending questions regarding the implementation of the code which should be clarified.

III.       HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

A.       Prison system and detention conditions

83.       On joining the Council of Europe, Azerbaijan undertook:

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

84.       Azerbaijan has honoured the above undertaking by signing, on 1 June 2000, an agreement with the Red Cross giving it access to places of detention. The present cooperation agreement was renewed on 18 July 2002 for a further two year-period, which is a positive step from the Azeri side towards ensuring application of the Geneva principles. The co-rapporteurs are fully satisfied with the fact that the Red Cross seems to enjoy a fruitful co-operation with the authorities and is given totally unrestricted access to prisons.

“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), paragraph 14.iv.a and c).

85.       A presidential decree transferred responsibility for prisons from the Ministry of the Interior to the Ministry of Justice was issued in October 1999.

86.       During the two visits the co-rapporteurs visited several prisons – Penal Colony No. 2 and 9, in the inner suburbs of Baku, the women prison in Baku and Gobustan high-security prison – in the company of the Deputy Minister for Prisons, Mr. A. Gasimov.

87.       It was clear that the Azeri authorities are making some efforts to improve prison conditions. To this end, an intense co-operation and indeed successful co-operation with the Council of Europe has been set up for several years, which has certainly contributed to the improvement of the penitentiary system as a whole. In the framework of the implementation of the Action Plan agreed by the steering Group on prison reforms in Azerbaijan, a close co-operation has been established with the prison administrations of Austria, Italy and the United Kingdom.

88.       However, when the co-rapporteurs visited Gobustan and met the three prisoners regarded as political prisoners mentioned in Opinion 222 (2000), Mr Gamidov, Mr Gumbatov and Mr Gaziyev, they complained of a number of infringements of their rights as prisoners, and more particularly of contraventions to the Code of Sentence Enforcement, which has the force of a law but is not being applied to them. They especially referred to the restrictions imposed on their families, who are allowed to bring them only four food parcels a year, not exceeding ten kilos, to the absence of medical examinations and medical care, and to being sometimes deprived of newspapers and books.

89.       As regards the system generally, cases of torture and ill-treatment in prisons, and particularly in remand centers, have been reported by non-governmental organisations, representatives of opposition political parties and journalists who have themselves been subjected to such treatment or whose colleagues have been.

90.       The co-rapporteurs raised the matter with the competent authorities on several occasions. They informed them of disciplinary measures and criminal proceedings taken against prison officers charged with ill treatment or torture.

91.       In addition to the 1999 law on the Prosecutor General’s Office, which, as already pointed out, considerably restricted its powers, a Police Act was passed in 1999. Council of Europe experts collaborated on it and it provides for stricter supervision of the police.

92.       The Interior Minister gave some figures: in the 1998-2000 period 380 policemen were punished for infringements of human rights, 53 were prosecuted and 67 had their cases dismissed. In the first nine months of 2001, the number of human rights violations recorded amounted to 69, involving 83 police officers, seven of whom were prosecuted while 8 had their cases dismissed and 16 were punished (by being demoted).

93.       Nevertheless various incidents of human rights violations and uncontrolled overreaction leading to undue use of weapons by police forces against civilians were reported. The co-rapporteurs are concerned -in general- about the government’s reaction to public protests related to social issues. In particular they deplore the incidents between the police and demonstrators in June 2002, which took place in Nardaran village in the Apsheron suburb of Baku and which lead to the death of a civilian. They call in particular for the police forces to react in an adequate and proportionate manner when citizens are subject to police intervention. The co-rapporteurs call for a fair trial of those who where arrested after the confrontation and ask the authorities to consider the liberation of a disabled person apparently mentally ill, Mr Allahverdiyev Alikram Fazil Oglu born in 1945, and who can not if this disability is confirm be considered responsible.

94. Seminars -in co-operation with the Council of Europe, and the Ministry of the Interior- to educate the police in human rights are regularly held, and the police college training programme now includes a human rights course. Expert assistance from the Council of Europe is also offered to improve the training structure (Police Academy) and to develop of code of police ethics in accordance with Council of Europe standards. This co-operation part of the Joint Programme initiated by the Council of Europe and the European Commission is particularly welcomed by the co-rapporteurs.

95. The co-rapporteurs welcome the fact that the Parliament has 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 fulfilled the commitment undertaken in paragraph 14.i.c of Opinion 222.

B.       Political prisoners

96.       Under Opinion 222 (2000), paragraph 14.iv.b, Azerbaijan undertook:

      “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 Raquim Gaziyev”.97.

97.       At the time of writing, the Azeri authorities have not honoured that undertaking. The question of political prisoners in Azerbaijan is an extremely sensitive one and of crucial importance in relation to Council of Europe standards.

98.       On 31 January 2001, in connection with the monitoring procedure of Armenia and Azerbaijan following admission to the Council of Europe, the Committee of Ministers decided, at the Secretary General’s suggestion, to appoint a group of three independent experts¹⁵ to investigate the cases of presumed political prisoners in those two countries.

99.       The first visit of the co-rapporteurs coincided with the publication of the report of the experts appointed by the Secretary General¹⁶. In reaching their conclusions, the experts had set objective criteria in view to determining what constitutes a political prisoner.

100       In relation to Azerbaijan, Azeri non-governmental organisations gave the experts details of a large number of cases (over 700 names from the Azerbaijan Human Rights Center list were submitted by the Parliamentary Assembly to the Secretary General) in addition to the three persons mentioned in Opinion 222 (2000). The experts investigated a selection of 23 “pilot cases”. Their findings apply mutatis mutandis to all similar cases.

101.       During the first visit to Baku the co-rapporteurs offered Parliamentary Assembly assistance in implementing the experts’ recommendations with a view to releasing or retrying persons whose trials had plainly been unfair and contrary to the ECHR^17.

102.       On the basis of a report submitted by the Committee on Legal Affairs and Human Rights, the Parliamentary Assembly held a debate on this issue and adopted Resolution 1272(2002) on “Political Prisoners in Azerbaijan” in January 2002. The Assembly fully supported the proposed methodology and confirmed the validity of the objective criteria established by the experts to define political prisoners and that they should be applied mutatis mutandis to the remaining cases of the list.

