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Azerbaijan’s Chairmanship of the Council of Europe: what follow-up on respect for human rights?

Doc. 14397: collection of written amendments | Doc. 14397 | 10/10/2017 | Revised version

Caption: AdoptedRejectedWithdrawnNo electronic votes

ADraft Resolution

1The Parliamentary Assembly has already adopted several resolutions on the situation in Azerbaijan since the Azerbaijani Chairmanship of the Committee of Ministers of the Council of Europe, which took place between May and November 2014, in particular Resolution 2062 (2015) on the functioning of democratic institutions in Azerbaijan, in which it assessed how those institutions operated and expressed its concerns regarding the lack of independence of the judiciary, the violations of the right to freedom of expression and association and the reprisals against independent media, human rights defenders, journalists and other persons expressing criticism of the authorities. It points out that developments in this country are under constant examination by its Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee).
2The Assembly also refers to its Resolution 2096 (2016) “How can inappropriate restrictions on NGO activities in Europe be prevented?” and Resolution 2095 (2016) “Strengthening the protection and role of human rights defenders in Council of Europe member States”.
3The Assembly takes note that in the course of 2014 several individuals, including human rights defenders and other activists who had co-operated with the Council of Europe and the Assembly, were arrested and then given prison sentences. The Assembly welcomes the fact that in the course of 2016 most of them were released; however, some of these releases continue to be subject to conditions. The Assembly remains concerned about the reported prosecution and detention of leaders of non-governmental organisations, human rights defenders, political activists, journalists, bloggers and lawyers, on the basis of alleged charges relating to their work.

In the draft resolution, at the beginning of paragraph 3, replace the words "The Assembly takes note that in the course of 2014 several" with the following words: "The Assembly regrets that the 2014 Azerbaijani Chairmanship coincided with an unprecedented crackdown on human rights in Azerbaijan where dozens of"

Explanatory note

During 2014, the authorities rounded up the country's best-known civil society leaders and journalists, imprisoning them on politically motivated charges. Charges against those wrongfully imprisoned are not related to their work but the government uses a range of politically motivated charges to incarcerate its critics.

In the draft resolution, at the end of paragraph 3, replace the words "on the basis of alleged charges relating to their work" with the following words: "allegedly in retaliation for their work."

Explanatory note

During 2014, the authorities rounded up the country's best-known civil society leaders and journalists, imprisoning them on politically motivated charges. Charges against those wrongfully imprisoned are not related to their work but the government uses a range of politically motivated charges to incarcerate its critics.

4The Assembly notes that the number of persons currently in detention, allegedly for having voiced criticism of the authorities, varies considerably depending on the sources. It encourages the competent authorities to review the individual cases, as far as possible, to release wrongfully imprisoned persons, and to consider, where appropriate, the use of non-custodial sentences or alternative measures to pretrial detention.

In the draft resolution, paragraph 4, in the second sentence, replace the words: "as far as possible, to release wrongfully imprisoned persons, and to" with the following words: "to release all wrongfully imprisoned human rights defenders, journalists, civic and political activists. The authorities should also".

Explanatory note

Among those wrongfully imprisoned are human rights defenders, journalists, civic and political activists. Overwhelming use of pre-trial detention is a separate persistent problem in Azerbaijan and should also be addressed.

10 October 2017

Tabled by the Committee on Legal Affairs and Human Rights

In amendment 3, delete the words "all wrongfully imprisoned"; and after the word "activists", insert the following words: "who were imprisoned on politically motivated grounds".

5The Assembly is concerned about the increasing number of allegations of violations of certain human rights and fundamental freedoms, such as those guaranteed by the European Convention on Human Rights (ETS No. 5, “the Convention”) in Azerbaijan. It is particularly worried by the cases established by the European Court of Human Rights (“the Court”) of torture and inhuman or degrading treatment during arrest, in police custody and in prisons, and the lack of effective investigations in this regard (violations of Article 3 on the substantial and procedural aspects), violations of the right to a fair trial (violations of Article 6), especially in criminal cases, and violations of the right to freedom of expression, association and assembly (violations of Articles 10 and 11).

