REPORT
ON THE CURRENT CONDITION OF DEMOCRACY IN
February 2009
I.
HUMAN RIGHTS
1. Constitutional framework for protection of human rights
48 articles of the Constitution of
the
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 .
In December of 2002, the Parliament of
Azerbaijan adopted
The Constitutional Law On Regulation of Implementation of Human Rights
and
Freedoms in the
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
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
1. Legal guarantees of freedom of
expression
In view of domestic law, freedom of
expression was
first defined in the Constitution of the
Additional reasons for the restriction of
these rights
were revealed in the Constitutional Law adopted by the Parliament of
the
2. Condition of freedom of expression in
practice.
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
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
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
GündYlik AzYrbaycan
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
III. ELECTORAL RIGHT
1. Legal guarantees of 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
The citizens of the
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:
Ø
persons
imprisoned by court
decision;
Ø
not
depending on
restoration of pre-trial status and cancellation of criminal record,
those
condemned for grave crime;
Ø
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:
Ø
military
servants, while
they are on military service;
Ø
judges,
while the are in
office;
Ø
state
servants, while they
are in State service;
Ø
clergymen, while they are engaged in professional religious activity;
Ø citizens of the
Republic of Azerbaijan with dual citizenship,
until their dual citizenship expires;
Ø
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
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
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
IV. MEDIA FREEDOM
1. Legal guarantee of media freedom
The guarantee of media freedom in
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
There is wide range of legislative acts
regulating
mass media. The main law that regulates mass media is the Law of the
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
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
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
V. OTHER FUNDAMENTAL RIGHTS AND FREEDOMS
1. Freedom of Association
Pursuant to the Article 58 of the
Constitution of
the
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.
a. Association in trade
unions
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.
b. Nongovernmental organizations
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.
2. Freedom of assembly
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
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
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.
3. Political Rights
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
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