27 Ekim 2016 Perşembe
24 Ekim 2016 Pazartesi
JOINT PACKAGE OF PROPOSLAS Of representatives of Azerbaijan’s civil society For improvement of legislation regulating the activities of civil society
Joint Package Of Proposlas
Of representatives of Azerbaijan’s civil society
For improvement of legislation regulating the
activities of civil society
Introduction
The
right to freedom of association is one of the most important human rights that
we possess. Along with the freedom of peaceful assembly, it is one of the
fundamental rights designed to protect people’s ability to come together and to
work for common welfare (benefit).
This
right is a crucial tool for the implementation of many other civil, cultural,
economic, political and social rights. The right to freedom of association also
plays a key role in the establishment and existence of effective democratic
systems, which are a channel for dialogue, pluralism, tolerance and broad world
outlook and in which minorities or dissent or beliefs are respected.
The
right to freedom of association may be considered new for Azerbaijan. After
Azerbaijan gained its independence, this right was enshrined in its
Constitution and citizens began to enjoy this right thereafter. This right
became even more widespread as Azerbaijan joined the Council of Europe.
The
right to unite in non-governmental organizations is an integral part of this
right. NGOs that spread over a wider area in Azerbaijan starting from 2001, has
experienced serious obstacles to the right to freedom of association.
According
to official figures, currently there are more than four thousand registered
NGOs in Azerbaijan. At first glance, it may look a big figure, but compared to
the situation in neighboring and developing countries it is indeed a very small
figure.
According
to the data from 2015, more than 34,000 NGOs are operating in Estonia, which
was also part of the Soviet Union for more than 60 years together with
Azerbaijan and whose population is less than 1.5 million. Neighboring Georgia,
another ex-Soviet country with a population of about 4 million, is home to more
than 20,000 NGOs. Comparably, the situation in Azerbaijan is not encouraging.
Another
disheartening factor is the strong deterioration of the NGO environment in the
country. Beginning from 2013, interferences with the NGO environment have led
to an extremely strained situation. Majority of registered NGOs performing
their true functions and being useful for separate layers of society have been
forced to cease their operations.
The
purpose of presenting these proposals is to eliminate the legal and practical
problems existing in the NGO environment since 2013 and to call the
government’s attention to reconsidering the legislation, which causes these
problems, and creating new legislation according to democratic legal
principles.
General views
In
keeping with the tenor of Article 58 of the Constitution of the Republic of
Azerbaijan, Article 11 of the European Convention on Human Rights and Article
22 of the UN Covenant on Civil, Political and Cultural Rights, the country's
legislation establishing the legal regulation of the right to freedom of
association[1]
should be monitored and redrafted taking into account the legal issues that
have arisen recently as well.
Article
58 of the Constitution protects the right to freedom of association in a broader
fashion and does not provide for the necessity of any restrictive legal
procedures for the exercise of freedom of association. The fact that a
procedure not envisaged in the Constitution is provided for by a law and that,
moreover, these procedures include numerous restrictive rules is contrary to
the very essence of the Constitution. By law, regulation of freedom of
association may be subject to certain restrictive procedures. But such
procedures must be in accordance with the test of “necessity in a democratic
society” and must be the norms that govern this freedom and facilitate its
realization rather than restricting and fundamentally destroying it.
Legislative
acts regulating the activities of NGOs, funds, public associations,
non-commercial entities, communities and civil society in general should be
redrafted with the participation of the public respecting democratic values
(with the active participation and consensus of NGOs, political parties, media
representatives, religious communities and independent experts). They should be
rid of the norms existing in the laws or introduced later on, which restrict
and narrow the freedoms or subject their realization to very complicated
procedures. They should be turned into a legislation that regulates the
freedoms in consideration of international legal standards acceded to by
Azerbaijan, case law of the European Court of Human Rights, and opinions of
international organizations, including the Venice Commission.