10 October 2017

Tabled by Mr Frank SCHWABE, Ms Doris BARNETT, Ms Ute FINCKH-KRÄMER, Ms Gabriela HEINRICH, Mr Boriss CILEVIČS

Votes: 99 in favor 30 against 14 abstentions

In the draft resolution, paragraph 5, first sentence, replace the words "of allegations of violations of certain human rights and fundamental freedoms," with the following words: "of reports of violations of fundamental human rights and freedoms,".

Explanatory note

The resolution should refrain from language that casts serious doubt on the validity of information about human rights violations. Terms like "certain rights" and "allegations"; in reference to credible information from leading international and national NGOs implies that the Assembly does not take this data on human rights violations seriously.

6The Assembly reiterates that the prohibition of torture and inhuman or degrading treatment guaranteed by Article 3 of the Convention is a non-derogable right and it strongly condemns any violation of this right. It calls on the authorities to:
6.1carry out effective investigations into all violations of this right to ensure that the perpetrators are punished;

10 October 2017

Tabled by Mr Frank SCHWABE, Ms Doris BARNETT, Ms Ute FINCKH-KRÄMER, Ms Gabriela HEINRICH, Mr Boriss CILEVIČS

Votes: 104 in favor 33 against 5 abstentions

In the draft resolution, replace paragraph 6.1 with the following paragraph:

"carry out prompt, effective, and impartial investigation of all complaints on the use of torture and inhuman and degrading treatment, ensure that the perpetrators are brought to justice, and that impunity does not prevail;"

Explanatory note

The language of the resolution must be clear and avoid misinterpretation. "Prompt, effective, and impartial investigation" is standard terminology. All complaints of the use of torture should be investigated, not just confirmed violations. Reference to impunity is important.

6.2take all the necessary measures to prevent further violations of this type;
6.3step up its co-operation with the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and request publication of the reports of its visits.
7The Assembly considers that the judicial system in Azerbaijan must be independent and impartial. It reiterates that an independent judicial system is a precondition for a criminal justice system which complies with European standards. The Assembly is concerned about allegations of a lack of independence of the judiciary vis-à-vis the executive and the arbitrary application of criminal law. It is concerned about allegations of the excessive use of pretrial detention by judges at the request of prosecutors, without a detailed examination of the grounds which could justify such detention, and the problems in properly ensuring the rights of the defence. Nonetheless, it notes that the authorities have begun to take action to address this situation. It notes that the Azerbaijani authorities have initiated reforms of their judicial system following the relevant recommendations of the Council of Europe, in particular those of the Group of States against Corruption (GRECO) and the European Commission for the Efficiency of Justice (CEPEJ). Nevertheless, it finds that the concerns over the functioning of justice expressed in its Resolution 2062 (2015) remain valid. Furthermore, the constitutional amendments approved following the referendum of 26 September 2016 could entail the risk of increasing the power of the executive in relation to the legislative and judiciary.

10 October 2017

Tabled by Mr Frank SCHWABE, Ms Doris BARNETT, Ms Ute FINCKH-KRÄMER, Ms Gabriela HEINRICH, Mr Boriss CILEVIČS

Votes: 103 in favor 34 against 7 abstentions

In the draft resolution, replace paragraph 7 with the following paragraph:

"The Assembly insists that the judicial system in Azerbaijan must be independent and impartial, as in all Council of Europe member states. It reiterates that an independent judicial system is a precondition for a criminal justice system which complies with European standards. The Assembly is concerned about allegations of a systematic lack of independence of the judiciary vis-à-vis the executive and the arbitrary application of criminal law. It is concerned about allegations of the excessive use of pretrial detention by judges at the request of prosecutors, without a detailed examination of the grounds which could justify such detention, and the problems in properly ensuring the rights of the defence. It notes that the Azerbaijani authorities have announced the start of reforms to their judicial system following the relevant recommendations of the Council of Europe, in particular those of the Group of States against Corruption (GRECO) and the European Commission for the Efficiency of Justice (CEPEJ). Nevertheless, it finds that the concerns over the functioning of justice expressed in its Resolution 2062 (2015) remain valid. Furthermore, the constitutional amendments approved following the referendum of 26 September 2016 entail the risk of increasing the power of the executive in relation to the legislative and judiciary."