103.       Several Pardon Decrees were issued by the President of the Republic since the accession of Azerbaijan to the Council of Europe resulting in a significant number of liberation and reduction of terms:

- 17 August 2001: 71 persons released (66 out of the list), terms reduced for 23 prisoners.

- 29 December 2001: 87 persons released, (53 out of the list), terms reduced for 29 prisoners.

- 13 March 2002: 81 persons released, (67 out of the list), terms reduced for 8 prisoners.

- 27 May 2002: 73 persons released (43 out of the list), terms reduced for 10 prisoners.

104.       The co-rapporteurs welcome this series of Pardon decrees that resulted in the liberation of a number of political prisoners. They were satisfied in particular with the liberation of three persons whose names were not in the list of 716, but mentioned in Resolution 1272(2002).

105.       Among the 17 “pilot cases”¹⁸ of persons regarded as political prisoners by the independent experts, the co-rapporteurs were pleased to see that 7 prisoners were released following pardon. Nevertheless, 7 persons out of this list are still detained:

- AMIRASLANOV Elchin Samed Oglu (case N°5),

- EFENDIYEV Natig (case N°7) who is apparently suffering of serious illness,

- KAZYMOV Arif Nazir Oglu (case N°15),

- ABDULLAYEV Galib Jamal Oglu (case N°16),

- GUSEYNOV Suret Davud Oglu (case N°17),

- SAFIKHANOV Ilgar (case N°18),

-GUSEYNOV Guseynbala (case N°25).

106.       The co-rapporteurs call the Azeri Authorities to take the necessary measures to fulfill their commitments under opinion 222(2000) and recall that particularly in the case of ill detainees liberations for humanitarian reasons should be foreseen.

107.       According to a bureau’s decision of 25 March 2002, two Ad hoc sub-committees of the Committee on Legal Affairs and Human Rights and the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe on implementation of Resolution 1272 (2002) on political prisoners in Azerbaijan were created¹⁹. The Ad hoc sub-committee formed a Joint Working Party composed of five members, representative of various political groups of the Assembly, chaired by Mr Clerfayt (Belgium, LDR). The Joint Working Party (JWP) is mandated to assist the implementation of Resolution 1272(2002) on Political Prisoners and will pursue its activities in inviting members of the Azeri Delegation to the Council of Europe as well as Azeri high-level officials to contribute to the work of the JWP.

108.       After a meticulous examination of the list communicated to the Assembly, the number of remaining names of alleged political prisoners from this list is estimated -in spring 2002- to be approximately 300. On 24 April 2002 the Secretary General mandated²⁰ the same group of experts²¹ in order to continue the case-by-case examination of the remaining names from the initial list.

109.       In this regard, the co-rapporteurs wish to underline the importance of a continued co-operation with the experts of the Council of Europe. In particular they call the Azeri authorities to speedily provide the Council of Europe with the necessary documentation, including all the transcripts of judgments requested for the examination of the remaining cases.

110.       The co-rapporteurs believe that the pardon decrees offering liberation or reducing of their sentence to many prisoners is an adequate remedy to solving this issue. They underline that the corner stone of this question remains that most of these prisoners were either not granted a fair trial, or condemned for their believes or political affiliations. They restate that Opinion 222 provides for liberation or “new trials” to be conducted on the basis of the new legal framework adopted in Azerbaijan. They consider that a criminal can also be considered as a political prisoner if he is sentenced on the basis of his political activity and not for his crime. Therefore they reiterate that criminals ought be tried for this crime only and that the recommendation of the Assembly aims at encouraging the Azeri authorities to solve cases of political prisoners and not in releasing criminals. Such new trials have not taken place yet for any of the liberated prisoners.

111.       The Opinion 222 (2001) calls the Azeri Authorities “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”. It is clear that the trial should be accessible to journalists and respect all provisions for a fair trial as defined in the ECHR. Nevertheless obvious violations²² of procedure were reported by lawyers, especially in the cases of the trial of Mrs Gumbatov, Gamidov and Gaziev or Mr Mirzoev whose sentence was confirmed by the appeal court upon declaration of a witness - apparently called by the authorities - and after the expected witness refused to testify, allegedly under pressure.

112.       The co-rapporteurs wish to stress that a democratic systems aims at promoting a pluralistic society based on the principles of freedom of expression and freedom of political belief. These principles are fundamental for a tolerant society based on a nation reconciliated with its history. In this spirit the co-rapporteurs encourage the Azeri authorities to promote an inclusive climate where citizens and representatives of the civil society can express themselves and actively participate to the political life of the country.

113.       It is worth restating that in a situation of civil war conflicts cannot be judged according to criteria which are applicable in a state under rule of law; to achieve sustainable reconciliation historical research is needed as well as an evaluation of the conditions, which prevailed at the time of the conflict. The co-rapporteurs are of the opinion that it is unacceptable for a Council of Europe member state to hold political prisoners in its prisons and they appeal to the Azeri authorities to take steps to solve the problem as speedily as possible.

114.       The co-rapporteurs are of the opinion that the examination of the 716 cases by Council of Europe appointed experts is a limited exercise and that the competent Azeri authorities ought firstly to identify themselves other alleged political prisoners who deserve new trial in the framework of the new laws adopted in Azerbaijan and secondly to take all necessary measures to avoid new cases of political prisoners (such as Ms Fayna Gungurova recently arrested during a demonstration and still detained²³). The rapporteurs are ready to assist the Azeri authorities in this direction and suggest that further cases brought to the Assembly’s attention be studied on site, with the help -if requested- of one or two experts assigned to support the Pardon Commission in its work

C.       Media freedom

115.       Under Opinion 222 (2000), paragraph 14.iv.d, e and f, Azerbaijan undertook:

      “to guarantee freedom of expression and the independence of the media and journalists, and particularly to exclude the use of administrative measures to restrict the freedom of the media”;11

116.       Recent developments as regards media freedom indicate some positive trends in particular in improving media legislation. Nevertheless human rights NGOs have reported numerous cases of interference with freedom of expression, pressure brought on the independent media and harassment of journalists. The reported facts are very disturbing.

