REPORT

ON THE CURRENT CONDITION OF DEMOCRACY IN AZERBAIJAN

Baku, Azerbaijan
February 2009

I. HUMAN RIGHTS
1. Constitutional framework for protection of human rights

 48 articles of the Constitution of the Republic of Azerbaijan (Articles 24-71) refer to the basic rights and liberties of a person and citizen. Fifteen out of rights set out in these articles refer to civil rights, four to political rights, six to liberties, twelve to social-economic rights and three to cultural rights.
 Before the adoption of the first Constitution Act of independent state of Azerbaijan in 1995, the Republic of Azerbaijan had already became a party to several international standards, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the UN Convention on the Rights of the Child. The Constitution contains human rights and freedoms set out in the Universal Declaration of Human Rights and both Covenants. Article 12 of the Constitution declares that “the highest priority objective of the state is to provide rights and liberties of a person and citizen”.
Azerbaijan continued its commitment to international standards after the adoption of the Constitution. As a result, the country adhered to 7 intergovernmental agreements (Covenants, annexed facultative protocols and conventions) that are monitoring mechanisms of the UN, ratified more than 50 Conventions of the International Labour Organization, including 8 core conventions. In the beginning of 2009, the Parliament of Azerbaijan ratified another important document - the Optional Protocol to the UN Convention against Torture.
Azerbaijan demonstrated its commitment to international standards that possess more serious and specific mechanisms for the provision of human rights and freedoms by joining the Council of Europe in the year of 2001. It committed to the European Convention for the Protection of Human Rights and Fundamental Freedoms and attached protocols, 18 out of 30 articles of the European Social Charter, as well as the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and other European standards.
In December of 2002, the Parliament of Azerbaijan adopted “The Constitutional Law On Regulation of Implementation of Human Rights and Freedoms in the Azerbaijan Republic” for the effective implementation of rights and freedoms set out in the European Convention

2. General condition of human rights   
The continuation of global pressure on human rights and freedoms, consistent and systematic restriction of human rights and freedoms in Russia had also a negative impact on Azerbaijan. Full or partial use of these practices is being observed in Azerbaijan. Despite the fact that there are no serious impediments to the right for joining political parties, public organizations or trade unions, such organizations face traditional obstacles in obtaining the status of legal entity and getting registration in state register. Notwithstanding that, the registration procedures in recent years have considerably been simplified both in legislation and practice.
Important step has been taken in provision of freedom of assembly and the “Law on Freedom of Assembly” has positively been amended and updated in cooperation with international institutions. However, traditional impediments to the freedom of assembly have become even strict. No protest action held by political powers and public unions with the agreement of government was registered during 2008.
2008 was also the year of presidential elections, which was an important political event. International and local observers came to the conclusion that the presidential elections of 2008 was more fair and free than the previous elections, but it was stated that as a result of continuous pressure on political opposition, balance of power radically changed in favour of the authorities and serious disparity emerged between political forces. A weak opposition lost its competitiveness and was forced to boycott the elections in order to preserve its political image. In this respect, the elections resulted in sharp differences in votes between the main candidate and others.

II. FREEDOM OF EXPRESSION

In view of domestic law, freedom of expression was first defined in the Constitution of the Azerbaijan Republic of 1995. Freedom of expression was presented as “Freedom of thought and speech” in the Article 47 of the Constitution. According to the Article “Everyone may enjoy freedom of thought and speech. Nobody should be forced to promulgate his/her thoughts and convictions or to renounce his/her thoughts and convictions”. The term of the article is a little indefinite, but in essence, it could be understood as everyone has freedom of expression. The limits of freedom of expression are defined in the third part of the Article: “Propaganda provoking racial, national, religious and social discord and animosity is prohibited”. Thus, propaganda provoking racial, national, religious and social discord and animosity could not be regarded as freedom of expression. According to the third paragraph of the Article 71 of the Constitution, “Rights and liberties of a human being and citizen may be partially and temporarily restricted on announcement of war, martial law and state of emergency, and also mobilization, taking into consideration international obligations of the Azerbaijan Republic”. There are no other restrictions on human rights in the Constitution.   
Additional “reasons” for the restriction of these rights were revealed in the Constitutional Law adopted by the Parliament of the Azerbaijan Republic in 2002, which provide for the extension of restriction of human rights and freedoms, and these “reasons” were regarded as new nuances that were not foreseen in the Constitution. According to the Article 3.6 of the Constitutional Law, “Beside on other grounds, stipulated in the Constitution of the Republic of Azerbaijan, freedom of expression provided for in the Article 47... of the Constitution may be subject to restrictions... as are necessary for the prevention of disorder as well;... in the interests of public safety as well;... freedom of expression and freedom of information provided for in the Articles 47 and 50 of the Constitution of the Republic of Azerbaijan – in the interests of territorial integrity, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary as well;...”. Thus, restriction of freedom of expression under new legal justifications not provided for in the Constitution became the legal basis.