Explanatory note

The language of the resolution must be clear as regards the Assembly's assessment of the state of the judiciary. Reports from the ground clearly indicate that "judicial reform" has been a clear formality and have not made any impact on the ground. Therefore, speaking about authorities' "actions to address the situation" would be misleading.

8The Assembly calls on the Azerbaijani authorities to guarantee the full independence of judges vis-à-vis the executive and to continue the reforms to establish a judicial system which complies with the requirements of Article 6 of the European Convention on Human Rights and the other standards of the Council of Europe.

10 October 2017

Tabled by Mr Frank SCHWABE, Ms Doris BARNETT, Ms Ute FINCKH-KRÄMER, Ms Gabriela HEINRICH, Mr Boriss CILEVIČS

Votes: 101 in favor 30 against 12 abstentions

In the draft resolution, paragraph 8, replace the words "continue the reforms" with the following words: "begin real and meaningful reforms".

Explanatory note

Reports from the ground clearly indicate that "judicial reform" has been a clear formality and have not made any impact on the ground. Therefore, speaking about "continuation of the reform" would be misleading.

9The Assembly notes with great concern reports linking the Azerbaijani Government to a large-scale money laundering scheme occurring in the years 2012 to 2014, used inter alia to influence the work of members of the Assembly as regards the human rights situation in Azerbaijan. The Assembly urges the Azerbaijani authorities to start an independent and impartial inquiry into these allegations without delay and furthermore, co-operate fully with the competent international authorities and bodies on this issue.
10The Assembly welcomes the Presidential Executive Order of 10 February 2017 on improving the functioning of the prison system, the humanisation of criminal policies and the extension of alternative sanctions and non-custodial preventive measures. However, it calls on the authorities to enact and apply rapidly the necessary legislation for it to be put into effect. It encourages the Azerbaijani authorities to ensure that it is applied in compliance with the standards of the Council of Europe. It also calls on Azerbaijan to create a separate juvenile justice system.
11The Assembly stresses the fact that the exercise of the rights guaranteed in Articles 10 and 11 of the European Convention on Human Rights is essential for the proper functioning of a democratic society. The Assembly is concerned by allegations relating both to a restrictive climate for extra-parliamentary activities of the opposition and the limitations on the freedoms of expression and association, in particular with regard to independent media and advocates of freedom of expression. It is concerned about the reported problems concerning the use of criminal legislation to limit freedom of expression, as underlined by the Committee of Ministers in the context of its supervision of the application of the judgments of the European Court of Human Rights. The legislative framework for NGO activities has been judged insufficiently compliant with European standards by the bodies of the Council of Europe. Accordingly, the Assembly calls on the Azerbaijani authorities to:

10 October 2017

Tabled by Mr Frank SCHWABE, Ms Doris BARNETT, Ms Ute FINCKH-KRÄMER, Ms Gabriela HEINRICH, Mr Boriss CILEVIČS

Votes: 98 in favor 34 against 13 abstentions

In the draft resolution, replace paragraph 11 with the following paragraph:

"The Assembly stresses the fact that the exercise of fundamental freedoms of expression, assembly and association, guaranteed in Articles 10 and 11 of the European Convention on Human Rights, is essential for the proper functioning of a democratic society. The Assembly is extremely concerned by numerous allegations relating both to a restrictive climate for extra-parliamentary activities of the opposition and the limitations on the freedoms of expression, assembly, and association, in particular with regard to independent media and advocates of freedom of expression. These systematic restrictions and limitations do not meet criteria of legality, proportionality and necessity in a democratic society. It is very concerned about the reported problems concerning the use of criminal legislation to limit freedom of expression, as underlined by the Committee of Ministers in the context of its supervision of the application of the judgments of the European Court of Human Rights. The legislative framework for NGO activities does not comply with European standards, as stated by the bodies of the Council of Europe. Accordingly, the Assembly calls on the Azerbaijani authorities to:"

Explanatory note

The resolution should refer to fundamental freedoms that are under pressure in violation of the Convention, including freedom of assembly. Systematic restrictions and limitations do not meet criteria of legality, proportionality and necessity in a democratic society. The NGO legislation has been "judged not complying" by the CoE bodies.