117.       On 19 July 2001 the Serious Crimes Court sentenced journalist Rahim Namzov, who works for the weekly Eliller, to six years of prison. He was accused of having taken part in rallies and meetings of the Karabakh Society, which is regarded as illegal. Mr Namzov says that he was attacked by policemen while collecting information for his newspaper, and that his equipment was confiscated and destroyed. A lawsuit was filed by the Defense Ministry against Ainuall Faullayev and the Monitor Magazine for infringing the Ministry’s honour and the court ordered compensation equivalent to 10,000 USD. In July 2002, according to the Chairman of the Committee to Protect Journalists “RUH”, there were about 15 alleged cases of harassment of journalists before the courts, which have not been considered in the final instance. The most controversial are the cases of Rauf Arifoglu, Editor in Chief of Musavat newspaper, who was accused of high treason and conspiracy for hijacking in August 2000 and the case of Elmar Guseinov and Shakhbaz Khuduoglu who were sentenced to a prison term and later pardoned by the President. The same organisation estimates that journalists’ rights are often violated including cases of physical abuse. The Prosecutor-General pledged that the controversial cases would be thoroughly investigated.

118.       Another example reported to the co-rapporteurs of official harassment of the media concerns the ABA television channel. It was closed down, seemingly as a result of pressure from the government and the Ministry of Taxation, which confiscated some of the company’s equipment.

119.       Two editors (of the newspapers Milletin Sesi and Bakinsky Boulevard whose Chief editor is Elmar Husseinov from the Monitor Magazine) have been sentenced to six months’ prison on charges of defamation in 2001. Both newspapers were closed down. President Aliyev signed a decree releasing the editors of Bakinsky Boulevard and Milletin Sesi, but the charges against them have not been dropped and the newspapers remain closed. Two other newspapers, Etimad and Femida, were closed down by court order. In addition, the founder and the editor of the newspaper Ulus were arrested and held in police custody on charges of assaulting one of their female staff.

120.       The Azeri authorities must be reminded of their responsibilities under art. 10 of the European Convention of Human Rights. They should be aware that the European Court of Human Rights has stated that the press is a barometer of democratic society and that politicians and people in the public eye must accept press surveillance of their every act.

121.       To use the criminal law in order to punish what the authorities regard as unjustified criticism is unworthy of a democratic society. Regardless of the content of the offending articles, prison sentences and the closure of a media organ cannot be regarded as an appropriate response to critical writings.

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

122.       With regard to the legislation, the Council of Europe criticised Article 19 of the 1999 Media Act, under which a court can close down a media organ on the ground of a criminal offence by one of its staff. The revised Law on Mass Media adopted introduced a number of recommendations presented by the Council of Europe in its legislative expertise ²⁴ including the deleting of article 19 and it seems that newspapers which had been closed on the basis of Article 19 of the Mass Media Law have been allowed to start operating again.

123.       The Council of Europe and various organisations championing press freedoms have criticised the Presidential Decree of 20 July 2001, which sets up a National Press, Television, Radio and Internet Council. The co-rapporteurs welcome the decision to repeal this controversial decree

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

124.       Lastly, as regards turning the national television channel into a public channel with an independent administrative council, the draft law has been submitted to the Council of Europe for appraisal. The opinion should be forwarded to the authorities before it is debated at the next Parliamentary session. A fruitful co-operation was initiated on the restructuring and management of the public channel. The co-rapporteurs remain worried that apparently only one out of the two national channels seems to be concerned by this ongoing reform.

125.       The co-rapporteurs welcome the co-operation of the Azeri authorities with the Council of Europe in the field of media legislation. Nevertheless it is regrettable that the law on Radio and Television Broadcasting was adopted on 25 June 2002 without awaiting the legislative expertise from the Council of Europe, especially since a number of problematic provisions were identified, in particular regarding licensing procedures for broadcasters. This law is now awaiting the President’s signature to come into force. Some provisions of this legislation open up the potential for favouritism to be given to chosen stations, which raise serious concerns in a pre-electoral period. Similarly many rural television stations might be affected by this legislation.

126.       A legislative expertise of the draft law on Public and Private Broadcasting as well as on the Presidential decree on creation of a National Council on Radio-TV broadcasting will be provided by the experts of the Council of Europe to the authorities before they are submitted to the October session of the Parliament. It is important that the TV and Radio Council will not only be financially but also politically independent and representative of all Azeri society.

127.       Both pieces of legislation -including the Presidential decree- could pose serious threats to the functioning of independent media and access to objective information in Azerbaijan. The co-rapporteurs are hoping that the relevant authorities will take into consideration -before these laws enter into force- the views of the experts of the Council of Europe, aiming at establishing transparent and democratic procedures which would ensure that the Radio and TV council will be truly independent. In addition, the co-rapporteurs call the Azeri authorities to release publicly these draft laws and allow the representatives of the civil society to comment on them and to participate openly in the elaboration of this legislation.

128.       Lastly, a recent presidential decree issued in August 2002 raises serious concerns. The decree regulates disclosure of state secrets in mass media and sets up new rules for consulting with a national commission on state secrets before releasing information. It is not clear to the co-rapporteurs whether the concepts of “state secret” or “state interest” are sufficiently defined in the law on state secret to which the decree refers. Although the original text of the decree is not available at the time of writing this report, the co-rapporteurs are worried that this decree might restrain the fundamental right of journalists not to disclose their sources of information and result in restricting journalists to publish information related to state activities. This requirement might also open the door to a new form of censorship. The co-rapporteurs call the Azeri authorities to ensure that no administrative measures restrict the freedom of the media in Azerbaijan as stipulated in Opinion 222 (2000).

D.       Freedom of religion and alternative service

129.       Under Opinion 222 (2000) (paragraph 14.iii.g) Azerbaijan undertook:

      “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”130

130.       The recently amended Constitution provides for “an alternative service” to replace military service in case serving in the armed forces runs counter someone’s conscience and beliefs. Nevertheless this provision is to be applied “in the cases specified by law”. It is not clear to the co-rapporteurs to what law this article refers to and in which cases alternative military service is foreseen. But it seems that the only Presidential decree dated 1992 related to this matter does not foresee alternative service for conscientious objectors. The co-rapporteurs encourage the authorities to develop the adequate legal framework for this constitutional provision to be implemented in respect of European standards in this matter.

131.       As to the second part of the commitments, no available information enables the rapporteurs to believe that steps were taken towards pardoning of conscientious objectors and providing them with an alternative to military service.

