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The functioning of democratic institutions in Azerbaijan

Doc. 13801: compendium of written amendments | Doc. 13801 | 23/06/2015 | Revised version

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ADraft Resolution

1The Parliamentary Assembly acknowledges the complex geopolitical context of Azerbaijan as it tries to balance its relations with the European Union, Turkey, Iran and the other Caspian Sea neighbours, the Russian Federation and the United States. Azerbaijan has managed to maintain an independent and diversified foreign policy position, in particular due to its sizable energy resources and strategic location on the Caspian Sea. The Assembly is fully aware of the occupation by Armenia of Nagorno-Karabakh and seven other provinces of Azerbaijan, which dominates to a large extent the Azerbaijani foreign policy agenda.

22 June 2015

Tabled by Mr Paul FLYNN, Mr Andreas GROSS, Mr Michele NICOLETTI, Mr Pieter OMTZIGT, Lord John E. TOMLINSON, Mr Pierre-Yves LE BORGN', Ms Mailis REPS, Mr René ROUQUET

If adopted, amendments 2, 3, 15, 16 falls.

Votes: 62 in favor 102 against 3 abstentions

In the draft resolution, delete paragraph 1.

22 June 2015

Tabled by Ms Hermine NAGHDALYAN, Ms Naira ZOHRABYAN, Mr Levon ZOURABIAN, Mr Vahan BABAYAN, Mr Mher SHAHGELDYAN, Ms Arpine HOVHANNISYAN, Mr Armen RUSTAMYAN

If adopted, amendments 15, 2, 16 falls. Falls if amendment 13 is adopted.

Votes: 78 in favor 83 against 7 abstentions

In the draft resolution, paragraph 1, delete the third sentence.

22 June 2015

Tabled by Mr Pieter OMTZIGT, Mr Frank SCHWABE, Mr Luc RECORDON, Ms Mailis REPS, Mr Paul FLYNN

Falls if amendments 13, 3 are adopted.

In the draft resolution, paragraph 1, delete the last sentence.

22 June 2015

Tabled by Mr Pieter OMTZIGT, Mr Frank SCHWABE, Mr Paul FLYNN, Mr Hans FRANKEN, Mr René ROUQUET

If adopted, amendment 2 falls. Falls if amendments 13, 3 are adopted.

In the draft resolution, paragraph 1, in the last sentence, replace the words "occupation by Armenia of Nagorno-Karabakh and seven other provinces of Azerbaijan, which dominates" with the following words: "consequences of the Nagorno-Karabakh conflict, which dominate".

22 June 2015

Tabled by Mr Pieter OMTZIGT, Ms Mailis REPS, Mr Bernard PASQUIER, Mr Andreas GROSS, Mr René ROUQUET

Falls if amendments 13, 3, 16 are adopted.

Votes: 85 in favor 75 against 8 abstentions

In the draft resolution, paragraph 1, third sentence, replace the words: "of the occupation by Armenia of Nagorno-Karabakh and seven other provinces of Azerbaijan," with the following words: "of the Nagorno-Karabakh conflict,"

Explanatory note

The proposed reference on Nagorno-Karabakh conflict has been taken from the Assembly's Opinion 222(2000) on "Azerbaidjan's application for membership of the Council of Europe" which also recommended the invitation to Azerbaidjan to become a member of the Council of Europe.

2The Assembly takes note of the authorities’ concerns over the security and the stability of the country due to alleged threats from abroad, in particular the alleged risks to Azerbaijan from the situation in Ukraine. In this context, Azerbaijan is a particularly important country with its energy resources playing a pivotal role, particularly as the European Union is seeking to diversify away from Russian energy supplies, which has considerably strengthened Baku's strategic position in recent months.

22 June 2015

Tabled by Mr Volodymyr ARIEV, Mr Aleksandar NIKOLOSKI, Mr Georgii LOGVYNSKYI, Mr Boryslav BEREZA, Mr Andrii LOPUSHANSKYI, Mr Viktor VOVK

Votes: 124 in favor 7 against 26 abstentions

In the draft resolution, paragraph 2, first sentence, delete the words: ", in particular the alleged risks to Azerbaijan from the situation in Ukraine".

In amendment 1, replace the words "delete the words: ', in particular the alleged risks to Azerbaijan from the situation in Ukraine'" with the following words: "replace the words ', in particular the alleged risks to Azerbaijan from the situation in Ukraine' with the following words: ', in particular the alleged risks to Azerbaijan from the situation in some other European countries.'"