In practice, condition of freedom of expression is closely linked with condition of media freedom, Because it becomes possible to use any means for the expression of thoughts. This is mainly realised through mass media. Condition of mass media in Azerbaijan in recent years causes serious anxiety. Intolerance against mass media has been increasing. Only in 2007 104 claims were raised against mass media and journalists and the arrest of journalists was demanded in one third of these claims. During the same year 9 journalists were imprisoned with different terms. The amount of financial and moral indemnity raised against mass media and journalists was more than one million manat. Although the number of journalists remaining in prison reduced to 4 in 2008, the number and the volume of the raised claims have not decreased. It shows intolerance against self-expression of people in society. However, this intolerance is being observed mostly in the government officials than in the society. Thus, the vast majority of claims against mass media and journalists were raised by the officials and politicians, who became the target for criticism.
Freedom of expression is also closely connected with freedom of assembly. People can assemble freely and express themselves. However, situation in this field is also not good.  If to look at the state of lawsuits in the country and the substance of decisions of European Court of Human Rights against the government of Azerbaijan, it becomes evident that freedom of assembly and freedom of association are frequently violated and no conditions have been created for the enjoyment of these rights. Since 2005, the open mass demonstrations have almost been prohibited. The most suitable places for demonstrations and meetings were prohibited for the mass activities by the official bodies.
Another platform for self-expression is Internet, which is defined by legislation as mass media. Unfortunately, the situation in this field is also not good. One of the sentences for the arrest of Eynulla Fatullayev, the founder and chief editor of the newspapers “Gündəlik Azərbaycan” and “Realniy Azerbaycan”, who is now in prison, was related to his ideas expressed in the internet forum. Besides, the access to the web pages such as “susmayaq.biz”, “tinsohbeti.com”, which were created as a sign of protest against some political processes, was restricted by administrative means.
In some cases people are pursued for their complaints. There are several facts of persecution and even psychiatric confinement because of claims against local authorities of Nakhchivan Autonomous Republic.

III. ELECTORAL RIGHT

 According to the Article 25 of the International Covenant on Civil and Political Rights adopted by the UN, “Every citizen shall have the right and the opportunity, without any distinctions and unreasonable restrictions, to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors”. Article 56 of the Constitution of the Azerbaijan Republic guarantees electoral right: “Citizens of the Azerbaijan Republic have the right to elect and be elected to state bodies and also to take part in referendum”.
The citizens of the Azerbaijan Republic participate in elections and referendum based on universal, equal and direct suffrage and held by secret and private ballot. The participation of the citizens in elections and referendum is free and voluntary. No one has the right to exert pressure on the citizen of the Azerbaijan Republic with the intention to coerce him/her to participate or not participate in elections or referendum, and no one can prevent the free expression of his/her will.

1.1. The cases for restriction of electoral right

The cases of restriction of electoral right are provided for in the Article 56, 85 and 100 of the Constitution and Article 14 of Election Code. Those recognized incapable by court decision have no right to elect and be elected. Electoral right of citizens could not be restricted except for this case.
There could be different reasons for restriction of citizens’ right to be elected (passive suffrage). For example, incompatibility of responsibilities and etc.
The following persons shall not have a right to be elected:

1. persons imprisoned by court decision;
2. not depending on restoration of pre-trial status and cancellation of criminal record, those condemned for grave crime;
3. Other persons defined by the Code.

The following persons shall not have a right to be elected as a deputy of the Milli Majlis, President and a municipality member, due to positions they occupy:

1. military servants, while they are on military service;
2. judges, while the are in office;
3. state servants, while they are in State service;
4. clergymen, while they are engaged in professional religious activity;
5. citizens of the Republic of Azerbaijan with dual citizenship, until their dual citizenship expires;
6. citizens of the Republic of Azerbaijan who have liabilities before foreign countries, until such liabilities are terminated.