132.       The co-rapporteurs had two meetings with the President and some members of the State Commission on Religious Organisations. The commission, established in June 2001, is responsible for supervising the implementation of the 1999 Religions Act and for harmonious relations between the communities. The President and the Vice-President of the Commission are appointed by the President of the Republic, whereas the President of the Commission has the right to designate the other members.

133.       The representatives of the main religious communities in Azerbaijan – the Muslim, Russian Orthodox and Jewish communities – stated that they had totally unrestricted freedom of worship. The visit of the Catholic Pope in Azerbaijan in May 2002 and the decision to build a catholic church in Baku show the openness and the interest of the authorities in granting every citizen the right to practice his own faith.

134.       However, the process of re-registration of religious communities and groups raises concern. Several complaints were submitted to the rapporteurs and in particular the problem faced by small religious groups to get registered in Azerbaijan. This process of registration of religious groups resulted in April 2002, in the registration of 125 religious entities (for 406 entities registered under the previous law), the non-registered entities being banned from practicing. The co-rapporteurs reiterate that only a non-discriminative treatment of all religious groups can guaranty freedom of conscience and religion.

E.       Minority rights

135.       On being admitted to the Council of Europe, Azerbaijan undertook (see Opinion 222 (2000), paragraph 14.i.d and e and iv.g):

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

136.       Before even becoming a member of the Council of Europe, Azerbaijan had met its undertaking by ratifying the Council of Europe Framework Convention for the Protection of National Minorities, on 26 June 2000. The convention came into force on 1 October 2000.

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

137.       The co-rapporteurs recall that the Azeri authorities have undertaken to ratify the “European Charter for Regional or Minority Languages” signed on 21 December 2001 and urge them to proceed with ratification.

“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”.

138.       Draft legislation on minorities is being prepared and the authorities confirmed their keenness to meet the time limit (January 2003) they accepted on joining the Council.

139.       The co-rapporteurs met representatives of various minorities in Azerbaijan^25. These representatives mostly stated that their rights are respected and that they are fully integrated into society and suffer no discrimination at all. They are in general allowed to develop their cultures, they have a range of media and, in those areas with a large minority population, they have schools, which provide teaching in their language.

140.       Although the rapporteurs recognize the efforts of the authorities towards accommodating the numerous minority groups, it seems that a deeper study of the desiderata expressed by leaders of national minorities groups could help strengthening the relations between all communities and government in Azerbaijan. In particular, it seems advisable to pay special attention to the harmonious development of cultural rights, especially in the field of teaching national languages, printing literature in national languages and registration of NGOs representing these communities.

141.       During their various visits the co-rapporteurs have been to a limited extent able - especially in the regions - to assess the multi-cultural, linguistic and ethnic environment in Azerbaijan. They wish to stress that Azerbaijan is one of the countries in the region that achieved to a limited extent the accommodation of a broad diversity of peoples, cultures and religions. Such diversity is a wealth for Azerbaijan and it is particularly important, in order to preserve this balance,that freedom of expression, association and cultural rights are granted unlimitedly to these communities. The co-rapporteurs will closely follow developments in this field, especially in view of the commitment entered into upon ratification of the framework law convention on National Minorities.

F.       Freedom of association

142.       On accession, Azerbaijan undertook (see Opinion 222 (2000), paragraph 14.iv.h):

      “to re-examine and amend, at the latest within one year of its accession, the rules governing registration of associations and appeals procedures”.143

143.       Legislation on non-governmental organisations (associations and public foundations) was prepared in close co-operation between the Council of Europe, the High Commissioner for Refugees and the Presidential Administration. It came into force in October 2000. However, the fact that it does not specify arrangements for registration or for taxation remains a subject of concern.

144.       Registration of non-governmental organisations and political parties at present falls under the Ministry of Justice, which registered in 2001 more than 2000 NGOs. However a large number of complaints reached the co-rapporteurs during their visits. “Ecolex-Azerbaijan”, an environmentalist NGO established in 1999, submitted all necessary documentation on 16 October 2000 but it was not registered at the end of 2001. Similarly the Association ”Lawyers of XXIst Century” received several refusals from the Ministry of Justice. It was noted that a number of NGOs related to important figures or political parties from the opposition systematically faced administrative problems in registering with the Ministry. Some of these registrations are simply refused but not notified, which prevent the applicants from challenging the decision in the courts. Some other NGOs stated that the registration has been frozen for several months without any explanation. Similar complaints arose on problems with registration of local NGOs working in the field of Human Rights and fundamental freedoms.

145. According to local NGOs, there are about 30 political parties in such a situation. For example, the Civil Unity Party (Party of the supporters of former president Ayaz Mutalibov) complains that it is still not registered despite having submitted all the necessary documents in June 2000. The same unclear situation leading to an absence of legal status is reported for the Aghrar Party, the Communist Party, the National Democratic Party and the Liberty Party among others. In addition, leading opposition parties experienced problems with renting office premises. For instance the Party of National Independence (AMIP) was forcibly removed from the building, where its office was located. The Musavat Party was also warned to leave its office located in the center of the city. Both parties had occupied these premises since 1993. However, at the same time, the ruling Party YAP opened new offices in the center of Baku.

146. The co-rapporteurs are also worried by the fact that some independent and internationally recognised non-governmental organisations such as Caritas International and Don Bosco faced tremendous difficulties in attempting to register.

147. Another concern arose more recently with the de-registration of several NGOs including several organisations of religious obedience. Although the co-rapporteurs understand perfectly the duty of the Azeri Government to strengthen -in this period- the struggle against terrorism and extremism, it is in their opinion crucial for the stability of a country that each every citizen is allowed to express himself openly and enjoy freedom of association.

148. 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, as a basic principle of a European democracy as enshrined in the ECHR. Following the expert assistance which was given on the drafting of the law on associations (adopted in June 2000) expert meetings have focused in 2001 on the elaboration of the draft law on registration of legal entities. The draft law has passed several readings in the Parliament but has not yet been adopted. The co-rapporteurs strongly encourage the Azeri Parliament to finalise the adoption of this draft law, taking into account the Council of Europe experts recommendations.