11.1ensure that activists, human rights defenders and other individuals are able to peacefully exercise these rights without fear of retribution.
11.2remove the obstacles to the work of journalists and human rights defenders;
11.3create an environment conducive to the work of the independent media and the activities of NGOs;
11.4bring the legislation on defamation and NGOs into line with the requirements arising from the judgments of the European Court of Human Rights and the recommendations of the European Commission for Democracy through Law (Venice Commission);
11.5ensure that fair trial guarantees and due process rights are respected and upheld in all cases;
11.6abrogate any other legislative measure which could restrict the exercise of the freedoms guaranteed in Articles 10 and 11 of the Convention;
11.7apply the relevant legislation in compliance with the requirements arising from the Convention and the case law of the Court.
12The Assembly calls on the government to eliminate obstacles to the activities of NGOs and to step up meaningful dialogue with them and civil society and urges the latter to participate actively in a constructive and co-operative spirit.

In the draft resolution, paragraph 12, replace the words "them and civil society and urges the latter to participate actively in a constructive and co-operative spirit." with the following words: "civil society."

Explanatory note

Calling on civil society to adopt a constructive and cooperative spirit with the government is sadly ironic considering the unprecedented crackdown of recent years. Dialogue is possible only if the authorities create a conducive environment in which civil society can operate without fear of being targeted for carrying out ligitimate activities.

13Given that this is a region currently experiencing considerable tension, the Assembly welcomes the secular nature of the State and its climate of religious tolerance, for example in relation to the Jewish community which, according to its representatives, lives in harmony with the rest of the population.
14The Assembly is aware that Azerbaijan, like most countries in the Council of Europe, is faced with the problem of foreign fighters in Syria and Iraq, and it supports the government’s efforts to combat this phenomenon, urging it to do so with full regard for the principles of the rule of law. The Assembly shares the authorities’ concern to combat the financing of terrorism.
15The Assembly also notes with satisfaction that Azerbaijan has made significant progress in reducing poverty.

10 October 2017

Tabled by Mr Frank SCHWABE, Ms Doris BARNETT, Ms Ute FINCKH-KRÄMER, Ms Gabriela HEINRICH, Ms Olena SOTNYK

Votes: 95 in favor 41 against 15 abstentions

In the draft resolution, delete paragraph 15.

Explanatory note

The focus of the resolution should not be skewed towards matters outside of the mandate by including issues that are irrelevant and have nothing to do with politically-motivated persecution. Assessment of the issue is arguable and sounds as an apology for continued human rights violations. The paragraph should be deleted.

16The Assembly refers to its Resolution 2178 (2017) on the implementation of judgments of the European Court of Human Rights. It notes that more than 120 Court judgments against Azerbaijan have not yet been executed or have been only partially implemented. The Assembly notes that little progress has been made regarding the execution of certain judgments or groups of judgments, in particular regarding ill-treatment, violations of the right to a fair trial, the right to freedom of expression and freedom of assembly and association, and the right to free elections. It calls on the authorities to co-operate fully with the Committee of Ministers and the Department for the Execution of Judgments of the European Court of Human Rights and to take all the necessary measures to implement quickly and fully the judgments of the Court, including the payment of just satisfaction to applicants within the time frames set out in the Court’s judgments.
17The Assembly refers to the Court’s judgment of 22 May 2014 concerning Mr Ilgar Mammadov and the repeated calls of the Committee of Ministers for his release. It takes note of the authorities’ explanations justifying the continued detention of Mr Mammadov. Nonetheless, the Assembly urges the Azerbaijani authorities to execute the judgment and release Mr Mammadov immediately.

In the draft resolution, paragraph 17, delete the following words: "It takes note of the authorities' explanations justifying the continued detention of Mr Mammadov. Nonetheless,".

Explanatory note

The Assembly should not take the note of the government's position, which is violating the European Court decision and ignores repeated calls by the Committee of Ministers to release Mr Mammadov.

18The Assembly encourages the Azerbaijani authorities to step up the measures to raise the awareness of the standards of the European Convention on Human Rights among judges, prosecutors, law-enforcement officers and lawyers.