3The Assembly notes that the Azerbaijani institutional structure grants particularly strong powers to the President of the Republic and the executive. In addition to the limited competences of the Milli Mejlis under the Constitution, it draws attention to the fact that not all opposition forces are represented in parliament, which is detrimental to true political dialogue and effective parliamentary oversight. This is mainly due to the electoral system, which is a one-round majoritarian system, similar to that of the United Kingdom, which favours both the ruling party and independent candidates, and, moreover, as the opposition in Azerbaijan is very divided and opposition candidates are often competing against each other, they thus weaken each other. The Assembly is therefore convinced that it is in the best interests of the democratic process and the ruling party itself to confront opposition parties in a representative body, and calls on the authorities to develop an environment favourable to political pluralism and increased parliamentary control over the executive to guarantee checks and balances.
4In November 2015, Azerbaijan will hold parliamentary elections. The Assembly regrets that some of the most important recommendations of the European Commission for Democracy through Law (Venice Commission), such as those regarding the composition of the electoral commissions and candidate registration, have not been addressed. It recalls that the authorities in charge of electoral administration should function in a transparent manner and maintain impartiality and independence. Effective remedies are essential to ensure trust in the electoral process. Whereas during the 2013 presidential election in Azerbaijan, the election observation delegations of the Parliamentary Assembly of the Council of Europe and the European Parliament observed “a free, fair and transparent electoral process overall around election day, improvements being still desirable with regard to the electoral framework”, the Assembly, however, calls on the Azerbaijani authorities to take the necessary measures to avoid the shortcomings highlighted during previous elections, such as the adoption of court decisions that were not fully reasoned and had no legal basis and the lack of true judicial supervision.

In the draft resolution, at the end of paragraph 4, add the following words: "The Assembly recognises the important contribution that it has made in promoting democracy in Azerbaijan through election observation missions. The Assembly believes that it is as important as ever to continue carrying out the monitoring function. In the event of inability of other observation teams to participate, the Assembly should consider increasing the Council of Europe's contribution for the forthcoming parliamentary elections to ensure the effective scrutiny of the election process."

5The Assembly recalls that the independence of the judiciary is one of the basic preconditions of the separation of powers and of the system of checks and balances. It welcomes the recent legal amendments with regard to the judiciary, and in particular the new rule stipulating that judges must leave judicial tenure at the age of 65, and the removal of the former regulation allowing the extension of judicial tenure for some judges up to the age of 70. It nevertheless encourages the authorities to further ensure full independence of the judiciary and in particular prevent influence and interference by the executive branch. The Judicial Legal Council should be composed either exclusively of judges, or of at least a substantial majority of judges elected by their peers. The role of the Judicial Legal Council in the appointment of all categories of judges and court chairpersons should be further increased. Similarly, while acknowledging the recent legal amendments reducing the length of the probationary period for judges from five to three years, the Assembly recalls that the Venice Commission has constantly opposed probationary periods for judges and only tolerates them under strict conditions.

In the draft resolution, paragraph 5, second sentence, replace the words "judges must leave judicial tenure at the age of 65," with the following words: "judges of the Supreme Court must leave judicial tenure at the age of 68 and judges of all other courts at the age of 66,"

22 June 2015

Tabled by Mr Samad SEYIDOV, Mr Rafael HUSEYNOV, Mr Rovshan RZAYEV, Ms Sahiba GAFAROVA, Mr Sabir HAJIYEV, Ms Ganira PASHAYEVA

Votes: 23 in favor 131 against 12 abstentions

In the draft resolution, paragraph 5, third sentence, delete the words: "and in particular prevent influence and interference by the executive branch".

In the draft resolution, paragraph 5, replace the fifth sentence with the following sentence: "It is recommended that the role of the Judicial Legal Council in the appointment of all categories of judges and court chairpersons be further increased".

6Despite these efforts, the lack of independence of the judiciary remains a concern in Azerbaijan, where the executive branch is alleged to continue to exert undue influence. Dubiously motivated criminal prosecutions and disproportionate sentences remain a concern. Fairness of trials, equality of arms and respect for the presumption of innocence are other major concerns. The Assembly is concerned about the use of pre-trial detention as a means of punishing individuals for criticising the government, as stated by the Court in the judgment in the case of Ilgar Mammadov v. Azerbaijan, in which it found a violation of Article 18 of the European Convention on Human Rights (ETS No. 5, “the Convention”).