149. The co-rapporteurs reserve their judgment on the newly adopted amendment of Art 130 para.7 of the Constitution that allows not only the Constitutional Court but also the ordinary courts to take decisions on “prohibition of political parties and other public associations”. They hope that this new provision will not open the door to abuses of power by courts at the local level.

150.       The Azeri authorities are invited to take the necessary steps to introduce regulations under which associations, NGOs and political parties are registered and taxed according to fixed, fair and equitable criteria. The co-rapporteurs reiterate that it is unacceptable that the development of civil society is hampered by administrative or political barriers. They call the Azeri authorities not only to take the necessary measures to ensure that the legal framework for non-governmental NGOs is in line with European standards, but also to make sure that it is properly implemented by the relevant authorities and therefore facilitates the development of an independent, free of pressure and active civil society.

151.       Lastly the co-rapporteurs reiterate that it is urgent to reach effective arrangements to protect freedom of expression, of association and of peaceful assembly, necessary for a sound development of democratic society in Azerbaijan. They particularly hope that substantial efforts will be made to ensure a better and fair administration of requests for public demonstrations.

IV.       SETTLEMENT OF THE CONFLICT IN NAGORNO-KARABAKH

152.       The conflict in Nagorno-Karabakh is a continuing cause of concern for the Council of Europe, as for the entire international community, on account of its domestic, regional and international consequences. It is to be noted that the negotiations concerning this conflict have been under way since 1992, under the aegis of the OSCE and then more specifically the Minsk Group, whose three co-chairs are the United States, France and Russia. The Group has made substantial efforts to formulate a peace plan for the conflict. In 1997, when the two countries' presidents had accepted the staged settlement plan presented by the three co-chairs, the negotiations finally broke down after its rejection by the Nagorno-Karabakh representatives, the forced departure of President Ter Petrossian and pressure from certain members of the Armenian government.

153.       When it asked the Parliamentary Assembly to express an opinion on the membership requests of Armenia and Azerbaijan, the Council of Europe's Committee of Ministers, in its Resolution (96) 32 on Azerbaijan, stated that a closer relationship with the three transcaucasian countries of Armenia, Azerbaijan and Georgia "would demand not only the implementation of substantial democratic reforms, but also their commitment to resolve conflicts by peaceful means".

154.       In its opinions on the membership applications of Armenia and Azerbaijan, the Parliamentary Assembly said that the two countries' accession "could help to establish the climate of trust needed for a solution to the Nagorno-Karabakh conflict"²⁶.

155. Finally, in accordance with Opinion No. 222 (2000), paragraph 14.ii, Azerbaijan has undertaken:

"to continue efforts to settle the conflict by peaceful means only;

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".

156. In this context the co-rapporteurs welcome the fact that the two countries maintain regular high-level contacts (21 meetings of the two Presidents since 1999) to discuss this issue and hope that the latest talks held between the Presidents (meeting in Sardarak Region of Nakhitchevan on 14 August 2002) will soon lead to an acceptable settlement of the territorial conflict.

157. The Parliamentary Assembly has considered this issue on a number of occasions. For a detailed description of how the conflict has evolved and the Assembly's position, the co-rapporteurs would refer to the previous reports and texts adopted.

158. In its most recent resolution on the subject, Resolution 1119 (1997) on the conflict in Transcaucasia, the Parliamentary Assembly "appeals to all parties to the conflict to intensify direct negotiations with a view to achieving a political settlement to the conflict guaranteeing restitution of occupied territories and the return of refugees and displaced persons, satisfactory alternative status for Nagorno-Karabakh as well as its security".

159. The Political Affairs Committee has also been asked to report on the conflict between Armenia and Azerbaijan (Reference No. 2659 of 8 November 2001²⁷), and has appointed at its meeting on 2^nd of July 2002 Mr. Terry Davis (United Kingdom, SOC), Rapporteur.²⁸.

160. Rather than entering into the details of the conflict the co-rapporteurs shall therefore confine themselves to a brief summary of the Azeri authorities' position and their willingness to honour the commitment referred to in paragraph 23.

161.       Azerbaijan demands respect for its territorial integrity, while seeking the maximum possible autonomy for Nagorno-Karabakh within the Republic of Azerbaijan and undertaking to guarantee the security of all the national minorities living in the country. It also claims the restitution of all the occupied territories, the return of refugees and compliance with the relevant United Nations resolutions²⁹.

162.       The Azeri authorities consider the conflict to be a bilateral one with Armenia and refuse to negotiate directly with the representatives of the Nagorno-Karabakh current administration. The representatives of the Presidential Administration met during the visits emphasised on a number of occasions the country's commitment to a political solution to the conflict, excluding any use of force. The co-rapporteurs encourage the Azeri authorities to keep this peaceful approach and ensure that this conducive spirit is maintained in Azerbaijan.

163.       However, several persons expressed both official and personal frustration over the deadlock in the negotiations. The "cold peace" established by the 1994 cease-fire, the occupation of part of Azeri territory and the refugee problem are among the causes of this frustration, exacerbated by the feeling, also frequently expressed, that the international community is applying double standards by not reacting to the violation of principles set forth in the United Nations Charter and resolutions as well as in the OSCE Helsinki final act and decisions .

164.       Here particular note should be taken of the concerns expressed by the Minister for Foreign Affairs in 2001: he confirmed Azerbaijan’s commitment to settling the conflict by entirely peaceful means but pointed out that, in the present ceasefire situation, with the war rhetoric escalating, a settlement would take decades. Azerbaijan wanted the negotiations stepped up with a view to a political agreement based on international law and the principles the OSCE had mapped out, and he encouraged the Council of Europe to assist the process.

165.       Finally, the co-rapporteurs wish to express their support to the initiative aiming at the re-opening of the Baku-Nakhitchevan-Erevan transport route in partnership with the European Union³⁰. They see this project as a concrete step towards development of a regional co-operation and as an essential element of the peace settlement. They encourage all parties to the conflict to continue positives steps in this direction, in the interest of their populations.

Conclusions

166.       Azerbaijan has now been a Council of Europe member for more than a year and a half. The Azeri authorities reiterated their determination to meet the undertakings and obligations they signed up to when they joined.

167.       As stated in the report, there have been wide-ranging legal reforms, which, however, are quite plainly hampered at every turn by attitudes which are not only a legacy of the old Soviet regime, with the result that implementing the reforms still demands serious efforts.

