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civil society etiketine sahip kayıtlar gösteriliyor. Tüm kayıtları göster

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