22 June 2015

Tabled by Mr Samad SEYIDOV, Mr Rafael HUSEYNOV, Mr Rovshan RZAYEV, Ms Sahiba GAFAROVA, Mr Sabir HAJIYEV, Ms Ganira PASHAYEVA

Votes: 20 in favor 135 against 11 abstentions

In the draft resolution, paragraph 6, first sentence, delete the words: ", where the executive branch is alleged to continue to exert undue influence".

7A slight decrease in the levels of corruption has been noted as a result of several important reforms and national and international state programmes. The Assembly welcomes the reduction of the level of corruption, especially in daily services provided by the network of public service halls known as ASAN centres. While supporting the country's efforts to promote transparency and fight corruption, terrorism financing and money laundering, the Assembly urges the authorities to create an adequate balance between the rights of association and freedom of expression, as guaranteed by the European Convention on Human Rights, and the State's legitimate fight against organised crime.

In the draft resolution, paragraph 7, second sentence, replace the words "especially in daily services" with the following words: "especially due to daily services".

8In the light of the above, the Assembly calls on the authorities to review the law on non-governmental organisations (NGOs) with a view to addressing the concerns formulated by the Venice Commission and creating an environment conducive to the work of civil society. It is indeed worrying that the shortcomings in the NGO legislation have negatively affected NGOs’ ability to operate. The strict control of NGOs by State authorities is likely to interfere with the right to freedom of association guaranteed by Article 11 of the Convention. In this regard, the Assembly condemns the crackdown on human rights in Azerbaijan where working conditions for NGOs and human rights defenders have significantly deteriorated and prominent and recognised human rights defenders, civil society activists and journalists are behind bars. At the same time, the Assembly takes note of the adoption of the Law on Public Participation implementing public control over central and local executive powers and local self-governing bodies, ensuring the participation of civil society institutions in decision-making processes.

22 June 2015

Tabled by Mr Samad SEYIDOV, Mr Rafael HUSEYNOV, Mr Rovshan RZAYEV, Ms Sahiba GAFAROVA, Mr Sabir HAJIYEV, Ms Ganira PASHAYEVA

If adopted, amendment 5 falls.

Votes: 18 in favor 140 against 9 abstentions

In the draft resolution, paragraph 8, delete the fourth sentence.

22 June 2015

Tabled by Mr Andreas GROSS, Mr Gvozden Srećko FLEGO, Mr Frithjof SCHMIDT, Mr Edgar MAYER, Mr Jordi XUCLÀ, Mr Tiny KOX

Falls if amendment 24 is adopted.

Votes: 125 in favor 33 against 9 abstentions

In the draft resolution, paragraph 8, replace the words "prominent and recognised human rights defenders, civil society activists and journalists are behind bars" with the following words : "some prominent and recognised human rights defenders, civil society activists and journalists are behind bars. The Assembly calls on the Azerbaijani authorities to ensure objective trials of the cases of the detained people."

9The Assembly is deeply concerned about the increasing number of reprisals against independent media and advocates of freedom of expression in Azerbaijan.

22 June 2015

Tabled by Mr Samad SEYIDOV, Mr Rafael HUSEYNOV, Mr Rovshan RZAYEV, Ms Sahiba GAFAROVA, Mr Sabir HAJIYEV, Ms Ganira PASHAYEVA

If adopted, amendment 17 falls.

Votes: 20 in favor 137 against 6 abstentions

In the draft resolution, delete paragraph 9.

22 June 2015

Tabled by Mr Pieter OMTZIGT, Ms Gabriela HEINRICH, Ms Mailis REPS, Mr Paul FLYNN, Mr Hans FRANKEN

Falls if amendment 25 is adopted.

Votes: 99 in favor 57 against 12 abstentions

In the draft resolution, at the end of paragraph 9, add the following words: "In this regard, it deplores the arbitrary application of criminal legislation to limit freedom of expression, in particular the reported recent use of different criminal laws against journalists and bloggers, and recommends taking necessary measures to ensure a genuinely independent and impartial review by the judiciary of cases involving journalists and others expressing critical voices."

10The Assembly is alarmed by reports by human rights defenders and international NGOs, confirmed by the Council of Europe Commissioner for Human Rights, about the intensification of the practice of the criminal prosecution of NGO leaders, journalists, their lawyers and others who express critical opinions, based on the use of alleged charges in relation to their work. The Assembly calls on the authorities to end the systemic harassment of those critical of the government. The Assembly welcomes the resumption of the activities of a Joint Working Group on Human Rights Issues, composed of representatives of civil society, prominent human rights activists, Council of Europe representatives, members of parliament and officials of the Presidential Administration, following the agreement between the Council of Europe Secretary General and the President of the Republic of Azerbaijan in August 2014.