For
radical improvement of the situation, in fact, it is already very unlikely that
the laws in this area may improve through amendments, because rather than
renormalize laws through amendments after the manifold changes and additions
introduced with the aim of bringing freedoms under control and restricting
them, it would be more appropriate to work on drafts, to table and pass bills
that are more protective of freedoms. Before this step is taken, it is
important to make some urgent changes in the following laws at least to restore
freedom of association and to enable the functioning of civil society.
Law of the Republic of Azerbaijan on non-governmental
organizations (public associations and funds)
A.
Elimination of registration and operation problems
1.
According to the Constitution, freedom of association
is not a freedom exercised by obtaining prior permission from the relevant
state body. Therefore, registration procedures should be simplified for people
wishing to realize their freedom of association and to establish NGOs and
public associations, as well as branches and representations of foreign
non-commercial organizations, and registration of non-commercial entities
should be transferred to the notification system as with organs of the press. Any
legal or natural person or group of persons should be able to unite without
prior permission and by providing a notification to the relevant state body in
this regard to start operating freely after some time (not more than 3 days).
In so doing, full opportunities should be provided for utilization of the
infrastructure of e-government system in the country and notification should be
adapted to the electronic system. Except when there is already a registered
legal entity with the same name and except the grounds specified in Article 11
§ 2 of the European Convention on Human Rights, the relevant state body must
officially register the organization and provide its founders with a
certificate and an extract from the register within 3 days. In all cases, the
organization should be able to start its legal activity after 3 days. Branches
and representations of foreign non-commercial organizations must also be
registered in accordance with these principles, as well as by submitting
decisions confirming their registration in their country of origin and related
to the opening of a representation and appointment of a representative.
2.
The scope of documents required from NGOs must be
sharply decreased. Since the decision of the founding meeting already contains
the information on the founders and the organization's location, there is
virtually no need for additional documents. If no change has happened with
regard to the founders at the general meeting and the legal representative has
not been changed, it is groundless to demand submission of updated information
to the Ministry of Justice and this requirement must therefore be removed from
the legislation. Since there will be no need for a statutory change after the
adoption of an Exemplary Charter, registration of such a change cannot be
required either.
3.
The presence of
NGO naming provisions in the law, except for existence of same names, such as
notifying about inadmissibility of selecting certain names and requiring
congruity between the name and the purpose are the reasons, which indirectly
restrict the freedom and are not based on a legitimate ground. It is
unacceptable to have such restrictions in the law. Therefore, the restrictive
approach to the choice of names should be abandoned. Particularly unacceptable
is the requirement to obtain permission from relatives of famous people for
using their names. How should the founders of a public union studying the
legacies of Nizami Ganjavi, Fuzuli or Nasimi find their heirs and obtain
permission? It is not a logical or doable requirement.
4.
Along with the Law on Non-governmental organizations
(public associations and funds), an Exemplary Charter must be approved for NGOs
and Funds. This Charter must determine the single form of management of an
association or fund, and all NGOs must adopt a management system conforming to
this form. Thus, the emergence of a claim about Charters' nonconformity to the
legislation will be prevented. In addition, this Exemplary Charter must
establish a framework for action for NGOs by listing the legitimate grounds for
restriction of freedom of association stipulated in the Constitution and the
European Convention on Human Rights and Freedoms. So, this framework must be a
pre-determined and accepted framework for action for everyone. The Exemplary
Charter must grant NGOs freedom to choose their lawful areas of activity.
Thereby, NGOs' lawful activities will be ensured.
5.
Direct and related normative
legal acts regulating the activities of NGOs must be reviewed. Their provisions
must not hinder NGOs' activities, but be regulatory;
6.
All illegitimate provisions impeding the activities of
non-profit organizations, branches or representations of foreign non-profit
organizations must be eliminated. Grant and donation registration system must
be abolished. Information about the received grants and donations must be
presented simply in the annual financial report. Bank operations on grants and
donations must be completely free and independent of any prerequisite. Both
payment systems permitted by law, that is cash and wire transfer systems must
be allowed for grant and donation payments.
7.
The system that requires registration of donors must
be abandoned. All provisions that prevent donors from operating freely must be
removed from the legislation.
8.
