ALAGAR MAMMADLI
Research was carried out with the support of the British Embassy Baku.
BAKU-2015
Regulation of Freedom of Association in the
Constitution of the Republic of Azerbaijan
Article 58 “Freedom of
Association” of the Constitution of the Republic of Azerbaijan adopted in 1995
assures every person’s right to engage in association with others. Hence, the
Constitution guarantees this right for physical and legal entities enabling
them to freely enjoy this right.
Clause 2 of this Article emphasizes the broader scope of
the freedom of association by stating, “Every
person has the right to establish a union, including political parties,
trade unions and any other public unions, or to join an already existing
union”. This right embraces the establishment of political parties, trade
unions and their activities, as well as the establishment of unions of any
forms and their functioning, which reinforces its commitment to the right of
association.
The Constitution guarantees and emphasizes the free
functioning of unions established within the framework of the freedom of
association. Article 59 Clause 3 of the Constitution, which states “No one shall be forced to join a union or
remain a member in such a union” underlines the voluntary character of the
freedom of association by pointing out the inadmissibility of forced membership
of individuals in organizations against their will.
Clause 4 of the respective Article of the Constitution has
established the boundaries of the freedom of association by proclaiming, “Unions aiming to overthrow the government
by force in the entire territory or in any part of the Republic of Azerbaijan
shall be prohibited.”
The fact that the legitimate aim set as a ground to
restrict the freedom of association in the Constitution is merely limited to “the overthrow of the legal government by
force” evidently mirrors the traces of the two coup d’états and one attempt for a coup within the four years from
1991 - when the country gained its independence - until November 1995 – when
the Constitution was adopted. By nature, this corroborates solely one of the
four distinct principles provided in Article 11 Clause 2 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms. The
last part of Clause 4 states that the termination of an organization’s
functioning shall only be subject to a court decision, thus proclaiming the
dispossession of such a right by an executive body or any other entities.
Article 11 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms that Azerbaijan ratified in 2001
guarantees the freedom of association. According to this Article:
1.
Everyone has the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and to join trade unions
for the protection of his interests.
2.
No restrictions shall be placed on the exercise of these rights other than such
as are prescribed by law and are necessary in a democratic society in the
interests of national security or public safety, for the prevention of disorder
or crime, for the protection of health or morals or for the protection of the
rights and freedoms of others. This article shall not prevent the imposition of
lawful restrictions on the exercise of these rights by members of the armed
forces, of the police or of the administration of the State.
While
the first part of this Article defines freedom of association, the second part
sets the grounds and conditions under which this right may be subject to
restrictions.
The
most serious challenge in exercising the freedom of association consists in the
legal grounds that, at times, are justified and defended as legitimate
restrictions to impede freedoms. In the meantime, the practices of formal
institutions that are based upon restrictions lead to the elimination of the
freedom.
Article
11 of the Convention sets forth a limited number of cases that can justify
restrictions to be placed by States on this freedom. Such cases shall be deemed
limited due to their concreteness and that they cannot be expanded upon through
interpretation. This comes from a reason that Azerbaijan, as a member State
that became a Party to the Convention and must put in an application the
jurisdiction of the European Court of Human Rights, is obliged to correctly
apply this practice both through the bodies implementing the legislative functions
and the executive entities practicing the international legal rules. In short,
Azerbaijan, like other States that joined this Convention, must not impose any
restrictions on the exercise of this right other than those prescribed by this
Convention, nor can it expand on these restrictions. Azerbaijan has assumed this as an obligation.
The
restrictions pertaining to the freedom of association can only be drawn from
Article 11 Clause 2 of the Convention, which are:
- in the interests of national security or public safety;
- for the prevention of disorder or crime;
- for the protection of health or morals;
- for the protection of the rights and freedoms of others.
Article
11 Clause 2 of the Convention indicates to member States the category of
professions that may be restricted from exercising their freedom of association
by stating, “This article shall not
prevent the imposition of lawful restrictions on the exercise of these rights
by members of the armed forces, of the police or of the administration of the State”.
The logic standing behind this is that persons employed by armed forces, the
police and the State administration offices are in charge of the activities of
the State bodies, and the assumption that the association of persons belonging
to the aforementioned category of professions may be in conflict with the
functions of public offices and State security.
Imposition
of any restrictions other than those mentioned above shall not be feasible. For
instance, it is inadmissible to build up a “lawful reason” for any restriction
of the freedom of association based upon such grounds as workload of public
offices and lack of sufficient sources and without substantiating such
restrictions with those prescribed by Article 11 Clause 2 of the Convention. In
doing so, Article 11 of the Convention has defined a clear framework not
permitting any additional restrictions.
No other legitimate aim is
provided that can be deemed lawful to place a restriction on the freedom of
association in Article 58 of the Constitution adopted in 1995.
The difference of the
Constitution of the Republic of Azerbaijan from the European Convention for the
Protection of Human Rights and Fundamental Freedoms does not only lie in the
limited number of grounds for restriction of this freedom. Additionally, while
Article 11 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms expresses the freedom of association and freedom of
assembly collectively, Azerbaijan’s Constitution regulates these two rights in
two distinct Articles. Respectively, Article 58 protects the freedom of
association and Article 49 guarantees the freedom of assembly.
No issues would presumably be
raised if the provision of the Constitution that regulates the freedom of
association was enacted in laws in this form and collectively reflected both
the right to association based on similar grounds and the measures for
implementation embedded in laws.
However, the Constitutional Law that is not reflected in the text
of the 1995 Constitution but was subsequently granted the legal power equaling
to that of the Constitution is deemed one of the first documents challenging
the exercise of the freedom of association. In effect, there is a clearly
articulated expression in the provisions of Article 71 of the Constitution
guaranteeing human rights and freedoms: “To observe and to protect rights and liberties of a human being and a
citizen specified in the Constitution is responsibility of bodies of
legislative, executive and legal power”. By the same token,
this Article articulately states that no one shall be able to impose any
restriction on the exercise of rights and freedoms of a human being and a
citizen. The existence of such provisions is due to the absence of ability of
the three branches of government, precisely of the legislative body to create
laws based upon its preferred political views and the inflexibility refraining
it from establishing a narrower framework rather than the one identified in the
Constitution. In spite of the presence of the articulated provisions, the
legislative body adopted other provisions placing new restrictions on the
exercise of rights and freedoms of a human being and a citizen.
Article 71 of the Constitution does not only present a restriction
that can be imposed on the freedom of association prescribed under Article 58
but it also provides grounds enshrined in the Constitution permitting
restrictions on human rights and freedoms in general. Such a ground has been
established as follows: “announcement of war, martial law and state of emergency, and
mobilization”.
These grounds can be applied in view of a condition emphasized in the
respective Article of the Constitution stating “…can be partially and temporarily restricted in consideration of the
international obligations of the Republic of Azerbaijan”. Accordingly, such
restrictions can only be maintained temporarily and in view of the
international obligations of the country even in the presence of a case “announcement of war, martial law and state
of emergency, and mobilization”. The obligations adopted during the
accession to the Council of Europe and the international legal norms ratified
and incorporated into domestic laws must be respected.
Until the August 2002 Referendum,
which endorsed the adoption of amendments to the Constitution, the word “only”
would be used in identifying this condition, thus making it clear that the
rights and freedoms assured by the Constitution would not be subject to any
restrictions under different grounds and terms in peaceful times.
On 24 December 2002, the
Constitutional Law on Regulation of the Exercise of Human Rights and Freedoms
in the Republic of Azerbaijan was adopted, which set forth new requirements for
the imposition of restrictions on human rights and freedoms. However, the main
text of the Constitution voted by the people in Referendum in 1995 had not
prescribed these requirements.
According
to Article 3.6 of the Constitutional Law, the rights and freedoms provided in
the Constitution of the Republic of Azerbaijan can be restricted based upon the
grounds set forth in the Law that are mentioned below in addition to those
prescribed by the Constitution:
·
in the interest of state security;
·
for the protection of health or morals;
·
for the protection of the rights
and freedoms of others;
·
for the prevention of crime;
·
for the prevention of disorder;
·
for the protection of public
safety;
According to Article 3.1 of the
Constitutional Law, the freedom of association along with the rights and
freedoms provided in the Constitution of the Republic of Azerbaijan and in the
international agreements that Azerbaijan has joined can only be restricted by
law. While regulating the freedom of association, this provision guarantees
that other government branches outside of the legislative body do not establish
and apply unlawful grounds.
One of
the requirements of Article 3.3 of the Constitutional Law prohibits any
restrictions on human rights and freedoms that may change the nature of those
rights and freedoms. This is one of the key conditions protecting the nature of
all human rights and freedoms, including the freedom of association.
One of
other guarantees for human rights and freedoms are provided in Article 3.4 of
the Constitutional Law. Any restrictions imposed on the rights and freedoms of
human beings must be in line with the legal aim established in the Constitution
and the Constitutional Law of the Republic of Azerbaijan and be proportionate
to this legal aim.
At first
glance, the regulatory measures in the Constitution and the Constitutional Law
that enjoys equal legal force with the former look normal. Therefore, the
application of such measures in the domestic legislation can be justified
allegedly for alignment with the international regulations. Nevertheless, in the light of a careful
comparative review, various contradictions appear that yield challenges in
practice stemming from such “minor differences”.
Article 11 Clause 1 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms
assures everyone’s right
to freedom of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the protection of his
interests. Clause of the said Article provides lawful grounds for the imposition
of restrictions on the freedom of association. These grounds are: in the
interests of national security or public safety, prevention of disorder or
crime, protection of health or morals or protection of the rights and freedoms
of others.
Accordingly, the lawful grounds envisaged for the
restriction of the freedom of association are virtually similar both in the
Convention and the Constitutional Law. The only difference is that while the
Convention states “in the interests of national security”, the Constitutional
Law, instead, prescribes “the interests of state security” as restrictive
measures.
Another condition “prescribed by law” is set both in the Convention and the
Constitutional Law as a requirement. Any restrictions shall be imposed on the freedom
of association solely by law.
After a comparative review of the European
Convention for the Protection of Human Rights and Fundamental Freedoms with the
Constitutional Law on Regulation of the Exercise of Human Rights and Freedoms
of the Republic of Azerbaijan, we come up with “minor differences” as
mentioned above, and one of such differences is the Convention’s required
condition “necessary in a democratic
society”, which is, by nature, is crucial to the exercise of rights and
freedoms. Under the Convention, even in the presence of grounds restricting the
freedom of association, such restrictions shall be deemed illegitimate unless
they are not “necessary in a democratic society”. To put it in an example:
there are all sorts of goods in the storage, and the selection of the goods is
flexible. However, one of the keys unlocking the storage is “necessary in a
democratic society”. Unless you have this key, you won’t be able to pick up the
goods
While
the legitimate grounds established in the Constitutional Law on Regulation of
the Exercise of Human Rights and Freedoms in the Republic of Azerbaijan are
adequate with those prescribed in the Convention, the absence of a requirement
including the test of “necessary in a democratic society” throughout the application
of restrictions can be characterized as one of the serious problems in this
frame.