In the draft resolution, paragraph 10, after the word "work", insert the following words: "The Assembly shares the concerns voiced by the Commissioner for Human Rights on the judicial system."

22 June 2015

Tabled by Mr Samad SEYIDOV, Mr Rafael HUSEYNOV, Mr Rovshan RZAYEV, Ms Sahiba GAFAROVA, Mr Sabir HAJIYEV, Ms Ganira PASHAYEVA

If adopted, amendments 7, 14 falls.

In the draft resolution, paragraph 10, delete the second sentence.

22 June 2015

Tabled by Mr Tiny KOX, Mr Jacob LUND, Mr Pieter OMTZIGT, Ms Mailis REPS, Ms Lise CHRISTOFFERSEN, Ms Ingjerd SCHOU, Mr Pierre-Yves LE BORGN', Mr Jordi XUCLÀ, Mr Luc RECORDON, Mr Jonas GUNNARSSON, Ms Carina OHLSSON

If adopted, amendment 7 falls. Falls if amendment 26 is adopted.

Votes: 115 in favor 39 against 12 abstentions

In the draft resolution, paragraph 10, replace the words ". The Assembly calls on authorities to end the systemic harassment of those critical of the government" with the following words: ", especially human rights lawyer Intigam Aliyev; head of an election monitoring group Anar Mammadov; veteran activist Leyla Yunus and her husband Arif Yunus; founder of the "Sports for Rights" campaign Rasul Jafarov and journalists Khadija Ismayilova and Rauf Mirgadirov. The Assembly calls on the authorities to end the systemic harassment of those critical of the government and to release those wrongfully detained."

Explanatory note

Recent years have brought an intensified crackdown on fundamental human rights in Azerbaijan that has shocked even seasoned observers. PACE should make public the names of those who have visited the Council of Europe often in the past years and should co-operate extensively with the European Court of Human Rights, the Commissioner, the Secretary General, and PACE itself.

In the draft resolution, paragraph 10, after the word "government", insert the following words: "for encouraging and maintaining the advocacy of dissent and pluralism in society."

22 June 2015

Tabled by Mr Samad SEYIDOV, Mr Rafael HUSEYNOV, Mr Rovshan RZAYEV, Ms Sahiba GAFAROVA, Mr Sabir HAJIYEV, Ms Ganira PASHAYEVA

Votes: 123 in favor 23 against 19 abstentions

In the draft resolution, paragraph 10, third sentence, replace the words "members of parliament and officials of the Presidential Administration" with the words: "and representatives of the authorities".

11Taking these concerns and developments into account, the Assembly calls on the Azerbaijani authorities to:
11.1fully implement the judgments of the European Court of Human Rights, in conformity with the resolutions of the Committee of Ministers;

22 June 2015

Tabled by Mr Pieter OMTZIGT, Mr Frank SCHWABE, Ms Mailis REPS, Mr Paul FLYNN, Mr Hans FRANKEN

Votes: 117 in favor 35 against 9 abstentions

In the draft resolution, before paragraph 11.1, insert the following paragraph:

"put an end to systemic repression of human rights defenders, the media and those critical of the government, including politically motivated prosecutions, allow for effective judicial review of such attempts, and ensure that the overall climate can become conducive to political pluralism ahead of the forthcoming elections in November 2015;"

11.2with regard to checks and balances, reinforce the actual application of the constitutionally guaranteed principle of the separation of powers, and in particular:
11.2.1strengthen parliamentary control over the executive;
11.2.2ensure full independence of the judiciary, in particular vis-à-vis the executive;

22 June 2015

Tabled by Mr Samad SEYIDOV, Mr Rafael HUSEYNOV, Mr Rovshan RZAYEV, Ms Sahiba GAFAROVA, Mr Sabir HAJIYEV, Ms Ganira PASHAYEVA

Votes: 24 in favor 132 against 9 abstentions

In the draft resolution, paragraph 11.2.2, delete the words: "in particular vis-à-vis the executive".