2. Condition of electoral right in practice

After the independence, 3 parliamentary elections, 5 presidential elections, 2 municipal elections and 3 referendums have been held in the Azerbaijan Republic until now. Political parties revealed serious violation of law in all elections and referendums except the presidential elections of 1992, and international and local observers also stated that the vote and election process didn’t conform with international standards.
In fact, the authorities seriously influenced election results by using the administrative resources under their control and made it impossible for the citizens to demonstrate their political will freely. In 2003, the Election Code was amended in line with Azerbaijan’s commitments to the Council of Europe, but the opinion by the Venice Commission on the main point of fraud – on the formaion process of Election Commissions was not taken into consideration and the authorities ensured their control of the formation of Central Election Commission, Constituency Election Commissions and Precinct Election Commissions. Consequently, the results of all elections and referendums are finalised in the "earlier established way".
The Election Code was amended again in June of 2008, the election period was reduced from 120 to 75 days, the campaign period from 60 days to 27 days prior to election day. The opportunities for free campaign in all media funded or established through state budget provided for in the Election Code of 2003 were elminated with the amendments of 2008 and only Public TV was left available for free campaign. Thus, parties were deprived of opportunity to campaign on the most widely broadcasted AZTV and Azerbaijan radio. The opportunities for broad political discussions were limited with these two amendments.
Elections/referendums consist of three phases: the first phase is the collection of voters' signatures and their approval, the second phase is the pre-election campaign and the last phase is the conducting of voting and completion of protocols. Political parties not supported by the authorities, systematically face unfair interference of executive and law enforcement bodies, as well as unlawful acts of election commissions and courts such as concealment of problems. It is no coincidence that hundreds of citizens, whose rights had been violated in the parliamentary elecions of 2005 and had not been restored in local courts, appealed to the European Court of Human Rights. Until now, more than 40 election cases were under court proceedings by the Court. Opposition forces, which had faced total violation of rights in the elections of 2005, boycotted the elections of 2008 insisting that no fundamental changes had been made to legislation, the opinion of the Venice Commission was not taken into consideration and the conditions for fair elections didn’t exist in the country.
The situation remains complicated and intense on the eve of the Referendum scheduled for March 18, 2009. Particularly, the representatives of opposition have been arrested and defamed, and underwent pressure during the collection of voters' signatures. However, neither the CEC, nor the courts have given the legal opinion on these events.

IV. MEDIA FREEDOM

1. Legal guarantee of media freedom

The guarantee of media freedom in Azerbaijan is the Constitution of the Azerbaijan Republic. Article 50 of this instrument adopted on November 12, 1995 by referendum provides for freedom of information and mass media. The first part of the Article stresses that “Everyone is free to look for, acquire, transfer, prepare and distribute information”, according to the second paragraph “Freedom of mass media is guaranteed. State censorship in mass media, including press is prohibited”. Thus, looking for, acquiring, transferring, preparing and distributing information, which are the important part of media’s function, are guaranteed by the Constitution. Moreover, by the formulation of “state censorship in mass media is prohibited”, inadmissibility of state censorship is stated without any exceptions.
This norm of the Constitution is quite liberal and protects media freedom in essence. There are no norms or articles providing for the restriction of media freedom in the Constitution.
Article 71 that refers to protection of rights and liberties of a human being and citizen defines observance and protection of rights and liberties of a human being and citizen specified in the Constitution as responsibility of legislative, executive and legal power and states that no one may restrict implementation of rights and liberties of a human being and citizen. There is only one restrictive norm for all human rights and freedoms, which is provided for in the third paragraph of the Article 71: “Rights and liberties of a human being and citizen may be partially and temporarily restricted only on announcement of war, martial law and state of emergency, and also mobilization, taking into consideration international obligations of the Azerbaijan Republic”. Regulation of media freedom in this way is more liberal than the provisions of the Article 10 of the “European Convention on Human Rights and Fundamental Freedoms”.
Unfortunately, on December 24, 2002, the Milli Meclis adopted “The Constitutional Law on Regulation of Implementation of Human Rights and Freedoms in the Azerbaijan Republic” with the initiative of the President, which considerably restricted rights and freedoms defined by the Constitution.
There is wide range of legislative acts regulating mass media. The main law that regulates mass media is the “Law of the Azerbaijan Republic on Mass Media” adopted in 1999. However, the regulation of TV-radio broadcasting, which is the important part of mass media, was separated from this law in 2001 and began to be implemented on the basis of the “Law of the Azerbaijan Republic on the Television and Radio Broadcasting” adopted in 2002. This direction has become subject to separate, specific regulation after the establishment of Public television and radio in 2004 and adoption of the “Law of the Azerbaijan Republic on Public TV-Radio Broadcasting”. As the main direction of media’s activity is the collection, preparation and dissemination of information, the specific regulation is needed to address the search, the collection and the acquisition of information. The adoption of the “Law of the Azerbaijan Republic on Freedom of Information” in 1998 was directed towards the realization of provisions of the Article 50 of the Constitution. However, because this law had not been functional, the adoption of a new law in the field of acquisition of information was required and the “Law of the Azerbaijan Republic on Right to Obtain Information” of 2005 was designed to fill this void. Another regulation in the field of information is the “Law of the Azerbaijan Republic on Information, Informational support and Protection of Information”. This Law mostly regulates the issues such as formation of information resources, establishment and use of information systems, technology and means for their provision and protection of information.
   Even not directly regulating the activity of mass media, there are several laws related to the issues that journalists and media face in their daily work. These are the “Law on State Secret”, the “Law on Copyright and Neighbouring Right”, the “Law on Advertising”, the Electoral Code, the Criminal Code, the Code On Administrative Delinquencies, the Civil Code and other legislative acts.  