Freedom of Association in
International Documents
The documents of the United
Nations
Article 20 of the 1948 UN
Universal Declaration of Human Rights includes the freedom of association. It
states, “Everyone has the
right to freedom of peaceful assembly and association. No one may be compelled
to belong to an association.” Not only does this
Article recognize the freedom of association, but it also assures that no one
would be forced to become a member of an organization. The Article also
enumerates lawful grounds that can be applied in imposing restrictions on this
right. This right can be restricted for the purpose of the protection of
state security, protection of public order and public safety, protection of
public health and moral, or protection of the rights and freedoms of other
individuals but to a degree necessary in a democratic society. It deems it
inadmissible to impose any other restrictions that do fall within this frame.
Article 23 Clause 4 protects the right to form unions in a separate provision: “Everyone has the
right to form and to join trade unions for the protection of his interests.”
Article 22 Clause
1 of the International Covenant on Civil and Political Rights adopted with the
UN Resolution on 16 December 1966 stipulates: “Everyone shall have the right to freedom of association with others,
including the right to form and join trade unions for the protection of his
interests.” This
Articles provides a broader scope of the freedom of association and identifies
the forms of exercise of association freedom, also including trade unions.
Clause 2 of this Article contains the conditions and lawful grounds enabling
the imposition of restrictions on this right. No restrictions may be placed on
the exercise of this right other than those which are prescribed by law and
which are necessary in a democratic society in the interests of national
security or public safety, public order (ordre public), the protection of
public health or morals or the protection of the rights and freedoms of others.
The last part of Clause 2 of the respective Article proclaims that this Article
shall not prevent the imposition of lawful restrictions on members of the armed
forces and of the police in their exercise of this right. This document, as
well, permits restrictions on the exercise of this right by members of armed
forces, the police or public officials.
Article 7 of the UN Convention on the
Elimination of All Forms of Discrimination against Women adopted on 18 December
1979 sets obligations on States that joined the Convention, stating that States
Parties shall take all appropriate measures to eliminate discrimination against
women in the political and public life of the country and, in particular, shall
ensure to women, on equal terms with men, the right.
Article 15 of the 20 November 1989 UN
Convention on the Rights of the Child assures children’s right to a peaceful
association. Similar
to the aforementioned UN documents, imposition of restrictions on this right
shall be admissible it is prescribed by
law and is necessary in a democratic society in the interests of national
security or public safety, public order (ordre public), the protection of
public health or morals or the protection of the rights and freedoms of others.
No restriction may be placed on this right with other grounds.
According to Article 15 of the 28 July 1951 UN Refugee Convention, the
Contracting States shall
accord to refugees lawfully staying in their territory the most favourable
treatment as regards non-political and non-profit-making associations and trade
unions, accorded to nationals of a foreign country, in the same circumstances.
Freedom of Association in Regional Documents
The 2 May 1948 American Declaration of the Rights and Duties of Man captures the freedom
of association in Article 22. The Article states, “Every person has the right to
associate with others to promote, exercise and protect his legitimate interests
of a political, economic, religious, social, cultural, professional, labor
union or other nature.” As the nature of this Article reveals, the concept of the
freedom of association maintains its classical understanding and it is
described in a broader scope. The Article embraces both political association
and trade union association in addition to other types of association.
According to Article 11 of
the European Convention for the Protection of Human Rights and Fundamental
Freedoms adopted on 4 November 1950, entered in force on 15 April 2002 and
ratified by the Republic of Azerbaijan on 15 April 2002 being incorporated into
the domestic laws, “Everyone has the right to
freedom of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the protection of his
interests.” While this Article does not provide for a blatant right
of association with political organizations, however, this concept is conceived
of as association for political purposes in member States’ practices. The second part of the Article enumerates the grounds
and conditions set for the restriction of the right of association. Thus such
grounds and conditions must be prescribed by law and be necessary in a democratic society in the
interests of national security or public safety, for the prevention of disorder
or crime, for the protection of health or morals or for the protection of the
rights and freedoms of others.
Article 10 Clause 1 of the 29 June 1981 African Charter on Human
and Peoples’ Rights assures the freedom of association, “Every
individual shall have the right to free association provided that he abides by
the law.”
The 21 November 1990 Paris Charter for a New Europe of the Conference
for Security and Co-operation in Europe (CSCE) contains a chapter titled Human
Rights, Democracy and Rule of Law, stating that everyone has the right to
association. Under the same title, the Charter also reaffirms everyone’s right
to enjoy social rights. The Charter’s section on Non-Governmental Organizations
recalls the major role that
non-governmental organizations, religious and other groups and individuals have
played in the achievement of the objectives of the CSCE.
Article 12 of the 13 October 2000 EU Convention on Constitutional Rights
assures everyone’s right to freedom of association, thus making it an
obligatory document for the European Union countries.
Criteria for Restriction of Freedom of Association in accordance with
the European Convention on Human Rights
The
European Convention for the Protection of Human Rights and Fundamental Freedoms
and the decisions of the European Court of Human Rights (ECtHR) have identified
the most important and functional framework for the research of restrictions
imposed on the freedom of association of civil society.
A
review of Article 151 of the Constitution of the Republic of Azerbaijan reveals
that the European Convention for the Protection of Human Rights and Fundamental
Freedoms supersedes the domestic laws and has direct force. The European Court
of Human Rights decisions cause the re-review and correction of domestic court
rulings by virtue of civil and public law claims. Thus, the superseding force
of the Convention is acknowledged without any questioning. As mentioned below,
the European Court of Human Rights, in line with the European Convention on
Human Rights, has established precise criteria and conditions under which the
freedom of association may be restricted. The country’s legislative and
executive bodies must consider these criteria, and both the legal framework and
the legal practice must be developed under these criteria.
It
is necessary that the precise scope determined within the framework of the
European Convention on Human Rights and with the judgments of the European
Court of Human Rights is taken as essential in examining this right.
Article
11 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms guarantees the freedom of association. According to this
Article:
1.
Everyone has the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and to join trade unions
for the protection of his interests.
2. No
restrictions shall be placed on the exercise of these rights other than such as
are prescribed by law and are necessary in a
democratic society in the interests of national
security or public safety, for the prevention of disorder or crime, for the
protection of health or morals or for the protection of the rights and freedoms
of others. This article shall not prevent the imposition of lawful restrictions
on the exercise of these rights by members of the armed forces, of the police
or of the administration of the State.
While
the first part of this Article defines freedom of association, the second part
sets the grounds and conditions under which this right may be subject to
restrictions. The most serious challenge in exercising the freedom of
association consists in the legal grounds that, at times, are justified and
defended as legitimate restrictions to impede freedoms. In the meantime, the
practices of formal institutions that are based upon restrictions lead to the
elimination of the freedom.
Article
11 of the Convention sets forth a limited number of cases that can justify
restrictions to be placed by States on this freedom. Such cases shall be deemed
limited due to their concreteness and that they cannot be expanded upon through
interpretation. This comes from a reason that Azerbaijan, as a member State
that became a Party to the Convention and must put in an application the
jurisdiction of the European Court of Human Rights, is obliged to correctly
apply this practice both through the bodies implementing the legislative
functions and the executive entities practicing the international legal rules.
In short, Azerbaijan, like other States that joined this Convention, must not
impose any restrictions on the exercise of this right other than those
prescribed by this Convention, nor can it expand on these restrictions. Azerbaijan has assumed this as an obligation.
The
restrictions pertaining to the freedom of association can only be drawn from
Article 11 Clause 2 of the Convention, which are:
- in the interests of national security or public safety;
- for the prevention of disorder or crime;
- for the protection of health or morals;
- for the protection of the rights and freedoms of others.
Imposition
of any restrictions other than those mentioned above shall not be feasible. For
instance, it is inadmissible to build up a “lawful reason” for any restriction
of the freedom of association based upon such grounds as workload of public
offices and lack of sufficient sources and without substantiating such
restrictions with those prescribed by Article 11 Clause 2 of the Convention. In
doing so, Article 11 of the Convention has defined a clear framework not
permitting any additional restrictions.
The
European Court of Human Rights applies the following tests in determining
whether the State appealed against has breached the Convention in admitting the
cases in question:
1)
Is it possible to apply Article 11 to a case appealed?
2)
Has there been a case of interference based on Article 1?
If
the case in question appealed to the European Court of Human Rights is
concluded to have passed the two testing questions, then the interference
registered is reviewed whether:
a) it is a restriction that may be
deemed lawful prescribed by law;
b) it pursues a legitimate aim;
c) it is necessary in a democratic
society;
In
the meanwhile, the following tests are also applied:
-
whether this stems from a pressing social need:
-
whether the restriction imposed is proportionate to the legitimate aim;
Interference
The
freedom of peaceful assembly and freedom of association protected under the
Convention may only be restricted in conformity with the ground and conditions
set in paragraph 2 of the said Article. If any restriction placed on the
freedom of association is not in line with paragraph 2 of the Article, then
Article 11 of the Convention will be deemed to have been breached. However, it
is important to expose the presence of a restriction on the freedom of
association, prior to establishing whether the restriction in question is in
conformity with Article 11, paragraph 2 of the Convention. In general, it is
not an intricate task to find out a restriction. Any action or operation
restricting the structure or functioning of an organization cannot be
acknowledged as a restriction. Here the fundamental principle based upon human
rights and freedoms is taken as key. Freedom is paramount and restriction is
only an exception. Every step restricting the freedom constitutes
interference.
Prescribed by Law
ECtHR,
after revealing interference with the freedom of association, assesses whether
this interference has lawful grounds. Being prescribed by law means whether
domestic law can justify the interference in question. Nevertheless, it is
impossible to consider the presence of a mere lawful ground as
satisfactory. The European Court of
Human Rights, by virtue of its case law, has expressed the necessity of certain
features that the legal means justifying interference must possess.
As
the European Court of Human Rights also expresses in the case of Rekvényi v. Hungary, the expression “prescribed by law” does not only
identify whether the measure taken is in conformity with a certain domestic
law, but it also necessitates the accessibility of the legal rules to related persons
and the formality of non-conformity results in line with the said rules.
This
means that the law in question will be accessible and coherent; persons will be
aware of the existence of such a norm (e.g., as a published text) and the rules
explaining this law will be clearly comprehended, through the assistance of a
lawyer if needed. In case the legislation restricting the freedom of
association does not possess the features mentioned, the restriction shall be
not be deemed as prescribed by law and indirectly, will be considered to have
breached Article 11 of the Convention.
Legitimate Aim
Having
established that the interference is, indeed, prescribed by law, the European
Court of Human Rights tries to find out whether the interference pursues one of
the legitimate aims expressed in Article 11, paragraph 2 of the Convention. As
mentioned above, Article 11, paragraph 2 provides a limited number of
legitimate aims justifying a restriction. It means that the number of such aims
cannot be increased, and they cannot be supplemented by new ones.
It
should be emphasized that in case the European Court of Human Rights exposes
the fact of non-conformity with one of the legitimate aims in reviewing a case,
it automatically leads to a Court’s conclusion that the interference is not in
line with Article 11 of the Convention.
If,
however, the interference does rest on one of the legitimate aims, then the
European Court of Human Rights will apply a principle of “appropriateness” or
“proportionality” or another expression “adequacy” in order to assess whether
there is a balance between the legitimate aim pursued and the restriction
imposed.
Necessary in a Democratic Society
After
the European Court of Human Rights confirms that the restriction imposed on the
freedom of association pursues one of the legitimate aims provided in Article
11, paragraph 2 of the Convention, it steps into assessing whether the
restriction imposed is necessary in a democratic society. The Court defines
this condition as follows: “”The only need permitting the imposition of a
restriction on one of these rights shall only be to a condition that it is
necessary in a democratic society”
The
expression “Necessary in a democratic society” hints at two conditions:
a)
existence of a serious and pressing social needs; and
b)
the restriction must be proportionate to the legitimate aim in question.