168.       It should also be recalled that that even the best laws cannot serve their purpose if the political and social context is not marked by the determination and strong will to respect and implement these laws fairly.

169.       It will not be possible to implement the legal reforms properly until the legislature has been made genuinely independent of the executive, embodied by the President. Here we touch on a crucial factor in setting up the rule of law, and the Azeri authorities will have to make great endeavours to provide it with solid foundations.

170. In addition, effective arrangements to protect freedom of expression, of association and gathering, are necessary for a sound development of democratic society in Azerbaijan. The co-rapporteurs call the Azeri authorities to take all necessary measures to guaranty all citizens with those basic freedoms. They encourage the authorities to develop the necessary dialogue with the population, other political factions and representatives of the civil society so that all are invited to participate in the political life of the country.

171. Progress has been made in the national transition to a pluralist democracy based on the rule of law and respect for human rights. Most of the formal obligations and some of the undertakings which Azerbaijan gave upon accession to the Council of Europe have been met within the time limits. Nevertheless significant progress needs to be made to implement these reforms.

172. The issue of political prisoners has still not been solved and it is vital that the Azeri authorities show real determination to eradicate a practice, which is a blot on Azeri society, and do their utmost to avoid new imprisonment due to political reasons. The co-rapporteurs reiterate that for a Council of Europe member state the holding of political prisoners is totally unacceptable.

173. Azerbaijan is keeping its promise to press on with the efforts to settle the Nagorno-Karabakh conflict solely by peaceful means. However the prevailing frustration in Azeri society at the deadlocked negotiations on the conflict must be taken seriously. All concerned must endeavour to reach a settlement as soon as possible. It is vital that the population be informed of the progress and content of negotiations and that Parliament regularly debates the matter. Psychologically it is necessary to prepare the people and the political forces for an eventual settlement, which is bound to require concessions and compromises on all sides. It is recalled that the closing of the monitoring procedure can only be envisaged upon fulfillment of all commitments, which in the case of the two countries involved in the conflict is an agreement on a peaceful solution of the Nagorno-Karabakh question which has been pending now for more that 8 years.

174. It is very likely that a number of the undertakings which should have been honoured within two year from admission will only partially be met. The co-rapporteurs would like once more to reiterate that conventions should not only be signed and ratified and old laws should not only be reformed, but that it is expected that these new regulations are implemented and become a support in the daily life of Azeri citizens. The co-rapporteurs urge the authorities to continue and step up their efforts to meet their undertakings within the time limits by a continued co-operation with the Council of Europe.

APPENDIX I

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 II

Programme of the fact-finding visits to Azerbaijan

i. First visit to Azerbaijan: 29 October – 3 November 2001

29 October 2001

10.00       Meeting with the leaders of the main religious confessions of Azerbaijan (Board of Muslims of the Caucasus, Russian Orthodox Church, Jewish Community) at the State Commission for Religious Organisations

11.30       Meeting with Baku State University Staff

13.00       Lunch

15.00       Meeting with Baku Khazar University Staff

16.30       Meeting with representatives of intellectuals of Azerbaijan (writers, poets, scholars, artists)

20.00       Working dinner

30 October 2001

09.00       Meeting with Ambassadors of the Council of Europe member states to the Republic of Azerbaijan

10.30       Meeting with Mr Bogdan Marczewski, interim Head of the OSCE Office in Baku and representatives of international organisations

13.00       Lunch

14.00       Meeting with representatives of human rights non-governmental organisations

15.30       Meeting with Mr Khanlar Hajiyev, Chairman of the Constitutional Court

17.30       Meeting with representatives of the Nagorno Karabagh community

20.00       Working dinner

31 October 2001

08.00       Departure to IDP camp in the district of Barda

      Departure to the district of Sheki

      Meeting with local authorities of Sheki

01.00       Return to Baku

1st November 2001

09.00        Meeting with the delegation of the Republic of Azerbaijan to the PACE

10.00       Meeting with the leaders of parties represented in the Milli Mejlis

11.00       Meeting with the leaders of opposition parties

12.30        Meeting with Mr Mazahir Panahov, Chairman of the Central Election Commission

13.30       Lunch

15.00       Meeting with Mr Murtuz Aleskerov, Speaker of the Milli Mejlis

16.00       Meeting with Mr Fikrat Mammadov, Minister of Justice

17.00       Visit to Prison N° 2, Baku

20.00       Working dinner with the Minister of Justice

2 November 2001

09.30       Meeting with representatives of media

10.30       Meeting with Mrs Sudaba Hasanova, Chairperson of the Supreme Court

11.30 Meeting with Mr Zakir Garalov, Prosecutor General

12.30       Meeting with Mr Ramil Usubov, Minister of Interior

13.45       Lunch

15.00       Meeting with Mr Vilayat Guliyev, Minister of Foreign Affairs

16.00       Meeting with Mr Artur Rasizade, Prime Minister

17.10       Meeting with Mr Ramiz Mehdiyev, Head of the Executive office of the President

20.00       Working dinner with the PACE delegation

3 November 2001

07.00       Meeting with Mr Ismaïlov, barrister

08.00       Visit to Gobustan prison and meeting with MM. Gumbatov, Gaziyev and Gamidov

14.00       Meeting with the Bar Association

17.15       Meeting with the representatives of national minorities

21.00       Working dinner.

ii. Second visit to Azerbaijan: 15-22 July 2002.

16 July 2002

08.00       Meeting with Chairman of the Constitutional Court, M.Khanlar Hajiev

09.30       Meeting with Ms Lydie Polfer, President of the Committee of Minister; Hayat Regency

10.00       Visit to Gobustan Prison, meeting with former Prime Minister Husseynov and other detainees

11.00       Visit to women’s prison in Baku, and colony N° 6 (Janmirza Mirzoev)

14.00       Departure to Guba

18.30       Meeting with Guba city Maire

20.00       Diner with Representatives of National Minorities

Overnight in Guba

17 July 2002

09.00       Departure to Gusar, Khachmaz (Meeting with Solmaz Mehdiyeva of the Human Right Resource Centre in Khachmaz), meeting with representatives of municipalities and Office of the Governor

Return to Baku in the afternoon

18 July 2002

Programme with Ambassadors, Representatives of NGOs and political Parties to be organised by the co-rapporteurs with the help of the Special Representative of the Secretary General of the Council of Europe in Baku.