2. Condition of media freedom in practice.

Despite the progress in the field of media freedom in the first years of independence of the country, political censorship had existed untill 1998. After 1998 partial liberalization was observed and in 2001 the condition of the state registration for the establishment of media organizations was repealed, which led to the simplification of the establishment of newspapers and magazines.  As a result, more than 3,500 newspapers and magazines were registred according to statistics. But in reality, the number of daily and weekly newspapers is not more than 30. Although most of newspapers are under the control of the authorities, independent or opposition newspapers also function. Despite the fact that advertising in opposition newspapers is unofficially restricted, they continue their work to be funded by sales and other “sources”.
The establishment and functioning of television and radio is under strict political control. Under the pretext of limitation of national frequency resources, only 5 private TV channels function across the country. These television broadcasters constantly violate the legal norms providing for balanced, objective and impartial translation, which are the main principles of broadcasting, and prefer one-sided broadcast. Thus, artificially created monopoly in the field of TV enables these broadcasters to benefit from advertising, which amounts to approximately 200 mln manats in a year. This opportunity is not given to independent persons who want to be a broadcaster. Although foreign radio stations (Liberty, BBC Azerbaijan service and Voice of America) that had an important role in ensurance of pluralism in Azerbaijan, had functioned untill December 2008, they were not allowed to broadcast on local frequencies in Azerbaijan as of January 1, 2009. Unfortunately, this decision was presented as the requirement of the Law of 2002, Article 14 of which considers it possible for the foreign broadcaster to function in Azerbaijan.  
Azerbaijan’s National Television and Radio Council that provides official state regulation, has no policy of licensing, this policy is indefinite.
Although partial freedom exist in the field of Internet, the main provider remains under state control, which creates conditions for an artificial increase in prices. Thus, the citizen of Azerbaijan must pay 10-20 times more than russian, turkish or european when using the Internet. This in turn, creates artificial obstacles to the use of the Internet.
With regard to the condition of professional journalism, it could be regarded as quite risky occupation. Thus, Elmar Huseynov was killed, tens of journalists were beaten and kidnapped, were subject to physical and moral persecutions and arrested for their activities as journalist in recent years. Hundreds of media organizations and journalists were drawn into lawsuits, claimants demanded from them compensations in the amount of millions of manats, and the courts made decisions on them.
It is interesting that the official statistics are quite high regarding the fight against general crime and aproximately 95-96% of crimes has been detected immediately or later. However, the percentage of investigation and detection of crimes against journalists is about 10-15. This in turn, leads to assumptions that the forces, which control the political power, are behind the violence against the journalists.

The situation of media freedom has been worsening in the country in the years of 2007-2008. In the survey "MEDIA Sustainability INDEX" held in 2007 and 2008 by IREX in 21 European Countries indicates the worsening of the situation of media freedom in Azerbaijan.

V. OTHER FUNDAMENTAL RIGHTS AND FREEDOMS

Pursuant to the Article 58 of the Constitution of the Azerbaijan Republic, every person shall have the right to found any union, political party, trade union and any other public union, or to join an already existing union.
There is appropriate legislation on political parties, trade unions and non-governmental organizations, as well as other statutory acts, adopted for the purpose of ensuring their legal activities. However, treatment of political forces, public unions and trade unions in practice is much more different from legislation. These differences also existed before, but in recent years, including 2008, these differences have become deeper.