Pressing Social Needs
In
accordance with the European Court of Human Rights case-law, the word
“necessary” implies a pressing social need. In other word, the restriction
places on the freedom of association will comply with a “pressing social need”
in view of one or many aims identified in paragraph 2. In this case, the
Government wins owing to a need factor.
In
assessing whether the State that is a party to the Convention has gone beyond
the extent of pressing social need, the proportionality of the restriction
imposed on the rights and freedoms to the aim pursued is assumed as a key
criterion.
When
the Governments assess the restrictions imposed, it may turn out that the
testing against the principles of legitimate aim and lawfulness may not produce
any difficulty, while the review of the presence of a condition “necessary in a democratic society” in
sifting through the proportionality balance necessitates a more comprehensive
assessment. While assessing necessity in
a democratic society, the ECtHR draws its conclusion by putting into practice
the principles of pressing social need, “appropriate,
convincing and satisfactory reasons” proving this need, adequacy of a
restriction measure, balance between individual and common benefit and
selection criteria.
The
research indicates that sound cornerstones are necessary for any restriction
imposed on the freedom of association to be deemed lawful. In short, while a
restriction imposed on the freedom of association may fall within the framework
of legislation, it will be acknowledged to have breached the European
Convention for the Protection of Human Rights and Fundamental Freedoms unless
it is in conformity with the aforementioned criteria.
Freedom of Association
The Legal Basis of
the Freedom of Association in Public Associations in Azerbaijan
The freedom of association is guaranteed by the Constitution of the
Republic of Azerbaijan and several laws have been adopted in this frame. The
right to engage in association with organizations is regulated by the Law on
Political Parties. The right to establish and join trade unions, which is
deemed as one of the fundamental rights, is regulated by the Law on Trade
Unions. Established as non-governmental organizations and carrying non-profit
and non-commercial functions, the functioning of religious associations is
regulated by the Law on Freedom of Religion and Beliefs. Additionally, the Law
on State Registration of Legal Entities and State Registry embraces
registration procedures, including the state registration of all legal entities
and the state registration of legal entities involving the regulation of state
registry issues.
Establishment
of non-profit organizations, as well as the types, participants, members,
assistants, branches and representations, registration and termination of
non-profit organizations within the framework of the freedom of association
On 13 June 2000, the legislative
body adopted the Law on NGOs (public
associations and foundations) of the Republic of Azerbaijan, which
significantly restricted the scope of work of non-governmental organizations in
Azerbaijan, thus narrowing the range of appeal of Article 58, Clause 2 of the
Constitution, stating, “Every person has
the right to establish a union, including political parties, trade unions
and any other public unions, or to join an already existing union. The free
functioning of all unions shall be assured.” When it was first adopted,
Article 1.2 of the Law would not apply to all non-governmental organizations
and its scope was only limited to public associations and foundations by
proclaiming that, “The definition of
"non-governmental organization" shall embrace public unions and
foundations”. However, the scope of
this Article with the amendments adopted on 17 December 2013 became broader.
Accordingly, the Law embraced the matters
related to the establishment and
operation of branches and representations of foreign non-governmental
organizations. Yet, the limited scope of appeal of the Law did not change.n
We come across one of the first
restrictions imposed by the Law that is reflected in the definitions provided
in Article 2 of the respective law. Paragraph 4 of this Article declares, “Non-governmental organizations shall not be
able to provide financial and any other material support to … political
parties.” In practice, if a public association established to promote
democratic and legal values delivers free-of-charge training to the young of a
political party, teaches them how to use information technologies or train them
on new media, such activities are deemed assistance with a financial value.
This implies that NGOs are prohibited by law to engage in such activities. However, it becomes implausible to explain
the legitimate aim which is taken as a basis for the restrictions permitted by
the law. It is due to the fact that neither Article 58 and Article 71 of
Azerbaijan’s Constitution enumerating permissible grounds for restriction of
human rights and freedoms, nor Article 3 of Azerbaijan’s 2002 Constitutional
Law establishing additional grounds such restrictions and Article 11 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms
ratified by Azerbaijan in 2002 that provides grounds for placing restrictions
on the freedom of association justify such restrictions.
An aspect drawing attention in
Article 2, paragraph 4 pertains to the types of activities NGOs may engage in. “In line with the Electoral Code of the
Republic of Azerbaijan, non-governmental organizations shall be able to
observe, and conduct exit-polls during, presidential, parliamentary and
municipal elections held in Azerbaijan.” The description of this Article
makes clear that non-governmental organizations can neither become observers
nor conduct exitpolls during a Referendum realizing an important amendment to
the Constitution due to the fact that Referendum is not enumerated along with
other elections.
In effect, the free nature of the freedom of association should be
expressed, the limited number of exceptional restrictions that may be imposed
on this right should be provided, and the lawful grounds permitting such
restrictions should be established and it should be eloquently stated that
these restrictions shall be imposed in case they are necessary in a democratic
society. The fact that the kinds of activities NGOs may engage in are
enumerated in the law and other activities that are not mentioned in the law
imply their inadmissibility by law is not logical and contradicts the
prevailing legal norms regulating human rights and freedoms.
The first sentence of Article 3.1 of
the Law on Non-Governmental Organizations of the Republic of Azerbaijan (public
associations and foundations) imperatively states, “A non-governmental organization shall have a name indicating its
organizational-legal form and the
characteristics of its activities.” An artificial impediment standing
in the way of the exercise of the freedom of association as a “lawful
requirement” significantly impairs the existence of the freedom of
association. The absence of words “describing
the character of the activity” is ultimately assessed as violation of
the law, which may lead to the dismissal of a state registration. Thus, this
case can pose a restriction to the right of those to engage in association for
any purpose in the exercise of the freedom of association.
According to an amendment made to Article 3.1 on 30 June 2009, a new
provision was added stating that “The
titles of state bodies of the Republic of Azerbaijan, as well as the names of
Azerbaijani eminent persons (without permission of their next-of-kins and
heirs) shall not be used in the names of non-governmental organizations.”
Legislating this provision and imposing a restriction on the freedom of
association as an imperative norm are in direct conflict with the prevalent
legal norms mentioned above. E.g., the law hereby prohibits persons intending
to establish a literature non-governmental organization for the purpose of
researching and promoting the works of Nizami Ganjavi and use a name “describing
the character of the activity”.
By law, such persons will need to secure “the permission of next-of-kins and/or heirs”, which is impossible.
Additionally, there is no list of names of Azerbaijan’s eminent persons
authenticated with any normative act that would allow those intending to
establish an NGO to refer to this list for obtaining approval from heirs in
identifying names for their NGOs. In another example, a group intending to
establish an organization aimed to monitor the transparency of the Tele-radio Council
Licences shall not be permitted by law. Hence, unlawful and unconstitutional
restrictions are imposed on the freedom of association.
The
amendments adopted in 2013 and 2014 presented serious restrictive provisions in
this direction. The No.1082-IVQD amendments made to the Law of the Republic of
Azerbaijan on Non-Governmental Organizations (public associations and
foundations) on 17 October 2014 introduced four restrictive changes to the Law.
Ten months prior to this – on 17 December 2013, 22 distinct amendments were
enacted to the No.849-IVQD Law of the Republic of Azerbaijan on
Non-Governmental Organizations (public associations and foundations).
This legislative initiative has made the most amendments since 2000 when
the law was adopted. The logic behind these amendments is to narrow the bounds
of the freedom of association, take over the functioning of this sector under
the government control, either
completely terminate or minimize the work of NGOs that are funded through
independent sources and carry out a watchdog function. In order elaborate on
the nature of each amendment, it is necessary to discuss whether these
amendments are in conformity with law and whether such legal changes constitute
any legitimacy.
1.
Since the first
day of its adoption, the aim of this law has not been to regulate the overall
activities of non-profit organizations but to regulate the restrictive
framework of it. However, with the 17 December 2013 amendments this framework
was broadened and issues related to the
establishment and functioning of the branches and representations of foreign
NGOs were also included in the scope of this law. Thus, the Azerbaijan
Republic Humanitarian Assistance Commission, which was previously in charge of
coordinating the work of the branches and representation of foregin NGOs, has
been distanced with the new amendments to the Law. In addition, the relationships and the
activities of international humanitarian organizations that are regulated
through intergovernmental agreements were diminished to the same level (even
lower lever) with local NGOs.
2.
The amendment
made to Article 1.4 of the Law substituted the word “non-governmental” that
used to exist in the prior version with the word “non-profit”. Accordingly,
stating that “This Law shall not apply to
political parties, trade unions, religious associations, local governance
bodies, as well as the entities established to fulfil the functions relevant to
these structures and other non-profit organizations regulated by other laws”implicates
the existence of other forms of non-proffit organizations. In effect, there is
no other Law of the Republic of Azerbaijan regulating the activities of
non-profit organizations in the country. In 2010, the first reading of the
draft Law on Creative Unions and Persons was introduced to the discussion of
the Parliament. Nevertheless, this draft law was not adopted. As such, this
amendment is not a norm holding any practical legal importance and does not
have a sphere of regulation. In the meantime, there are a number of non-profit
organizations that have not been formed as non-governmental organizations but
are professional unions remaining from the Soviet period. Many of these unions
are still funded from the State budget, while their legal status is unclear in relation
to their exposure to the legislation they must be subject to. Amongst them are
Writers Union, Cinemotography Union, Artists Union, etc.
3.
Another
amendment made to the law affects Article 2.2 Clause 2.2-1. The Clause in
question expounds the definition of branches and representaitons of foreign
countries’ NGOs and makes a reference to the Civil Code. Article 53.3 of the
Civil Code regulates this concept. According to this Article, “Representations and branches are not legal
entities and act in line with the statutes approved by a legal entity. The
chairmen of representations and branches are appointed by a legal entity and
acts based upon the power of attorney issued by this legal entity. The deputy
chairmen of the branches and representations of organizations whose founders
are foreigners or foreign legal entities shall be citizens of the Republic of
Azerbaijan.” The recent amendment made to Article 53 Clause 3 of the Civil
Code was also added to the Law of the Republic of Azerbaijan dated 12 February
2010 No. 952-IIIQD. This norm, per se, is controversial and we will
explain it below.
4.
The amendment
made to Article 2.3 of the Law added a sentence which broadened the scope of
the already existing restriction. The prior text of the provision which stated “A non-governmental organization may be
established and start functioning for the purposes not prohibited by the
Constitution and laws of the Republic of Azerbaijan” provided a clear and
coherent norm. A wider window of
opportunities would be exposed to the activities not prohibited by the
Constitution. With the subsequently added sentence, “The establishment and
functioning of non-governmental organizations, as well as the branches and
representative offices of foreign countries’ non-governmental organizations in
the Republic of Azerbaijan that are aimed at forcibly altering the country’s
constitutional order and secular character, violating its territorial
integrity, promoting warfare, violence and brutality, inciting racial, national
and religious hatred shall not be allowed” enumerates restrictions and
substitutes the positive expression in the prior version “…may function” with a negative expression “…the functioning shall not be allowed”. The enumerated factors were indeed
inadmissible due to the fact that these aims “prohibited by the Constitution and laws of the Republic of
Azerbaijan”.Nontheless, the negative expression of it exposes the overall
aim and direction of the Law. The aim pursued through these amendments lie in
narrowing the possibility for functioning as much as possible and finally, to
bring about prohibitive measures.