The provisions stipulating registration of service
contracts in case of the provision of services with funds received from a
foreign source must be discarded. All income irrespective of its source must be
disclosed within the system envisaged in tax returns.
9.
Activities of the branches and representations of the
foreign NGOs operating in Azerbaijan must not be restricted in any way.
Provisions that prevent them from opening branches in more than one place must
be overturned. The mandatory precondition for deputy heads of such
organizations to be Azerbaijani citizens must be removed. This type of
discriminations in the legislation must not be allowed.
10.
Impedimental legislative procedures required for
registration of representations and branches of foreign legal entities must be
simplified. Particularly, the requirement to conclude an agreement must be repealed.
They must be provided with equal rights with Azerbaijani NGOs. In addition to
the procedures required for local NGOs, submission of a certified copy of the
document confirming that the foreign legal entity operates legally in its
country of origin and the organization's decision to open a representation or
branch must be sufficient for registration of branches and representations of
foreign legal entities. Decision
No.43 dated 16 March 2011 of the Cabinet of Ministers of Azerbaijan Republic on
approval of the "Rules for Conducting Negotiations for Preparation and
Signing of an Agreement for the State Registration of Branches or
Representations of Foreign Non-governmental Organizations in the Republic of
Azerbaijan" must be annulled. The government must be deprived of
intervention opportunities at this stage.
11.
The scope of
activity of NGOs and public associations must not be restricted without a
legitimate basis in the law. Specifying what kinds of activity NGOs can engage
in is a directly restrictive approach and this method must be abandoned.
Restrictions on the activities may be imposed in a balanced way in cases of
legitimate limitations specified in the Constitution of the country,
Constitutional law and Article 11 of ECHR and where they arise from necessary
social pressure in a democratic society. In general, defining the type of
activity by name or requiring that the type of activity is included in the name
and restrictions placed on conducting exit polls are direct and illegitimate
interferences with freedoms, and this method is unacceptable.
B.
Elimination of problems concerning termination of activity
Termination
of NGOs' activities must happen only by court order:
·
The reason
that provides a basis for termination must be quite clearly, accurately and
comprehensively envisaged in law by indicating Constitutional and Conventional
grounds, must allow clear foreseeability of prohibitions, and must not consist
of vague expressions or norms allowing for broad interpretation;
·
The purpose and the result of the legal reasons
forming the basis for termination must exclusively be for one or several of the
legitimate public interests listed in Articles 3.5 and 3.6 of the
Constitutional Law on Regulation of the Exercise of Human Rights and Freedoms
in the Republic of Azerbaijan, as well as Article 11 § 2 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms, namely
national security, territorial integrity, public safety and security,
prevention of disorder and crime, protection of health and morals, and
protection of the rights and freedoms of other persons;
·
Termination must occur when it is aimed at protecting
the most important values necessary for the existence of a democratic society
and is applied as a last resort in a democratic society. That is, if other
reasonable and effective means that would place fewer restrictions on freedom
of association in order to protect legitimate public interests have been
exhausted;
·
Termination of
an NGO's activity by putting an end to freedom of association or imposition of
other penalty sanctions must be proportionate to freedom of association. That
is, the benefit from the protection of legitimate public interests must be
greater than the damage that the restriction (considering the sanctions to be
applied) will cause to freedom of association.
1.
Artificial reasons serving as the basis for
termination of NGOs' activities must be removed from the Law. Issuance of a
written warning to the NGO or punishing it administratively alone must not
provide the basis for its liquidation. The amounts of administrative fines must
be returned to the thresholds effective until 2008 and be adjusted to the
minimum wage index applied in the country. Astronomical fines for non-profit
organizations, which do not pursue any commercial purposes, must be removed
from the Administrative Violations Code.
2.
The provisions regulating the empowerment of the
Ministry of Justice to check the compliance of NGOs' activities with the
legislation and their Charter must be removed from the legislation. The
Decision No.11 dated 28 December 2015 of the Board of the Ministry of Justice
on approval of the "Rules for examining the activities of NGOs, branches
or representations of foreign NGOs" must be revoked.
C. Responsibility
for violators of the implementation of legislation
1.