1.2. Association in political parties

The membership in ruling party is encouraged and sometimes demanded in public bodies, organizations funded by state budget and state owned economic entities. Contrarily, the members of opposition parties are being persecuted; the most active ones are dismissed. Conditions are different for the activities of political parties. The ruling party and its satellite parties have central and regional headquarters. The opposition parties have been deprived of their headquarters or moved to suburban areas. During the election campaigns, many obstacles are put before the members of the opposition parties, which prevent them from active political contest. In recent years, the opposition parties have become increasingly weakened, facing the danger of disappearing from political scene. Consequently, unequal opportunities and resources exist in elections held on the every level.

Only traditional trade unions function in the country. These trade unions cover only 20-25% of workers in labour market. There are almost no trade unions in private sector, except for public sector. Any attempt to establish trade unions in foreign oil companies are met with serious persecutions.

The relation of the authorities to nongovernmental organizations has considerably changed in recent years. Previous hostile relation has risen to the level of cooperation and partnership afterwards. A specialized government agency has been established under the President for the support of nongovernmental organizations. Most members of this collective body are the representatives of civil society. The separate article providing for the financial assistance to nongovernmental organizations has been included in the state budget in the last two years. Unlike the political parties, the relation to NGOs is neutral. However, there are exceptions for some NGOs that have an independent viewpoint with regard to human rights and especially elections. The repeal of the state registration of the Elections Monitoring Centre on the eve of the presidential elections could be viewed as an example. The government representatives accuse such public organizations of turning into political ones.

In reality, the Law on Freedom of Assembly of 1998 had been playing the role of mechanism that prevents the realisation of this fundamental right. As a result of lasting efforts of local and international organizations, including the Venice Commission of the Council of Europe, the OSCE and local NGOs the Law on Amendments to the Law on Freedom of Assembly came into force on May 30, 2008. Amendments ensure the right to effective use of means for legal protection. When the realization of right to conducting meeting is prohibited or restricted, the courts should consider the appeal and make decision before the date of the meeting. However, the positive changes made to the legislation were not reflected in practice.
 According to the Law, the place of convening an assembly is again determined by bodies of executive power. They abuse the duties imposed on them and use this provision (the determination of appropriate places for conduct of a meeting) as legal means. As before, the places that they determine for conduct of a meeting are also not regarded as suitable after the amendments.
Relatively positive changes made to the legislation have not eliminated the shortcomings existing in practice. Although appeals and notifications for the conduct of such meetings were presented to relevant bodies of executive power, after the amendments, there were no sanctioned meetings held in the country until August 1, 2008. For example, in answer to Musavat Party’s appeal to conduct picket in front of the Baku City Executive Authority on July 11, 2008, the authority stated that the conduct of picket was prohibited. The reason is shown as contradiction of picket with the legislation. The article of the law according to which the picket was regarded as unlawful was not indicated in response. Pursuant to the paragraph VIII of the Article 9 of the Law, following are the requirements for the conduct of picket: “The number of picketers shall not be more than 50 persons and they shall not be located closer than 10 meters to the entrance of a picketed object, shall not make obstacles for entry and exit into the picketed object and shall not use amplifiers above 10 watt.”
The requirements for the conduct of picket show that picket could be held in front of any public body by following these requirements. However, state authorities illegally restrict the right to conducting meeting before and after the amendments to the law.
As evident, the amendments to legislation didn’t bring positive results in practice. Relevant bodies of executive power continue to prohibit the conduct of meeting as before and in this case they refer not to existing legislation but to their personal and illegal views.

Article 54 of the Constitution of the Azerbaijan Republic ensures the right of every citizen to take part in political life of society and state. Article 55 of the Constitution provides for the right to take part in governing the state, Article 56 for the electoral right and Article 57 for the right to appeal.
These articles aimed at provision of political rights conform to international standards. However, there are still serious impediments to the free exercise of political rights by citizens. Many cases exist when the passive suffrage of candidates of political opposition and active suffrage of their members were violated during elections. There are unequal conditions for the activities of agitation groups established with regard to the Referendum on Amendments to the Constitution to be held on March 18, 2009. Although any conditions and administrative resources are provided for the agitation groups that support the amendments, the members of the opposite groups are persecuted.

The report is prepared within the project
"European integration problems of Azerbaijan
in the field of democracy at public discussions" funded by Marshall Fund
 

Project coordinator and report designer is Vahid Gazi.
The report developers are human rights defender Sahib Mammadov
and lawyer Alasgar Mammadly.