5.
The word “any”
in the sentence provided in Article 4 “Non-governmental organizations mayt be
established in any legal-organiational form” has been edited and replaced with “in a legal-organizational form established
by this Law”, thus restricting the free choice of legal-organizational form
to the one prescribed by the Law. Accordingly, any legal-organizational form of
establishment has been put into a restrictive frame.
6.
Clause 1 was
added to Article 7.1 of the Law. Amended Article 7.1-1. “A branch or a
representative office may be established by by a non-governmental organizaion
of foreign countries in the territory of the Republic of Azerbaijan” – is a
directly restrictive norm. Every restriction in law must be justified by a
legitimate aim and this must be necessary in a democratic society. The
restriction imposed through this amendment cannot be supported by a lawful
ground and cannot be justified accordingly. In addition, paragraph 7.1 of the
said Article stipulates that “A state registered non-governmental organization
may open its branch and representative office within Azerbaijan and abroad”,
authorizing Azerbaijan-based organizations to open branches and representations
in countries other than Azerbaijan. In this case, it becomes legally unclear
why a local organization is granted such a right while a foreign NGO faces a
number of restrictions in opening its branches and representative offices in
Azerbaijan. Article 58 paragraph 2 of
the Constitution of the Republic of Azerbaijan guarantees the freedom of
association and uses an expression “any person” without being subject to any
kind of discrimination. Accordingly, it does not distinguish between a citizen
and a non-citizen; nor a legal entity is differentiated for being a local or
non-local. Likewise, Article 58 paragraph 2 deems it inadmissible to
discriminate unions by stating, “The free functioning of all unions is
assured”. To this end, this amendment comes out in a direct conflict with
Article 58 of the Constitution. In the meanwhile, we find out that everyone is
equal before the law having viewed the nature of Article 25 of the
Constitution. Here everyone implies the equality of physical and legal entities
under the law. This norm makes it unfeasible the application of a distinct
legal regulation under the legislation.
7.
The nature of
Article 7.4 of the Law on NGOs has been aimed to impose a restriction, which
does not serve for legitimate legal interests. In the previous regulation, the
statement “A branch and representative
office is not a legal entity; it enjoys the assests of the organization
establishing it, and it “acts in accordance with the Statute” approved on its
behalf” was replaced with “it acts in
accordance with the acitivity directions and objectives set out in the
Statute””. Hence, the general scope of activity was narrowed down and
limited to a few number of expressions enumerated. At this point, the goal is
to ensure that NGOs work within a restrictive fraework and stick to the
activity directions provided in their foundation documents. In practice, NGOs,
while applying for state registration, have to enumerate a few activities in
their charters and statutues instead of enjoying a broader range of
opportunities for activities. As a consequence, the path of the civil society
to a broader scope of operation is blocked.
8.
In addition the
aforementioned amendments, Article 7.4.-1 was also added to the Law, which was
mostly aimed at strengthening the control mechanism over the legisltion. The
amendments stipulate to include in the statute of a branch or a representative
office of a non-governmental organization the following information: state
registration data (registration date; number; legal address; the entity
registered by); legal address of a branch or a representative office, rules for
its management, management authorities, and rules for revocation. One more
amendment was added to the 2009 amendment, thus proclaiming, Deputy chairmen of non-governmental
organizations and the branches and representative offices established by
foreign citizens or those without citizenship, as well as by foreign entities
shall be Azerbaijani citizens, while also stating that their term of
authority must be precisely indicated. This norm is a blatent example
discriminating the subjects of the freedom of association and contradicts
Article 58 paragraph 2 of the Constituion stating, “The free functioning of all unions is ensured”. The obligation
that the deputy chairmen of any branch or a representative office, or an
organization established in the country by a non-citizen must be an Azerbaijani
citizen makes it impossible for those organizations to adopt decisions based on
a quality criterion. Furthermore, it gainsays everyone’s right to equality. The
rights of those without citizenships or with foreign citizenships get
restricted under the law, while such a restriction does not have any legitimate
ground and is not in conformity with the grounds provided in Article 11 of the
European Convention for the Protection of Human Rights and Fundamental
Freedoms. That fact that it also provides the duration of authority, per se, contraverts the norms of the
legislation. As such, there are norms
indicating duration of authority in the statutes of non-governmental
organizations with regard to their internal functions. The state entity for registration
acknowledges and maintains one copy of the statute of an organization. Thus,
the term of expiration of charing functions and elected figures of the
registered organizations is a known fact. The term of one person holding
authority may vary based upon the effectiveness of his performance. While a
person can be held in a position longer due to his excellent performance,
another person can be dimissed earlier as that person fails to cope with the
accountabilities he was assigned. The application of such a norm under the law
prevents the free functioning of organizations and contradicts Article 58 of
the Constitution.
9.
By the amendment
made to the Law on 30 June 2009, Article 9.1-1 was added which proclaimed, “A
foregners and a non-citizen holding permanent residence in the Republic of
Azerbaijan may be a founder of a non-governmental organization”. This norm
would apply to founders and legal representatives of representative offices
would be able to fulfil this function without permanent residence. Some
international organizations would assign one person as a legal representative
to more than one neighbour country, thus economizing expenditures. E.g., one
person would be assigned to two countries of the three South Caucasus states as
a legal representative. A person based in Tbilisi would be in charge of the
representative offices both in Georgia and Azerbaijan. However, with the 17 December
2013 changes that added “legal representative” to the Law brought in a
condition of permanent residency that was imposed not only on the founders but
also the legal representatives. This norm, too, aimed to impose restrictions on
the activities of international organizations in Azerbaijan. It also becomes
implausible to justify such restrictions in terms of a legitimate interest.
10. The 17 December 2013 amendments added Article 10.5 to
the Law, which states: “The executive bodies of non-governmental organizations
shall not violate the rights of its members. Any dispute arising between the
organization and its members shall be resolved through a court. If, through a
court consideration, established that the rights of an organization’s members
have been breached, the operation of that organization shall be stalled for a
certain period of time under Article of 31.3 of the Law”. A practical “necessity” for insertion of this
Article in the Law is turn it into a mechanism for public officials to manage
to terminate the operations of organizations by instigating internal conflicts
when they are “not pleased” with the activities of those organizations.
Legally, there must be a number of lawful grounds for repealing the operation
of an organization, including an activity aiming to change the constitutional
order of the country or one of the restrictions provided in Article 11 of the
Convention. Nontheless, we notice here that the breach of an individual’s right
is not concluded with the reinstatement or compensation of that person’s
right. This, however, is resulted in the
termination of an organization’s activity for a year. Given the fact that
dozens of people are employed by a large NGO, and these people receive
salaries, the termination of an organization’s operation leads to the violation
of labour rights of those getting wages at this organization. Instead of
reinstating the rights of those employees and providing compensations, the
legislation makes others unemployed as well and terminates its operation. This
is not a legal regulation method and does not rest on any legitimate legal
ground. Overall, it is a restrictive norm calculated to terminate the operation
of an organization, which contradicts the law.
11. The article titled Assistants of Non-Governmental Organizations
is, in effect, controversial in terms of its expression. The regulation
prescribed in this provision is targeted against legal entities, but eventually
states to involve physical entities, too. Let’s pay attention to the structure
of the expressed statement, which contains an unclear sentence structure: “A non-governmental organization’s
assistants involve physical and legal persons (excluding government and local
government entities) engaged in its activities, and those providing assistance
and various services in line with its Statute” The statement of the
legislator through this expression is unclear. In the meantime, the expression “…engaged in its activities in line with the
Statute” may obviously apply only those who act in line with the Statute.
Considering that physical entities and individuals may get involved in an
organization as volunteers, the Statute in question becomes uncertain in
relationship to the subjects, thus indicating that this norm will be regulated
rightly. The last sentence of the Article stating, “The existence of assistants and their legal status are established
through the foundation documents of a non-governmental organization and in
conformity with “The Law on Voluntary Activity of the Republic of Azerbaijan”” also
aims to place a restriction on non-governmental activities similar to other
norms. In fact, this expression would
be more logical if it was concluded with the expression at the end of the
sentence. Looking for the existence of
volunteers and the source of their legal status in the foundation documents of
a non-governmental organization is similar to searching something that does not
exist at all. It is not required to include a separate norm in the foundation
documents that mentions a voluntary activity, and voluntarism only reflects the
will of founders in the documents of many organizations. It means that founders
aim to engage in association by joining together voluntarily. The nature of
Article 11 does not consist in voluntarism of the founders, but in the
voluntary association of an organization’s members, who are not part of the
founding board and joined the organization at a later stage. In this case, it is normal that no such
provision will be included in the foundation document of an organization. This,
in turn, will become an impeding norm preventing from involving volunteers in
activities. It is due to the fact that Article 11 refers to the Law on
Voluntary Activity and the Law on NGOs in conjunction. Indeed, the more
articulate sentence of this norm should have sufficed following the adoption of
the 2009 Law on Voluntary Activity of the Republic of Azerbaijan.
12. One of the 17 December 2013 amendments made consists
in the last sentence added to Article 12.3. This norm had not existed in the
Law until 2009. The addition of this
norm in the legislation in 2009, and the subsequent renewal of this norm with a
sentence in this content contradict the freedom of association, norms of the
existing legislation and the Constitution. Until 2009, the registration of a
branch or a representative office of a foreign non-governmental organization
would be realized through simple procedures and at the level relevant to local
entities with an exclusion of some technical documentation. With the 30 June
2009 amendment Article 12.3 was added to the Law, which stipulated that the
state registration of a branch or a representative office of a foreign
non-governmental organization might be realized through an agreement signed
with it. In doing this, the legal
process was tied to a political decision-making. Unless there was a political
agreement, the state registration of a branch or a representative office of a
foreign non-governmental organization became impossible. On 17 December 2013,
this norm was tightened more and was decided to impose a term condition on the
political agreement. This, in itself, contributes to the deepening of another
legal problem. NGOs and representative offices, following their state
registrations, may be suspended with the choice of their founding board or
through a court decision. Accordingly, a state registration does not have a
term and its revocation shall only be possible in the presence of a lawful
repeal. The last sentence added to Article 12.3 eliminates the understanding of
an unlimited duration, thus limiting the duration of the permission
characterized as “political permission” to the duration of state registration.
Thus, the political opinion overshadows the legal process.
13. One of the amendments was made to Article 13.1 on 17
December 2013. This Article enumerates aspects necessary to include in the
statutes of non-governmental organizations. The amendment introduced an
expression stating, “established for a
permanent and/or concrete purpose”, which set out a necessity to
significantly narrow the scope of founding goal for an organization. Hence, the
opportunities of NGOs that form their entire operation with grants were
minimized. A grant-seeking initiative for an activity that is not included in
the founding documents of an organization will consequently not supported.
Organizations that attempt to do so will be sued to have violated the rules for
not complying by their goals and objectives. As a result, NGOs will face the
revocation of their registration and other types of sanctions.
Registration of NGOs
In accordance
with Article 16 of the Law on Non-Governmental Organizations (public
associations and foundations) of the Republic of Azerbaijan, the state
registration of non-governmental organizations is carried out by the Ministry
of Justice in capacity of an executive body in line with the legislation of
Azerbaijan on registration of legal entities.