Actions that restrict NGOs' freedoms, arbitrarily
refuses registration, requires additional documentation, involves red tape, and
creates artificial barriers to their legitimate activities must entail
administrative and criminal liability, regardless of who commits them.
Accordingly, new articles must be added to the Administrative Violations Code
and the Criminal Code. Officials and agencies, who commit illegal actions or inaction
that hinders the activities of NGOs or illegally restricts their rights, must
bear administrative responsibility. If such actions are committed deliberately,
with a mercenary motive or through abuse of power, criminal responsibility must
be stipulated.
Law of
Azerbaijan Republic on State Registration and State Register of Legal Entities
1.
The provisions concerning NGOs in the Law on State
Registration and State Register of Legal Entities must be revised. State
registration must be implemented in a simplified form according to the
notification system. The norms not based on a legitimate legal purpose must be
annulled.
2.
Distinction made between commercial and non-commercial
entities must be fully amended in favor of non-commercial entities. Registration
of branches and representations of foreign non-profit organizations must be
simplified as provided above, the Agreement condition and other provisions
creating artificial obstacles must be repealed.
3.
Overall, ten different laws amending this Law were
passed over the years 2010-2016, and each of them had restrictive objectives.
So, except for technical changes, the restrictive provisions introduced by
these laws must be removed from the legislation. In particular, requiring
"the opinion of the relevant executive agency for state registration of
non-commercial legal entities having areas of activity related to promotion of
religious values in their charter" amounts to making a right subject to
political considerations and restricting freedoms illegitimately.
Law of
Azerbaijan Republic on Grant
1.
Eighteen different restrictive changes and additions
were made to this law through different laws, once in 2009 and four times in
2013 and 2014. Practically all of them were restrictive in nature. Therefore,
they must be discarded.
2.
The provisions prescribing registration of grants and
donations must be rescinded. Information on received grants and donations must
be presented simply in annual financial reports. Bank operations on grants and
donations must be freely performable without the requirement to present a
notice. Both payment systems permitted by law, that is cash and wire transfer
systems must be allowed for grant and donation payments.
3.
The system requiring registration of donors must be abandoned.
Irrespective of their location, donors must be enabled to freely give grants to
any civil society organizations or individuals operating in the country.
Provisions requiring grants' appropriateness to their purpose to be assessed by
the relevant executive agency, as well as all other provisions that hinder
activities must be removed from the legislation. Decision No.216 dated 5 June
2015 of the Cabinet of Ministers of Azerbaijan Republic on approval of the "Procedure for registration of grant agreements
(decisions)" which stipulates registration of grant agreements, as
well as Decision No.339 dated 22 October 2015 of the Cabinet of Ministers of
Azerbaijan Republic on approval of the "Procedure
for foreign donors' acquiring the right to give a grant in the territory of the
Republic of Azerbaijan" must be annulled.
4.
Decision No.336 dated 21 October 2015 of the Cabinet of Ministers of
Azerbaijan Republic on approval of the "Procedure for submission of
information on the amount of donations received by NGOs, as well as branches or
representations of foreign NGOs and persons granting the donation" must be
repealed.
5.
The provisions stipulating registration of service
contracts in case of the provision of services with funds received from a
foreign source must be discarded. All income irrespective of its source must be
disclosed within the system envisaged in tax returns. The rules governing "registration of service contracts
under grants received from a foreign source" must be rescinded.
6.
All administrative penalty sanctions stipulated for
donors and recipients with regard to giving and receiving grants must be
abolished and removed from the Administrative Violations Code.
Law of Azerbaijan Republic on Volunteer Activity
A subsection added to Article 11 of the Law on
Non-Governmental Organizations (Public Associations and Funds) on 19 December
2013 determines: "The presence of assistants in non-governmental
organizations and their legal status are defined by the non-governmental
organization's founding documents and the Law of Azerbaijan Republic on
Volunteer Activity." Article 6 of the Law on Volunteer Activity lists the
obligations of the organizers of volunteering, and an NGO intending to recruit
volunteers will have to sign a written contract with the volunteer, to provide
life and health insurance for the volunteer in all cases, to engage the
volunteer in trainings when necessary, and inform the State Migration Service
of Azerbaijan Republic about foreign volunteers and stateless persons. Here,
requiring the same standard regardless of the nature of the work, irrespective
of whether it is short-term or one-time, is not the right approach. Sometimes
NGOs have to use the help of volunteers at an event lasting for a few hours. In
this case, it is not possible anymore. This requirement, in fact, serves to
encumber NGOs.