11.3with regard to elections:
11.3.1speed up the implementation of the outstanding recommendations of the Venice Commission and of the Committee of Ministers in its decisions on the execution of the judgments by the European Court of Human Rights in the Namat Aliyev group, in time for the forthcoming elections, and in particular:
11.3.1.1take the necessary measures to resolve the problems revealed by the Court’s judgments as regards the independence, transparency and legal quality of procedures before the electoral commissions;
11.3.1.2further improve the system of control of the conformity of the elections in order to prevent any arbitrariness and allow for effective judicial supervision over the procedures;
11.3.1.3continue the reforms of the composition of the electoral administration and candidates’ and voters’ registration, based on the recommendations of the Venice Commission and of the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE/ODIHR);

In the draft resolution, after paragraph 11.3.1.3, insert the following paragraph:

"fully cooperate with ODIHR: the Assembly will decide, in the light of this cooperation, whether to send an observation mission for the forthcoming election;"

11.3.1.4finalise the ongoing reforms concerning party financing and in particular the financing of election campaigns, in line with recommendations the Group of States against Corruption (GRECO);
11.3.1.5ensure that candidates are required to notify executive authorities only of their intent to hold a gathering;
11.3.1.6make use of the Venice Commission’s expertise in this field;

In the draft resolution, after paragraph 11.3.1.6, insert the following paragraph:

"notice the need for clear assignment of responsibilities and also the possibility of the problematic practice of registration on electoral registers on the election day itself;"

11.3.2encourage a climate favourable to pluralism, free campaigning and freedom of the media for the November 2015 elections;
11.4with regard to the judiciary:
11.4.1ensure independence of the judiciary and judges and prevent and refrain from exerting any pressure on them;

22 June 2015

Tabled by Mr Samad SEYIDOV, Mr Rafael HUSEYNOV, Mr Rovshan RZAYEV, Ms Sahiba GAFAROVA, Mr Sabir HAJIYEV, Ms Ganira PASHAYEVA

Votes: 17 in favor 141 against 7 abstentions

In the draft resolution, delete paragraph 11.4.1.

11.4.2further amend the legislation on the composition and powers of the Judicial Legal Council and the appointment of judges with a view to decreasing the influence of the executive, and in particular:
11.4.2.1further ensuring that the Judicial Legal Council is composed either exclusively of judges or of a substantial majority of judges elected by their peers, giving more powers to the General Assembly of Judges;
11.4.2.2consider removing the probation period for judges, or at least further decreasing its length based on objective pre-established criteria;

In the draft resolution, paragraph 11.4.2.2, delete the following words: "based on objective pre-established criteria".

11.4.3take the necessary measures to avoid criminal proceedings being instituted without a legitimate basis and to ensure effective judicial review of such attempts by the Prosecutor’s Office, as well to prevent violations of the presumption of innocence by the law-enforcement authorities and members of the government;
11.4.4take all necessary measures to guarantee due process and impartiality of the courts, in compliance with Article 6 of the European Convention on Human Rights;
11.4.5take the necessary measures to ensure that pre-trial detention is not imposed without considering whether it is necessary and proportionate, or whether less intrusive measures could be applied;
11.4.6use all available legal tools to release those prisoners whose detention gives rise to justified doubts and concerns;

In the draft resolution, delete paragraph 11.4.6.

11.4.7refrain from exerting any pressure on lawyers defending NGO representatives and journalists;

In the draft resolution, after paragraph 11.4.7, insert the following paragraph:

"ensure that the function of the Ombudsman is legally independent and provided with a professional immunity function and also has the competence to review issues relating to human rights and to the media;"

In amendment 9, delete the following words: "the function of".

11.5with regard to freedom of expression:
11.5.1create proper conditions for journalists to carry out their work and refrain from exerting any kind of pressure on them;
11.5.2stop the reprisal of journalists and others who express critical opinions;

In the draft resolution, delete paragraph 11.5.2.

11.5.3refrain from limiting freedom of expression and freedom of the media in both legislation and in practice;
11.5.4speed up efforts towards the decriminalisation of defamation, in co-operation with the Venice Commission, to ensure that defamation cannot be associated with excessively high criminal sanctions, including imprisonment; and, in the meantime, use the existing legislation with caution to avoid prison sentences for such offences;

In the draft resolution, after paragraph 11.5.4, insert the following paragraph:

"release all political prisoners, including those who have cooperated with the Parliamentary Assembly;"

11.6with regard to freedom of association:
11.6.1review the law on NGOs with a view to addressing the concerns formulated by the Venice Commission;
11.6.2create an environment conducive for NGOs to carry out their legitimate activities including those expressing critical opinions.
12The Assembly resolves to closely follow the situation in Azerbaijan and to take stock of the progress achieved in the implementation of this and previous resolutions.

In the draft resolution, insert the following paragraphs before paragraph 12: "with regard to international cooperation: - reverse the authority's decision on the closure of the OSCE office in Baku and cooperate fully with this organization."