Paragraph 2 of the respective Article sets out the state registration as
a key condition for non-governmental organizations wishing to secure a legal
entity status by proclaiming, “A
non-governmental organization shall only secure a legal entity status upon the
state registration”. Article 7.1 of the Law emphasizes the importance of
state registration for a non-governmental organization by stating, “A state registered non-governmental
organization may open its branches and representatives offices either
throughout Azerbaijan or in foreign countries”. According to Article 3 of the 17 April 1998
Law on Grants of the Republic of Azerbaijan, a grant seeking person in his
dealing with the donor is deemed a recipient and the following are eligible to
be recipients: resident and non-resident legal entities, their branches and
representative offices seeking no interest in profit-making and operating in
the Republic of Azerbaijan, whose chief goal is implement projects and programs
aimed at charities, or fund-raising (these
recipients shall only receive grants from donor organizations prescribed by
Article 2 paragraph 2 and 4 of this Law, as well as from the state registered
branches and representative offices of foreign non-governmental organizations
and the branches and representative offices of foreign non-governmental
organizations that act as donor organizations and were empowered with this role
through the agreement signed in line with the Law on Non-governmental
organizations (public unions and foundations)).
The law that
regulates Azerbaijani NGOs’ grant-seeking activities, which is the only
financial source for their operation, stipulates that non-legal entities shall
not be able to receive grants. This implies that no NGO without a state
registration shall be able to receive grants.
Article 13.2.2
of the Tax Law identifies a legal entity as an enterprise and an organization
as a legal personality based on the Law of the Republic of Azerbaijan and that
of a foreign country. Article 13.2.13 of the same Law sets a requirement that
for the registration of a tax payer it is necessary to have “a state registered name of legal entity”.
Article 106 of the Tax Law, concerned with
compensations and concessions, states that “grants, membership fees and
donations received by non-governmental organizations” are exempt from taxation.
Article 13.2.42 of the Law expresses that “A
non-profit legal entity is an entity established this way under the Civil Code
of the Republic of Azerbaijan” and it is provided for in Article 43.5 and
Article 43.6 of the respective Code.
This provision articulates that “Legal
entities shall be those with activities aimed at generating profit (for-profit
legal entities) and/or those organized for the purposes other than generating
profit and distributing the revenues to its participants (non-profit legal
entities) and that non-profit organizations must be acknowledged as
not-for-profit legal entities.
All the provisions mentioned above point out that the
exercise of the right of association by individuals does not, indeed, occur
under free circumstances. For this to happen, the initiatives of persons
enjoying their rights to freedom of association must be recognized by official
state institutions, registered by the state registry and these persons must be
provided with a certificate. Only after this, an NGO established with this
initiative will secure a legal entity status and will enjoy the rights and
privileges granted to legal entities. Therefore, the registration of NGOs is a
crucial procedure and this procedure should be realized in conformity with
international legal principles and Azerbaijan’s Constitution, thus becoming a
pre-emptive process.
A registration is not a mandatory process for the
exercise of the right of association and for the start of an operation in every
part of the world. E.g., there is no such requirement as state registration in
the domestic legislation for the exercise of the freedom of association in
Italy, Portugal, Belgium, Greece, and Luxembourg. This procedure became a
requirement in Azerbaijan following its accession to the Council of Europe in
2001 – after it adopted amendments to the Law on Mass Media, making it
compulsory those wanting to launch newspapers, TV or journals. Anyone wishing
to start newspaper or a journal may start an operation within one week upon
submission of a notification letter to the Ministry of Justice. However, the
establishment of NGOs has to go through a tougher procedure unlike a print
media entity registration.
Article 16 of
the Law regulates the state registration of non-governmental organizations.
This provision ties exercise of the freedom of association to a system of
authorization. We can see from the practices applied by the abovementioned
democratic states that no such country imposes a system of authorization on
non-governmental organizations through a state registration. However, the
Azerbaijani legislation both through Article 16 of this Law and through the Law
on State Registry and Registration of Legal Entities formalizes an
authorization system through grave provisions. In addition to the cumbersome
registration procedures, there is a long period required for the registration
process which turns out as a serious challenge. While only three working days
are required for the registration of for-profit legal entities, 40 days of
registration period is applied to non-profit and volunteer non-governmental
organizations, which can be extended up to 30 days in case of a need for
clarity. To address issues revealed in the documentations, the founders are
given 20 more days and their organizations can be registered within 10 days
after the issues identified have been resolved. All timelines identified for
the registration of NGOs are regulated under Article 4.5 of the Law on State
Registry and Registration of Legal Entities, stating, “Working days are considered when calculating the timelines prescribe
by Law”. 100 working days imply at least a twenty-week period, which equals
to 140 calendar days. Thus, even in case when the Ministry of Justice issues a
state registration to an NGO without any violation of procedures and by
following the timelines, it may approximately take five months. In practice, these timelines are repeatedly
not followed, and applications for registration are delayed for months or even
years with no registration happening in the end. Research shows that the registration
of NGOs applying for state registration takes place from eight to ten months
after its establishment. This period can be continuous for years for
organizations that do not get registered. No surprising that there a number of
decisions issued by the European Court of Human Rights against Azerbaijan. The
registration of Public Union for Assistance to Homeless Baku Residents occurred
at the end of four years since its establishment and therefore it had appealed
to the European Court of Human Rights. The Court issued a judgment acknowledging
the interference in the freedom of association. The 11 January 2007 decision of
the European Court of Human Rights on the case of Ramazanova and others vs. Azerbaijan (Complaint No. 44363/02) says:
“The Court holds that due to the delay of the state registration of the union,
the complainants who are the founders of the said-union failed to secure a
legal entity status, and this act constituted interference by the authorities
in the applicants’ right of association”. This aspect was especially
emphasized in another decision of the European Court of Human Rights against
Azerbaijan with regard to the freedom of association. In the decisions provided
in the cases of Nasibova versus Azerbaijan and I. Aliyev and others versus
Azerbaijan, we notice the replication of these aspects.
While there is a three-day window system in
place authorising for-profit legal entities to start their operations that run
millions of dollars, however, fifty times more time is required for several
volunteers, who do not carry any serious accountabilities and who do not pursue
any profit-making interest, to engage in association in order to realize their
goals.
The grounds
set in the legislation concerning the rejection of a state registration of
non-governmental organizations should correspond to the grounds permitting the
restriction of the freedom of association. However, one of the grounds set in
Article 11.3.2-1 of the Law on Registration of Legal Entities permitting the
rejection of rejection of state registration is: “if appropriation of authorities of state and local self-government, as
well as state control and examination functions is considered in the charters
of non-governmental organizations”. The ground for a rejection set in the
provision amended on 12 February 2010 does not align with the lawful grounds
established for a restriction in Articles 58 and 71 of the Constitution,
Article 3 of the Constitutional Law adopted in 2002, and Article 11 of the
European Convention.
One of the grounds provided for in Article 11.3.3 of the Law on State
Registration and State Registry of Legal Entities “The titles of state bodies of the Republic of Azerbaijan, as well as
the names of Azerbaijani eminent persons (without permission of their
next-of-kins and heirs) shall not be used in the names of non-governmental
organizations” is a provision replicating Article 3.1 of the Law on
Non-Governmental Organizations (public unions and foundations) of the Republic
of Azerbaijan. In the previous sections, we noted it as a restriction imposed
on the freedom of association that cannot be justified.
The number of regulations prescribed by law and deemed as interference
in human rights and freedoms is very high. Article 2.4 of the Law on
Non-Governmental Organizations (public unions and foundations) of the Republic
of Azerbaijan stating that “Foreign legal
entities may participate in exit polls during Presidential, Parliamentary and
Municipal elections only in conjunction with Azerbaijan’s non-governmental organizations” and the provision
provided for in Article 7.5 of the said Law “The deputy chairmen of the branches and
representations of organizations whose founders are foreigners or foreign legal
entities shall be citizens of the Republic of Azerbaijan” can be
understood as discriminatory in relation to the exercise of the right
recognized to everyone.
Article 11 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms and Article 58 of
the Constitution proclaims the freedom of association as a right recognized to
everyone. This can clearly be noticed in the provision stating,” Every person has the right to establish a union,
including political parties, trade unions and any other public unions, or to
join an already existing union. The free functioning of these unions is assured”. The presence of the expression “every person” prevents the discrimination of citizenship. The
expression “every person” is a concept applicable to all human beings.
Nevertheless, the application of differentiating norms to founders who are
foreigners or foreign legal entities breaches the right to equality provided
for in Article 25 of the Constitution of the Republic of Azerbaijan. According
Article 25 of the Constitution, “Every Person shall have equal Rights and Freedoms irrespective of
race, nationality, religion, sex, origin, property status, social position,
convictions, political party, trade union organization and social unity
affiliation. Limitations or recognition of Rights and Freedoms because of race,
nationality, social status, language origin, convictions and religion shall be
prohibited”.
With the amendments made to the Constitution in 2009,
paragraph 5 was added to Article 25, which considered it contradictory to the
Constitution of the Republic of Azerbaijan if different requirements are
established in an identical regulation by stating, “The equal rights of every person shall be assured in relationship with
the responsible persons for State bodies and state authorities adopting
decisions concerned with rights and duties”. Nonetheless, paragraph 12.3
was added to Article 12 of the Law on Non-Governmental Organizations (public
unions and foundations) on 30 June 2009 and established a different norm for
foreign non-governmental organizations in registering their branches and representative
offices by stating, “The state
registration of a branch or a representative office of a foreign
non-governmental organization shall be realized through an agreement signed
with it”.
It is impossible to comprehend the logic and purpose of the legislation
in these regulations. A legitimate aim or a legal cause for imposing a
restriction on a foreign organization’s activities that must be free to
everyone and for the requirement of a different formality for foreign legal
entities are not explicable and contradict paragraphs 3 and 5 of Article 25 of
the Constitution. The last sentence of the Article regulating the freedom of
association stating, “The free
functioning of all unions is assured” points out the contradiction of
discriminating between local and foreign with the Constitution.
Unfortunately, it has become a continuous
practice to adopt norms in various instances that contradict the general order
of the legislation and harming the nature of fundamental rights and freedoms.
One of such documents is the decision of the Cabinet of Ministers on “the Approval of Rules on Negotiations for,
and the signing of, Agreements for the State registration of branches and
representative offices of foreign non-governmental organizations in the
Republic of Azerbaijan ” that was adopted on 16 March 2011. Through this
decision, rules have been confirmed and enacted to negotiations for, and
signing of, agreements with regard to the registration of branches and
representative offices of foreign non-governmental organizations. Abstract terms and conditions have been set
in these rules under the title “General requirements for launching
negotiations” and it is impossible to justify these requirements in a legal
sense. Paragraph 2.2 of the Rules contains an expression “The Application shall contain information on the organization and its
goals in the Republic of Azerbaijan, as well as the necessity of this activity
and its justified contribution to the Azerbaijani society”, which is a
vague and legally inexplicable requirement that can be open to serious
manipulations and misinterpretations.
Since the registration of a foreign country’s non-governmental
organization is necessary for its operation in Azerbaijan, that organization
must sign an agreement. As part of the
agreement, “the contribution of that
organization’s activity to the Azerbaijani society must be justified”. A
public official may deny a state registration to a non-governmental
organization with an expressed concern on its activity that aims to support
democratization in the country, and this concern may constitute a “lawful ground” not to issue a state
registration. The path to launching negotiations for the signing of an
agreement could be blocked with reasoning, i.e., “failed to justify its contribution to the Azerbaijani society”. This response will be lawful, while it will
result in the imposition of an unfounded restriction on legitimate public
interests and most importantly, on the freedom of association.