08.30       Meeting with the Head of the OSCE Mission in Azerbaijan

09.30       Meeting with representatives of European Embassies

10.30       Meeting with Representatives of local NGOs Eldar Zeynalov from the the Human Rights Center of Azerbaijan, Rena and Murat Sadadinov, Avaz Hassanov from the Society of Humanitarian Researches Azerbaijan Foundation for Democracy and with Ms Leyla Yunus, Director Institute of Peace and Democracy and other NGOs

12.00       Meeting with representatives of the Religious Freedom Defence Center

13.00       Working Lunch with Inkeri Aarnio-Lwoff, Special Representative of the Secretary General of the Council of Europe in Azerbaijan,

15.30        Meeting with Isa Gambar, Chairman of the Musavat Party

16.15       Meeting with the Chairman of the Azerbaijan Democratic Party

17.00       Meeting with E.Mamedov the Chairman of ANIP Party

17.45       Meeting with the Executive Head of the Yeni Azerbaijan Party

18.30       Meeting with the Chairman of Popular Front of Azerbaijan

19 July 2002

09.00       Meeting with the Speaker of the Parliament

10.00       Meeting with the Chairman of the State Committee for Relations with Religious Organisations

12.00       Meeting with the Ombudsman of Azerbaijan

12.00       Meeting with the Chairman of the Central Election Commission

15.00       Meeting with the Chairman of the Constitutional Court

16.00       Meeting with the Chairman of the Supreme Court

17.00       Meeting with the Minister of Interior

20 July 2002

Visit to the region of Nakhitchevan, as previously discussed with Mr S.Seyidov one-day trip if possible

Meeting with the Head of the Parliament of Nakhitchevan

Meeting with Prime Minister of the Autonomous Republic

Meeting with local representative of the Association for Protection of Women's Rights named after Dilara Aliyeva

21-22 July 2002

Visit to the Southern Parts of Azerbaijan, with particular focus on National Minorities issues and Local Self Government, Visit to Lenkoran, Masally (meeting with Representative of the Talysh Cultural Centre in Masally, Mr Khalil Tolysh) and Yardemly. Meeting with Maires of villages and Lenkoran city.

APPENDIX III

Letter from the Chairman of the Monitoring Committee to the President of the Assembly

Committee on the Honouring of Obligations and Commitments

by the Member States of the Council of Europe

“Monitoring Committee”

The Chairman

Strasbourg, 7 November 2001

Dear Mr President,

At its meeting on 6 November, the Monitoring Committee has taken note of a statement of its co-rapporteur Andreas Gross on the fact-finding visit to Azerbaijan, which he and co-rapporteur Martinez-Casan have made on 29 October – 3 November last.

As you know, to release or to grant a new trial to political prisoners is one of the commitments which Azerbaijan undertook on its admission to the Council of Europe.

In the course of their visit, the co-rapporteurs have been informed by the Azeri authorities that they could not accept the definition of the term “political prisoner” used by the experts in the report which has been published by the Secretary General of the Council of Europe on 24 October last. However, these authorities have accepted a proposal to reconsider with the co-rapporteurs, the rapporteur of the Legal Affairs Committee and, if appropriate, the Secretary General’s experts, the issue of political prisoners with a view to establishing criteria on the basis of which agreement could be reached on whom of the odd 700 prisoners listed by the Azeri NGO’s, could indeed be qualified as political prisoners.

The Monitoring Committee has also been informed that on request of the Azeri authorities a meeting has been convened on 7 November next of the Secretary General’s experts and representatives of Azerbaijan to discuss certain aspects of the experts’ report.

Depending on the outcome of the 7 November meeting, the Monitoring Committee has agreed to support the proposal of its co-rapporteurs and has instructed them to make the necessary arrangements in time for the January 2002 part-session, when the rapporteur of the Legal Affairs Committee is expected to present a report on the issue of political prisoners.

You might wish to inform the Bureau of the above.

      Yours sincerely,

      J. B. Mota Amaral

Lord Russell-Johnston

President of the Parliamentary Assembly

Council of Europe

Strasbourg

APPENDIX IV: Treaties signed and ratified on 04/09/02

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

ETS No.	Title			Opening for signature
001	Statute of the Council of Europe			05/05/49
		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
		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
	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
	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
		Ratification or accession: 16/01/02	Entry into force on : 16/01/02
018	European Cultural Convention			19/12/54
		Ratification or accession: 25/04/97	Entry into force on : 25/04/97
024	European Convention on Extradition			13/12/57
	Signature: 07/11/01	Ratification or accession: 28/06/02	Entry into force on : 26/09/02
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
	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
		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
		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
	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
		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
		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
	Signature: 07/11/01	Ratification or accession: 28/06/02	Entry into force on : 26/09/02
100	European Convention on the Obtaining Abroad of Information and Evidence in Administrative Matters			15/03/78
		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
		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
		Ratification or accession: 28/03/00	Entry into force on : 01/07/00
112	Convention on the Transfer of Sentenced Persons			21/03/83
	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
	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
		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
	Signature: 25/01/01	Ratification or accession: 15/04/02	Entry into force on : 01/07/02
120	European Convention on Spectator Violence and Misbehaviour at Sports Events and in particular at Football Matches			19/08/85
	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
	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
	Signature: 21/12/01	Ratification or accession: 15/04/02	Entry into force on : 01/08/02
143	European Convention on the Protection of the Archaeological Heritage (Revised)			16/01/92
		Ratification or accession: 28/03/00	Entry into force on : 29/09/00
147	European Convention on Cinematographic Co-Production			02/10/92
		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
	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
	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
	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
		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
	Signature: 11/04/97	Ratification or accession: 10/03/98	Entry into force on : 01/02/99

31 Treaties found.

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 and Opinion No. 222 (2000)