In addition, Article 10 of the Law says that "The
international organizers of volunteering, including foreign volunteers and
stateless persons may do volunteer work in the territory of the Republic of
Azerbaijan only in collaboration with the organizers of volunteer activities in
the Republic of Azerbaijan". This approach is entirely restrictive in
nature. It thus restricts all opportunities to act for participants of a
volunteer mission, who want to voluntarily teach a foreign language in the
country. These restrictive provisions must therefore be removed from the
legislation and the existing provisions must be softened.
Law on Freedom
of Religious Belief and Law on Fight against Religious Extremism
1.
The Law on Freedom of Religious Belief,
which was adopted on 20 August 1992, has been amended through different laws 16
times. Particularly over the past 7 years, changes and additions were made to
the law 11 times. Six of them occurred directly in the years 2013-2015. In the
last 7 years, 62 different additions and changes were made to the Law, which
itself consists of only 31 articles. The vast majority of these changes are
restrictive. In addition to this law, the Law on Fight against Religious
Extremism was adopted in 2015 and has served to impose maximum restrictions on
the freedoms in this area. Therefore, this law must be rid of all restrictive
provisions.
2.
A new condition on religious literature being labeled
by a government agency with a specific control mark has been introduced into
the law. This means a significant restriction on freedom of conscience and
freedom of expression and needs to be removed from the legislation.
3.
A number of provisions causing interreligious
discrimination in the country have been introduced into the law. Unlike other
religions, Islamic rituals and ceremonies can be performed only by the citizens
of the Republic of Azerbaijan. Citizens of Azerbaijan Republic, who have received
their religious education abroad, are prohibited from holding Islamic rituals
and ceremonies. All these provisions must be removed from the legislation.
4.
Provisions relating to the rules for the
registration of religious organizations and religious communities are
ridiculous. Along with the documents stipulated in the Law of Azerbaijan
Republic on State Registration and State Register of Legal Entities, the
documents required for registration also include "application submitted by at least fifty adults or their
authorized representatives with enclosed founding protocol and charter of the
community, the list of the founders of the religious community indicating their
nationality, place of residence and date of birth, copies of their
identification documents, principles of religious teaching, as well as
information on the date of establishment of the religious community, its forms
and methods of activity, traditions and attitude towards family, marriage and
education, and restrictions on the rights and responsibilities of the members
of the community". The vast majority of this information being a
prerequisite for the exercise of the right to freedom of association is not a
legitimate approach. Such restrictive legislative provisions must be repealed.
5.
Requiring the opinion of the State
Committee for Religious Affairs, in addition to all documents, for registration
of religious communities is a provision, which blocks legal procedures and
unreasonably restricts the freedom, and must be abolished.
6.
The fact that religious communities are
allowed to operate only in their registered address and are not allowed to
operate throughout the country is another restrictive approach and must be
abolished.
7.
Prohibition of
demonstrating religious slogans and other religious attributes outside places
of worship in public places is an illegitimate interference with persons' right
to freedom of assembly and freedom of expression and must be repealed.
8.
Provisions
envisaging registration of grants and donations received by religious
organizations, as well as responsibilities stipulated in this connection must
be reversed.
Administrative Violations Code, Criminal Code
1.
The following
provisions, which were added to the Administrative Violations Code after the
provisions restricting the activities of civil society were introduced into the
legislation, must be completely removed from the legislation.