Paragraphs 2.5 and 2.6 of the Rules enable
illegitimate interference with the freedom of association.
“2.5 Inquiries are sent to
relevant structures to react with regard to the signing of an agreement
enabling the state registration of a branch and representative office of a
foreign on-governmental organization in case of the absence of required
documents”.
“2.6. if the opinions
gathered are positive, negotiations with the Ministry of Justice are initiated”
This provision makes it clear that a decision will be
taken based upon the results of the opinions provided. The opinions are bound
to create a lawful ground. The understanding of “relevant structures” that will provide opinions is vague and open
to broad interpretations.
“The terms and conditions of
the future activities of an organization in the Republic of Azerbaijan
throughout the negotiations process” have been enumerated under five headlines in
paragraphs 3.2 of the Rules, and the two of these conditions can be questioned:
“3.2.2. To treat respectively
the national-moral values of Azerbaijan;
3.2.4. Not to become involved in political and
religious propagation”;
Placing a condition “respect for national-moral values” to the registration of an
organization is not a legal reason but a requirement open to discussion. As
regard the condition “not become involved
in political and religious propagation”, this question can also be
questioned. E.g., democracy is a form of political regime. The registration of
a branch or representative office of a foreign non-governmental organization
can be deemed “unacceptable” under
this headline and thus become a “lawful”
ground to deny a state registration, given the fact that the main objective of
this organization is to promote democratization and forge democratic governance
skills. A branch or a representative office of a foreign non-governmental
organization registered with a condition that it will comply with these rules
will carry a responsibility in accordance with the legislation of the Republic
of Azerbaijan, in the event it breaches the terms and conditions provided for
in paragraph 3.2 of these Rules. It means that the operation of such a branch
or a representative of a foreign non-governmental organization may be
terminated with a court ruling.
.
Post 2013 and 2014 Amendments Status
In view of the restriction
presented by Article 16 that added an authorisation system for state
registration, we can find out that the 17 December 2013 amendments made to the
Law introduced more restrictions in this frame. Two more paragraphs were added
to Article 16 (parag-s: 16.3 and 16.4) which used to consist of solely two
paragraphs. Amended Article 16.3 contained provisions requiring revision of
foundation documents during the verification process by stating, “If irregularities are revealed in the
foundation documents of non-governmental organizations and of branches and
representative offices of foreign non-governmental organizations, the relevant
executive body shall require those organizations to address these
irregularities and submit corrections within thirty days”. While this might seem as a generic norm at
first sight, however, in practice, it may pose challenges to the legal status
of the previously registered and functioning representations. In the previous
years, there was not a condition of signing an agreement for the registration
of such organizations. To instruct those organizations to re-register is
legally flawed. According to the Constitutional Law on Normative Acts, unless
it is in favour, the amended shall not be applied retrospectively. However,
this norm indirectly creates a new legal situation, requiring organizations to
address the irregularities identified in the foundation documents within 30
working days. Hence, this enables the indirect application of new norms to
everyone with a requirement of aligning the existing documents with the new
conditions set. Following the enactment of this norm, in practice when the
representations of many international organizations are approached with
different reasons (e.g., recognizing the authorities of a legal representative,
or registering the changes to the address, etc.) they are also notified to
address these issues within 30 days.
Article 16.4 as an amendment
to Article 16 of the Law envisages that “For the purpose of suspending the
operation of a non-governmental organization and branches and representatives
offices of foreign non-governmental organizations, a relevant executive body
will be approached”. Accordingly, a new provision on suspension of operation
has been included in the legislation. Through this norm, the Ministry of
Justice was empowered to fulfil with such a function. In practice, the Ministry
of Justice may be appealed to suspend the operation of a branch or a
representative office of a foreign non-governmental organization with which the
government refuses to sign an agreement due to its disapproval of this
organization consisting in monitoring human rights records and preparing
relevant reports. This, in turn, will be characterized as terminating the
functioning of an organization not by exerting pressure but resorting to the
legal means provided by the legislation.
On 17 December 2013, one
more amendment was made to the Article pertaining to the state registration of
non-governmental organizations. This
amended norm was incorporated into the legislation on 10 June 2005 following
the domestic and international requirements. After the first appeal to the
European Court of Human Rights, one of the attempts to improve the legislation
was the necessity to indicate clearly the cases of denials of state
registration in this law. This norm
provided: “The state registration of
non-governmental organizations may only be denied if another organization
already exists under the same title or the documents submitted for registration
contradict the Constitution of the Republic of Azerbaijan, this Law and other
laws of Azerbaijan, or wrong information are provided in the documents
submitted”. Unfortunately, this norm was fully removed from this Law on 17
December 2013 and the following text was added: “17.1. The state registration of non-governmental organizations shall
only be denied based upon the grounds provided for in the Law on State
Registration and State Registry of Legal Entities of the Republic of
Azerbaijan”. While at first view it is feasible to conclude that there is
not a single aspect that can be contested legally, however, there are serious
legal issues. Firstly, the necessity to indicate the cases permitting the
denial of a state registration of an organization or a branch and representative
office has been overlooked. Secondly, the Law on State Registration and State
Registry of Legal Entities which is applied in rejecting registration has also
recently gone through various amendments. Those amendments were mostly of a
restrictive nature. As such, four distinct amendments have been adopted to
several paragraphs of Article 11 of the aforementioned Law that regulates cases
of denials of state registration: two amendments with the 12 February 2010 952-IIIQD Law of the Republic of Azerbaijan;
one amendment with the 30 December 2011 284-IIIQD Law of the Republic of
Azerbaijan; one amendments with the 17 December 2013 848-IIIQD Law of the Republic of Azerbaijan. As noted, the
nature of all these amendments are restrictive. Thirdly, the number of denial
cases enumerated in Article 11 of the Law on State Registration and State
Registry of Legal Entities is more than those in Article 17 of the Law on
Non-governmental Organizations (public unions and foundations). E.g., The
documents submitted may generally contradict the Constitution of the Republic
of Azerbaijan, this Law and other legislative acts based on the following,
constituting grounds for rejection of a registration:
-
when the information provided in the application and/or the documents enclosed
to the application are incorrect;
-
when the objectives, goals and activities of those applying to become legal
entities controvert the domestic legislation;
-
When there is a provision on appropriation of authorities of state bodies and
local self-government in the statutes of non-governmental organizations and
when the statutes envisage controlling functions;
-
When the requirements of the law on protection of company names are violated,
and/or when there is a revealed fact of two companies registered under
identical names; when non-governmental organizations uses the titles of state
bodies, as well as the names of eminent persons of the Republic of Azerbaijan
(without permission of their next-of-kin or heirs);
-
When the shortcomings identified in the foundation documents by a relevant
executive body are not addressed within 20 days;
Evidently,
the grounds for denial of state registration mentioned here are numerous and
many of these grounds are insubstantial. These types of grounds provide a large
judgemental authority to public officials and it facilitates the search for a
ground permitting a denial of state registration. It was not by chance that
NGOs established after 2002 that were denied for state registration due to
awkward reasons started appealing to the European Court of Human Rights. The European Court of Human issued judgments
against Azerbaijan recognizing the violation of the freedom of association many
cases it heard, including: 01 February 2007 Ramazanov, others versus. Azerbaijan;
18 October 2007 Sheyda Nasibli versus. 2008 Ismailov versus. Azerbaijan. Many cases had to go through minor cosmetic
changes in 2005 throughout the communications and many organizations were
registered in order the decrease the number of potential cases to the European
Court of Human Rights. However, the process again started regressing beginning
from 2009 and the registration issue remains as a challenge jeopardizing the
freedom of association. Several researches show the failures of a variety of
organizations through this process. This is even led to people’s hopelessness
towards starting an organization. In practice, those intending to establish an
organization need to provide reference letters from ministries and committees,
which is a blow on the freedom of association. In parallel to the toughened
legislation on non-governmental organizations, the lawsuits lodged against the
NGO sector, arrests, freezing bank accounts, locking of offices, imposition of
restrictions on the travel of NGO representatives outside of the country
prevents independent activists intending to establish their organizations, thus
creating a terrifying impression on these people.
Termination of NGO operation
One
of the amendments made to the Law on 17 December 2013 was Article 19.7. This
law would not apply to the branches and representative offices of foreign
non-governmental organizations. Nonetheless, following the most recent
amendments, the scope of application of the law expanded. Therefore, the new
amendment was added into the Law in the following text: “When a non-governmental organization of a foreign country merges with
another organization or this organization is divided, or it alters its
organiozational-legal form, the branch or representative office of this organization
in the Republic of Azerbaijan is abolished”. Indeed, in case of the
merging, dividing and with an altered organizational-legal status of the
founding organizations, the newly established entity should have been able to
secure the changes incorporared in its registration documents by submit new
documents reflecting the relevant changes in order to continue the operation of
a representative office. In this case,
the immdediate liquidation of a branch is a very radical step and it leads to
the emergence of many other problems in addition to the abolishment of a
representative office. E.g., without giving due consideration to the
implementation of responsibilities of contracted employees of a representative
office as its legal subjects before other entities, the immediate effect of
abolishment cannot be deemed regulatory. Legislators and those creating norms
must endevour to address problems and foresee the regulation of relations.
Application of a radical method to address problems leads to the emergence of
new problems.
The amendment made to
Article 20 that introduced a new sentence: “In case of abolition of a
non-governmental organization, information related to the settlement of
property issues in line with the Civil Code of the Republic of Azerbaijan and
the documents confirming this information are submitted to the relevant
executive body for the state registry of legal entities”. This new provision is
more of a regulatory characteristic. Therefore, I do not see a necessity to
dwevle on this issue any longer.
Article 31.4 of the Law on
Non-Governmental Organizations (public unions and foundations) of the Republic
of Azerbaijan, stating “A
non-governmental organization may be abolished with a court decision if it
receives more than two written warnings and/or instructions on elimination of
irregularities” is in contravention of the freedom of association. As such,
sufficiency of “instructions on
elimination of irregularities” regardless of the elimination of such
irregularities, this provision is a serious legal violation if referred for the
closure of an organization and does not hold a legitimate aim towards the
restriction of the freedom of association.
On 30 June 2009, Article
31.2-1 was added to the Law on Non-Governmental Organizations (public unions
and foundations), which envisaged the issuance of a warning for non-submission
of relevant information required for state registry of legal entities or for
provision of incorrect information. Article 31.4 establishes that a
non-governmental organization can be abolished with a court decision upon the
receipt of more than two warning or instructions on elimination of
irregularities identified. The most enticing aspect of this Article is the
increasing number of warnings issued to NGOs, which proves to be a serious
threat to the functioning of NGOs.
One of the warning cases
relates to instructions by a related executive body on submission of a relevant
report within 30 days after a non-governmental organization has been given a
noitification due to the late submission of annual financial report at a given
time. Unless a non-gpvernmental organization submits a report within this
timeframe, it is held responsible in accordance with the relevant legislation
of the Republic of Azerbaijan.
Another case of warning is
when a non-governmental organization does not notify the Ministry of Justice on
the change to its legal address within seven days. Unless a non-governmental orfanizations
notifies on the change of physical address within this period of time, it
receives a warning.