Draft resolution unanimously adopted by the committee on 10 September 2002

Members of the committee: Mrs Durrieu (Chairperson), Mr Pollozhani, Mrs Severinsen, Mr Frunda (Vice-Chairpersons), Mrs Akgönenç, Mr Akhvlediani, Mr B. Aliyev, Mr Arzilli, Mr Atkinson, Mrs Belohorska, Mr Bindig, Mr van den Brande, Mr Budin, Mr Cekuolis, Mr Christodoulides, Mr Cilevics, the Rt.Hon.T. Davis, Mr Debono Grech, Mrs Delvaux-Stehres, Mr Dobelis, Mr Einarsson, Mr Enright, Mr Eörsi, Mrs Feric-Vac, Mr Frey, Mr Glesener, Mr Gligoroski, Mr Gross, Mr Gürkan, Mr Gusenbauer, Mr Hancock, Mr Haraldsson, Mr Hegyi, Mr Holovaty, Mr Jakic, Mr Jansson, Mr Jaskiernia, Mr Jurgens, Mrs Kautto, Lord Kilclooney, Mr Kirilov, Mr van der Linden, Mr Lintner, Mr Magnusson, Mr Martinez Casan, Mr Medeiros Ferreira, Mr Mollazade, Mr Neguta, Mr Olekas, Mr Olteanu, Mr Pangalos, Mr Rakhansky, Mrs Ringstad, Mr Rivolta, Mr Rogozin, Mr Rustamyan, Mr Saglam, Mrs Shakhtakhtinskaya, Mr Shishlov, Mr Slutsky, Mr Smorawinski, Mr Soendergaard, Mrs Stoyanova, Mr Surjan, Mr Tepshi, Mrs Tevdoradze, Mr Vahtre, Mr Vella, Mr Weiss, Mrs Wohlwend, Mr Yanez-Barnuevo, Mr Zacchera, Mr Zierer

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

Secretaries to the committee: Mrs Ravaud, Mr Mezei, Mrs Clamer, Ms Mathey

¹ The programmes of the visits appear in Appendix II.

² See section IV.

³ Source: US State Department.

⁴ Source: representatives of the Azeri community of Nagorno-Karabakh met in Baku during our visit.

⁵ See the report from the Committee on Migration, Refugees and Demography on “Situation of Refugees and Displaced Persons in Armenia, Azerbaijan and Georgia” June 2002, rapporteurs Ms Vermot-Mangold (Switzerland, SOC).

⁶ See the reports on the observation of these elections: Doc. 7430, Addendum III (1995 parliamentary election) and Doc. 8256 (1998 presidential election).

⁷ See the report on local democracy in the Republic of Azerbaijan, Bureau of the Congress of Local and Regional Authorities of Europe, CG/BUR (6) 172, 10 May 2000.

⁸ The remaining seats are distributed as follows: Communist Party 2 seats; Motherland Party 2 seats; Azerbaijan Social Welfare Party 1 seat and Alliance Party for Azerbaijan 1 seat, independent 28 seats. (information dated August 2002, National Assembly of the Azerbaijan Republic).

⁹ CDL-INF(2000)17 and Programme of co-operation with Azerbaijan, CDL (2001) 5

¹⁰ Report on local democracy in the Republic of Azerbaijan, Bureau of the Congress of Local and Regional Authorities of Europe, CG/BUR (6) 172, 10 May 2000.

¹¹ Report on the National Conference “Institutional Dialogue between the State and Local Authorities in Azerbaijan” Baku, 5-6 December 2001. CPL/INST (8) 61

¹² Opinion of the Venice Commission on the draft Constitution of the Nakhitchevan Autonomous Republic CDL-INF (1997) 006.

¹³ CDL (2001)83

¹⁴ Opinion on the draft law on the Constitutional Court of the Republic of Azerbaijan, 8-9 March 2002, CDL-AD (2002) 5.

¹⁵ The Secretary General appointed three leading human rights lawyers: Professor Stefan Trechsel, Zurich University, a former president of the European Commission of Human Rights; Professor Evert Alkema, Leiden University, who is a member of the Dutch state council and a former member of the European Commission of Human Rights; and Mr Alexander Arabadjiev, a former judge of Bulgaria’s Constitutional Court and a former member of the European Commission of Human Rights.

¹⁶ Secretary General/Inf (2001) 34 and addenda, 24 October 2001.

¹⁷ See letter from the Chair of the Monitoring Committee to the President of the Parliamentary Assembly of 7 November 2001 (Appendix III hereto).

¹⁸ See report of independent experts SG/Inf(2001)34 and addenda thereto SG/Inf (2001)

¹⁹ See synopsis N° 2002/057 on the first meeting of the Joint Working Group, 29 April 2002.

²⁰ See doc SG/COM (2002) 793, Communication of the Secretary General dated 18 April 2002.

²¹ Less M. Arabadjiev, who resigned.

²² Including problems faced by lawyers in meeting regularly with convicted persons (in the case of Gamidov), unexplained rejections of petitions and objections particularly on the Court’s Composition (in the case of Gumbatov), upholding of accusations based on old Criminal Code notwithstanding the adoption of a new code, restrictions on access to the court room for journalists.

²³ Report CM(200279 Ago Monitoring Group, 13 June 2002.

²⁴ Analysis of the Draft Amendments to the Law on Mass Media of the Republic of Azerbaijan and the Decree of the 20 July 2001 on the creation of a National Council of Press, TV and Internet, 21 September 2001, Media Directorate, DGII.

²⁵ I.e. representatives of the Russian, Ukrainian, Meshket, Avar, Lezghin, Talish, Tatar and Kurd minorities.

²⁶ Opinion No. 221 (2000) on Armenia's application for membership of the Council of Europe (para. 8) and Opinion No. 222 (2000) on Azerbaijan’s application for membership of the Council of Europe (para. 9).

²⁷ Following a Motion for a Resolution Doc. 9239, dated 27 September 2001.

²⁸ Synopsis No. 2002/089 Political Affairs Committee, 2 July 2002.

²⁹ United Nations Security Council Resolutions 822, 853, 874 and 884 of 1993, the last of which reaffirms the territorial integrity of Azerbaijan and of all other states in the region, demands the withdrawal of occupying forces from "recently occupied areas" of Azerbaijan and calls on Armenia "to use its influence to achieve compliance by the Armenians of the Nagorny Karabakh region of the Azerbaijani Republic with Resolutions 822 (1993) , 853 (1993) and 874 (1993)".

³⁰ Conclusions of the third meeting of the EU-Azerbaijan Cooperation Committee, 12 July 2002.

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).