·
Article 432, which
regulates "violation of the legislation on receiving (giving) grant";
·
Article 465, which
deals with "failure to include information about donations in financial
reports";
·
Article 466, which
governs "giving or receiving donated money in cash";
·
Article 579, which regulates "violation of the legislation on
non-governmental organizations";
·
Article 580, which governs "impeding the process of studying the
compliance of the activities of NGOs and branches or representations of foreign
NGOs with their charters (regulations) and the legislation";
·
Article 581, which regulates "failure of NGOs or branches or
representations of foreign NGOs to eliminate the violations noted in the
warning or directive of the relevant executive agency in a timely manner";
·
Article 582, which regulates "violation of the rules on functioning
of branches or representations of foreign NGOs".
2. The following articles, which have been
recently entered into the Criminal Code and are essentially incompatible with
democratic law principles and stipulate up to five years' imprisonment, must be
removed from the Criminal Code.
·
Article 167-2.
Production, importation with the purpose of selling or distributing, sale or
distribution of religious literature (in paper or electronic format), audio and
video materials, items and goods and other informational materials of religious
content without relevant permission;
·
Article 168. Creating, leading or
participating in a group, which under the pretext of propagation of religious
denominations and performance of religious rituals carries out activity that
violates public order, or harms citizens' health, or violates the rights of
citizens regardless of its form, as well as distracts citizens from performance
of their duties established by law;
·
Article 168-1. Performance of Islamic rituals and
ceremonies by a citizen of Azerbaijan Republic, who has received religious
education abroad, and conducting of religious propaganda by a foreigner or a
stateless person.
Signatures:
1.
Aghaliyev Khalid, lawyer, Civil
Society Platform
2.
Aghayev Rovshan, expert economist, Civil Society Platform
3.
Aliyev Intiqam, Legal
Education Society
4.
Aliyev Mehman, “Turan” News
Agency, Civil Society Platform
5.
Aliyev Samir, Media and
Public Initiatives Public Union
6.
Baghirov Khalid, lawyer, Civil Society Platform
7.
Chobanoghlu Shahveled, journalist, Civil Society Platform
8.
Gulalıyev Oqtay, Public
Union for Democratic reforms
9.
Guliyev Ziya, Legal
Initiatives Centre
10.
Gurbanov Akif, Democratic
Initiatives Institute
11.
Hajıbeyli Rovshan, Democratic
Journalism School
12.
Huseynov Emin, Institute
for Reporters Freedom and Safety
13.
Ibadoglu Qubad, expert economist
14.
Imranova Aynur, Public
Union Support to Media and Democracy Development
15.
Ismayıl Shahla, Women’s
Association for Rational Development
16.
Ismayil Zohrab, Public
Association to Assist Free Economy
17.
Jafarov Rasul, Human Rights
Club
18.
Kazımlı Samir, human rights
defender, Civil Society Platform
19.
Kazımov Seymur, journalist,
Civil Society
Platform
20.
Mahmudov Kamran, journalist,
Civil Society
Platform
21.
Mammadli Anar, Elections
Monitoring and Democracy Studies Centre
22.
Mammadli Alasgar, lawyer, Civil Society Platform
23.
Mammadli Nasimi, Broadcasters
Monitoring Centre
24.
Mehtiyev Azer, Public Union
Support to Economic Initiatives
25.
Mustafayev Asabəli, Democracy and Human Rights Resource Centre
26.
Rahimli Mehriban, Civil Society Platform
27.
Suleymanlı Bashir, Citizen Rights Institute
28.
Toghrul Galib, Economic Research Centre
29.
Zeynallı Avaz, “Khural” newspaper, Civil Society Platform
Coordinators:
Alasgar Mammadli, lawyer,
Civil Society Platform, +994 50 235 32 50, elesgerm@gmail.com
Rasul Jafarov, human
rights defender, Human Rights Club, +99450 586 35 37, resul.j@gmail.com
[1] Law on non-governmental organizations (public
associations and funds), Law on state registration and state register of legal
entities, Law on grant, Law on freedom of religious belief, Law on fight
against religious extremism, relevant provisions of Administrative Violations
Code and Criminal Code, Decrees of the President of Azerbaijan Republic in this
field, decisions of the Cabinet of Ministers, ministries and committees in this
field