One more case of warning
relates to events when a non-governmental organization receives a warning
unless it provides a notarised copy of the grant agreement to the Ministry of
Justice within 30 days, which leads to a penalty of AZN 1000 to AZN 2500 due to
non-submission of copies of grant agreements and decisions in line with Article
223.1 of the Administrative Offences Code of the Republic of Azerbaijan.
If each of the
aforementioned cases occurs twice a year, this leads to imposition of
restriction on the freedom of association, or entire elimination of this right,
surpasses the legitimate aims and this sanction against the yardstick of
necessity in a democratic society.
In general, either the Law
on Non-governmental organizations (public unions and foundations) or the Law on
State Registration and State Registry of Legal Entities contain provisions
jeapordizing the freedom of association and eliminating its importance,
restricting the freedom with no grounds, granting limitless authorities to the
executive structures, and entail regulations that do not harmonize with the
conditions relevant to a democratic society and tie the freedom of association
to a system of authorization. Thus, all these regulations need to be aligned
with the best practices from democratic countries.
Activities of Non-Governmental Organizations
Paragraph 4 was added to Article 22 of the
Law on 17 December 2013, proclaiming, “A
non-governmental organization shall not engage in professional religious activities”.
The logic of it is not really clear. Article 2.3 and Article 2.4 of the Law
respectively point out based upon which objectives NGOs cannot be established
and any activity restrictions. Additionally, a resligious activity is not the
one that is prohibited by law. The Constitution assures every person’s freedom
of conscience. In the meantime, Article 48, paragraph 2 of the Constitution
states: “Everyone
has the right to define his/her attitude to religion, to profess, individually
or together with others, any religion or to profess no religion, to express and
spread one's beliefs concerning religion. The elaboration of the expression
“engage in a religious activity” can include expression and spreading of
religious belief and faith. Restriction of a right and freedom, which is
assured in the Constitution, is neither in conformity with a legal principle
nor does it give a due consideration to the requirements of Article 71 of the
Constitution. This Article limits the will of a legislator and does not allow
all branches of the government to introduce more restrictions on the rights and
freedoms provided for in the Constitution. To this end, Article 22.4 added to
the Law is in contravention of Article 48 of the Constitution.
On 15 February 2013, a
completely new article added to the Law constituting Article 24.1. The title of
the Article is donations and grants. Nevertheless, the Article entirely deals
with donations. Economic and legal issues related to the issuance, receipt and
utilization of grants are mentioned to be regulated by the Law on Grants of the
Republic of Azerbaijan. Although this Article was enacted on 15 February 2013,
new amendments followed with high speed. At the outset, the 17 December 2013
amendment introduced the expression “the
branches and representative offices of foreign non-governmental organizations”.
Accordingly, the branches and representative offices of foreign
non-governmental organizations that implement large grant projects and are
experienced in managing large amounts of funds were left face-to-face with the
same problems that local NGOs experienced in registering their donations and
grants. Subsequently, a new norm was added to this Article with the 17 October
2014 1082-IVQD Law of the Republic of Azerbaijan: “A citizen of the Republic of Azerbaijan, or a legal entity registerd
in the Republic of Azerbaijan, or a foreign legal entity’s branch or
representative office (a branch or a representative officer of a foreign
country’s non-governmental organization that has signed an agreement prescribed
in Articled 12.3 of this Law)”. As such, it was established that donations
could be received from this category of entities. Moreover, inclusion of the
grants received or issued by a branch and representative office of foreign
non-governmental organizations operating based upon an agreement signed
indicates the infeasibility of issuing and receiving donations in a different
form.
When this norm was
introduced, amendments of a similar content were simultaneously made to the 17
April 1998 No. 483-IQ Law on Grants. The
introductory Article of the Law on Grants was amended in the following form
with the 17 December 2013 852-IVQD Law of the Republic of Azerbaijan. “This Law regulates economic and legal
relationships pertaining to the issuance, receipt and utilization of grants in
the Republic of Azerbaijan (including subgrants, supplementary grants, as well
as assistances formalized for the purposes indicated in Article 1, section 1 of
this Law, excluding donations)”.
Restrictive provisions associated with donations are presented in
Article 24-1, and all other types of financial assistances are expressed to be
regulated by this law. The definition of “grant” provided in the Law on Grants
went through a serious inspection through the 15 February 2013 No. 560-IVQD Law
of the Republic of Azerbaijan and introduced the following restrictive
provision: “Religious organizations,
non-governmental organizations, as well as branches and representative offices
of foreign non-governmental organizations that do not have agreements
(decisions) on donations or grants, excluding assistances provided by
government agencies shall not be able to accept assistance in the form of
financial means and/or finances in any other form envisaged in the Law on
Freedom of Religion, Belief and Faith and the Law on Grants of the Republic of
Azerbaijan”.
Imposition of restrictions
did not stop. Article 1-1 was added to the definitions section of the Law on
Grants with the 28 October 2014 No. 1095-IVQD Law of the Republic of
Azerbaijan. The amendment said: “Sub-grant
is the funds issued to a third party from the finding received based upon a
grant agreement (decision) in which it has not been identified as a receipient,
through a separate grant agreement (decision) for the purpose of implementation
of this agreement”. Through the addition of this provision, the description
of sub-grants has been expanded. In
parallel, an extensive amendment was adopted to Article 2 of the Law on Grants
with the 17 October 2014 No. 1081-IVQD Law of the Republic of
Azerbaijan. The amendment contained: “International
organizations and their representative offices, foreign governments and their
representative offices, charity, humanitarian development and international
organizations with different public goals, financial-loan institutions, foreign
public organizations involved in development of education, science, health, art
and sports, as well as foundations, associations, federations and committees,
including the branches and representative offices of foreign legal entities
(branches and representative offices of foreign non-governmental organizations
that have signed agreements (decisions) in accordance with the Law on
Non-Governmental Organizations (public unions and foundations) of the Republic
of Azerabaijan) shall be able to act as donor organizations having secured a
grantor status in the territory of the Republic of Azerbaijan. In order
secure the right to issue a grant; an opinion from a relevant executive
structure on the financial-economic relevance of grant is required. 5-1. Rules
for securing a grantor status envisaged in section 5 of this Law are
established by a relevant executive body”.
Paragraph 2 of the Decree
issued by the President of Azerbaijan related to the implementation of 17
December 2014 No. 1081-IVQD Law of the Republic of Azerbaijan that introduced
amendments to the 14 November 2014 No. 346 Law on Grants instructs the Cabinet
of Ministers “…identify rules for
securing grantor status by donor organizations in Azerbaijan by agreeing with
the President of the Republic of Azerbaijan” within two months. While this timeline expired on 14
January 2015, no new regulation has been set out yet. In effect, grant-making
from foreign sources has been desisted. Until the adoption of this norm, there
were foreign grant-issuing donor organizations that did not have any branch or
representative office in the country. Moreover, the various Embassies also used
to provide grants to local NGOs. Thus, after these amendments, only those
organizations that are recognized by the government will be included in the
list of eligible donor entities.
The scope of the definition
of ‘recipients’ was also narrowed by amending Article 3 of the Law on Grants
through the 17 October No. 1081-IVQD
Law of the Republic of Azerbaijan. According
to the new regulation, “organizations
that operate in the territory of Azerbaijan, and whose objectives set in the
statutes are to carry out charity, or implement projects and programs with
grants, or those pursuing to receive grants but with no goals of generating
profits can receive funding from resident and non-resident legal entities,
their branches, representative offices and sections (these recepients can
only receive funding fron donor organizations envisaged in Article 2, sections
2 and 4, as well as the registered branches and representative offices of
foreign legal entities in Azerbaijan (the branches and representative
offices of foreign non-governmental organizations that have signed agreements
with the relevant executive strucute in accordance with the Law on
Non-Governmental Organizations (public unions and foundations)). Accordingly,
non-profit organizations, their branches and representative offices are
prohibited to receive grants from foreign sources that have not signed an
agreement to operate in Azerbaijan. This norm, in fact, already reveals the
list of donors that the Cabinet of Ministers will set. It is not difficult to
assume that this list will be quite limited. In general, the recent amendments
made to the Law on Grants are thoroughly of restrictive nature.
On 17 December 2013, a
series of amendments were adopted to Article 4 of the Law on Grants. The nature
of these amendments was that those receiving grants must apply for registration
of the respective grant. In addition, registration requirement also applied to sub-grants, and cases related to changes
made the already existing grant agreements (decisions), or changes made to the
duration, objectives, and amount of funds of agreements. From this date on,
no bank transactions and or any other
operations would be allowed unless the grants received have been duly
registered. The interesting part of this is that the rule for registration of grant agreements (decisions) must be
registered by the Ministry of Justice according Article 4-2 of the law. This
condition is also reflected in the Decree issued by the President of
Azerbaijan related to the implementation of 17 December 2014 No. 1081-IVQD Law
of the Republic of Azerabaijan that introduced amendments to the 14 November
2014 No. 346 Law on Grants. One of
the problematic issues faced in the recent year, is annulment of the 12
February 2004 decree of the President of the Republic of Azerbaijan on approval
of the rules for registration of grantee (granor) agreements (decisions) that
was decided with the decree No. 240 of the President of the Republic of
Azerbaijan on 24 July 2014. The effective date of the decree was 1 November
2014 and henceforth. The last clause of this decree envisaged that
the rules developed by the Cabinet of Ministers as of 1 November 2014 would
enter into force. Nontheless, the effective power of the prior rules was
repealed without introducing any new rules on 1 November 2014. Another decree was signed by the President to
make changes to the 24 July 2014 No. 240 decree of the President of the
Republic of Azerbaijan on 14 November 2014. According to thei decree,
paragraph 3 envisaging “enter into fornce
the rules to be established by the Cabinet of Ministers as of 1 November 2014”
was called off. In doing so, the legal force of the prior rules ran out and no
norm was established that would establish the date for preparation and
enforcement of new rules. It led to a conclusion that it was a deliberate
action to create a “legal gap”. As the
Law disallows any operations with unregesitered grants and such illegal
operations face high administrative fines, the issuing and implementation of
new grants in a new situation terminated. It seems useless to even discuss the
legal relevance of this norm, as the operations of NGOs, and the branches and
representative offices of international organizations have been legally and
practically ceased. This, per se, is in
contravention of Article 11 of the Eruopean Human Rights Convention, and
Article 58 and Article 71 of Azerbaijan’s Constitution, and does not serve for
legitimate interests. There is no reasonable legal interest that would permit
the restrictions imposed.
The amendment made to
paragraph 4 of Article 24-1 of the Law on Non-Governmental Organizations
(public unions and foundations) on 17 December 2013 points out that the
finances donated shall be acknowledged by non-governmental organizations and by
the branches and representative offices of foreign non-governmental
organizations through a wire transfer into their bank accounts and only AZN 200
of donation may be received in cash. As a result, discrimination is allowed
between not-for-profit and for-profit organizations. While such a restriction
is not imposed on for-profit entities, however, non-governmental organizations
or any other not-for-profit entities, such as branches and representative
offices of foreign non-governmental organizations may not receive donations in
cash. This norm breaches the freeom of
association provided for in Article 25 of the Constituion. Likewise, while the
domestic legislation enables financial transactions both in cash and through a
wire transfer and there is no restriction placed on cash payments,
non-governmental organizations and branches and representative offices of
foreign non-governmental organizations are deprived of this possibility which
is a direction application of discrimination in relation to not-for-profit
entities in a legal sense. Despite the fact that the chief sources of funding
for these entities are grants and donations that are aimed at pursuing the
objectives originally set in their statutes, artificially posed challenges
under the pretext of legal regulation leading to the narrowing of their
activity spheres cannot serve for legitimate lawful aim. It cannot be explained
by expressing concern about transparent operations of NGOs, as these
organizations demonstrate more accountability compared to for-profit entities.
According to the requirement of the existing legislation, these organizations
report to relevant structures and provide relevant documentation as follows:
five reports annually - once in each quarter and once a year; annually ten tax
reports, five state social protection funds reports, and one financial report
if not only they report on a simplified tax system but also as tax payers for
income-making; relevant reports and documentations to the Ministry of Justice
for each change to physical address; holding gathering, grant-making, change to
the duration of existing grant; change to grant objectives, and service
provision per grant received. Overall, a non-governmental organization may
provide more than 20 reports per year.
Paragraph 5 added to Article
24-1 of the Law on Non-Governmental Organizations (public unions and foundations)
as a result of the amendment adopted on 17 December 2013 was re-amended less
than ten days later on 17 October 2014 with the No. 1082-IVQD Law of the
Republic of Azerbaijan. The initial text pointed out that non-governmental
organizations and branches and representative offices of foreign
non-governmental organizations must include information related to the amounts
of donations received and persons provided these donations in the financial
report submitted to a relevant executive body. The next amendment completely
altered the nature of it. The latest version states, “Non-governmental organizations and branches and representative offices
of foreign non-governmental organizations communicate the relevant information
related to the amounts of donations and persons provided these donations to a
relevant executive body in confirmy with a rule established by a relevant
executive body. No bank transactions or any pertinent operations shall be
realized unless relevant information has been reported on such donations”.
While the initial editing of the text sufficed with an annual financial report,
the nature of this Article in its final version turned into a restrictive
character. One of the most serious
problems here is the absence of any condition related to the timeframe for
development of a rule by a relevant executive with regard to the amount of
donations and other information for reporting. The decree issued by the President of Azerbaijan related to the
implementation of 17 December 2014 No. 1082-IVQD Law of the Republic of
Azerabaijan that introduced amendments to the 14 November 2014 No. 345 Law on
Non-Governmental Organizations (public unions and foundations) in effect makes the
consequences of the terminated activities unclear. The last sentence of this
Article does not authorize any operations in the absence of rules to be
developed within unknown period of time by stating, “No bank transactions or any other operations shall be realized on
donations which have not been duly reported”. As such, all activities have been terminated
with this norm in both legal and technical terms. This fundamentally repeals
the freedom of association and restricts any relevant activity.
Article
24-2 was added to the Law on Non-Governmental Organizations (public unions and
foundations) with the 17 October 2014 1082-IVQD Law of the Republic of
Azerbaijan. The Article is titled “Rendering
of services and activities by Non-governmental organizations”. As known,
NGOs are able to engage in commercial activities to a limited extent by law.
This Law envisages incomes generated from sale of goods, rendering of services
and realization of activities prescribed by Article 24.0.3. While previously the tight control system
introduced into the legislation represented an obligation on part of NGOs to
get their donations, gifts or any financial assistances registered, the new
Article also made it compulsory register their service contracts proclaiming, “A non-governmental organization shall
submit the agreements signed for rendering of services or any other activities
funded through foreign sources to a relevant executive body”. Paragraph 2 of the same Article inmposes an
adminisyrative responsibility stating, “A
non-governmental organization providing services without an agreement or with
an unregistered agreement shall be involved in a responsibility in accordance
with the Administrative Offences Code of the Republic of Azerabaijan”.
Hence, unlike other subjects and physical and legal entities, registration of
service agreements applicable to NGOs exposes them to serious legal
discrimination. Through this amendment, practically every step of NGOs will be
possible provided that it secures a state registration. Application of this
norm will result in the replication of legal and practical issues experienced
during the registration of grants also with the registration of service
agreements. While aggrements on grants received from foreign sources have been
submitted for registration, however, no agreement has been registered in
practice for a year and relevant bank operations have been cancelled. Paragraph 1.2.2 of the decree issued by the
President of Azerbaijan related to the implementation of 17 December 2014 No.
1082-IVQD Law of the Republic of Azerabaijan that introduced amendments to the
14 November 2014 No. 345 Law on Non-Governmental Organizations (public unions
and foundations)
instructs the Cabinet of Ministers, by agreeing with the President of the
Republic of Azerbaijan, to identify,
within two months, the rule for registration of agreements on services provided
by non-governmental organizations through foreign funding in accordance with
Article 24-2.1 of the Law on Non-Governmental Organizations (public unions and
foundations) of the Republic of Azerbaijan. While the two-month period set
on14 January 2015 period has expired, no regulation was introduced and it is
unknown when such a regulation will be issued. Thus, it is possible to claim
that similar issues experienced in regitration of grants will also replicate
with the registration of service agreements. In general, similar to grants,
proceeding of service agreements through various procedures, submission for
state registration followed by a translation and notarised confirmation, the
prohibition of bank transactions without any notification from the agency
responsible for state registration, establishment of a serious administrative
responsibility, absence of any responsibility holding public officials for
inactiveness, dependence of NGOs and their entire operations upon state registration
are serious breach into the freedom of association and are in open
contravention of the abovementioned international documents, including Artcile
11 of the Convention, Article 58, 25 and 71 of the Constitution.
The nature of Article 26.4
added with the 17 December 2013 amendment to the Law on Non-Governmental
Organizations (public unions and foundations) of the Republic of Azerbaijan is
contestable analogous with other amendments. The amendment proclaims: “Executive functions of a public union that
have run out their terms of authority shall not be authorised to take decisions
related to activity of the organization and/or sign documents”. While it
could be assumed as a normal approach at first sight, there is a questionable
aspect. Sometimes, not all procedures may take place at a planned time. There
are even cases when new elections are not held timely for elected state
structures. In this case, the recently elected board or persons execute the
same functions until the new elections or election of successors. Moreover,
there are provisions in the statutes of organizations that can bridge this gap.
If, for various objective reasons, the annual assemblies of public unions do
not take place in the time indicated, unauthorisation of their official and
authorised structures and persons and paralysing the operations of such
entities serve to create a legal problem rather addressing such challenges. The
fact that the executive structures of an organization, for an objective reason,
have not assembled according to the timing mentioned in its statute should not
incapacitate it. There could be provided additional period of time for the
formation of new executive structures. The imposition of such harsh regulations
seriously challenge the functionality of public associations joined based upon
voluntary principles.
The purpose of Article 29.5
of the Law on Non-Governmental Organizations (public unions and foundations) of
the Republic of Azerbaijan prepared in new contents on 17 December 2013 is to
create a picture of reassured transparency in the activities of
non-governmental organizations as well as branches and representative offices
of foreign non-governmental organizations. However, the nature of the
imperative norm provided in the last sentence “It shall carry out the measures identified in the relevant
legislation” is not articulate, which is due to unfocused nature of these
measures.
The nature of newly added
Article 30-1 of the Law on Non-Governmental Organizations (public unions and
foundations) as a result of the amendment adopted on 17 December 2013 is all
contestable and aims to control and restrict the activities of non-governmental
organizations, as well as the branches and representative offices of foreign
non-governmental organizations. While the title of the Article represents it as
“Examining the relevance of activities of
non-governmental organizations and branches and representative offices of
foreign non-governmental organizations with their statutes (charters) and the
legislation of the Republic of Azerbaijan”, however, a genuine purpose is
to challenge the operations of these NGOs. It is plausible to notice it in the
Article. As such, according to paragraph 1, a relevant executive structure
determines the relevance of activities of non-governmental organizations and
branches and representative offices of foreign non-governmental organizations
with their statutes (charters) and the legislation of the Republic of
Azerbaijan. With the decree issued by the
President of Azerbaijan related to the implementation of 17 December 2013 No.
849-IVQD Law of the Republic of Azerbaijan that introduced amendments to the 1
February 2014 No. 97 Law on Non-Governmental Organizations (public unions and
foundations), the executive body responsible for this function is the Ministry
of Justice. In order to
inspect the activities of targeted NGOs, the Ministry of Justice has been
granted an opportunity to involve in this work the representatives of the
Ministry and other structures. When the operation of EMDS was terminated in
practice, “the representatives involved” in the cases against the NGO leaders
in this form did not act professionally, misinterpreted the requirements of the
legislation and consequently, “legally contributed” to the punishment of NGOs
and their leaders despite the fact that the respective Article of the Law
stipulates that any impediments to the inspection process shall lead a
responsibility as an administrative offence. Obvously, the goal is impose
restrictions on the work of public unions and other non-governmental
entities.
Responsibilities of Non-Governmental Organizations
On 17 December 2013, Article
31 of the Law on Non-Governmental Organizations (public unions and foundations)
of the Republic of Azerbaijan was introduced thoroughly in a new edition. This
Article was indeed tightened through the 30 June 2009 No. 842-IIIQD Law of the
Republic of Azerbaijan, and two distincts punishments that never existed in the
prior norms were added to the Article. Firstly, it decided to issue a warning
to a non-governmental organization for non-submission or incorrect submission
of pertinent information related to state registration of legal entities.
Secondly, if a non-governmental organization does not submit a financial report
within the period of time set, a relevant executive structure sends a written
warning requiring the submission of the report within 30 days. The legislation
of the Republic of Azerbaijan envisages a responsibility for non-submission of
the required report within the period of time set. The new edition of the
provision also applies such a responsibility to the branches and representative
offices of foreign non-governmental organizations in addition to local
non-governmental organizations. In addition, unless these organizations address
the shortcoming identified within 30 days, their operations will be suspended
for a year through a court decision. There is an abundant number of grounds for
suspension. Impeding the elimination of situations leading to application of
emergency situations and reluctance to address the shortcoming or
irregularities after organizations have been held responsible for not
addressing such irregularities will result in those organizations’ suspension
for one year respectively with the requirement of the Ministry of Justice and
by members of organizations in case of violation of their rights by their
organizations’ executive structures. Meantime, Article 31.7 an organization’s
operation may be renewed prematuraly through the appeal of the Ministry of Justice
or of a person whose right has been violated. However, norms reflecting
punishment, restriction and termination stand out in the nature of this
respective Article of the Law.
Another serious restriction
introduced through this Article consists in the impact of more than two written
warnings or instructions on elimination of violations issued a year to a
non-governmental organization, or a branch and representative office of a
foreign non-governmental organization, which leads to the abolishment of a non-governmental
organization or a branch and/or representative office of a foreign
non-governmental organization based upon an appeal made by the Ministry of
Justice and through a court order.
Similar to other norms, this norm also contradicts the concept of the
freedom of association. As such,
sufficiency of “instructions on
elimination of irregularities” regardless of the elimination of such
irregularities, this provision is a serious legal violation if referred for the
closure of an organization and does not hold a legitimate aim towards the
restriction of the freedom of association. The most enticing aspect of this
Article is the increasing number of warnings issued to NGOs, which proves to be
a serious threat to the functioning of NGOs. One of the cases of warning
relates to the written warning addressed to an organization by a relevant
executive body instructing to submit the relevant reporting within 30 days
unless a non-governmental organization submits a yearly financial report. An
organization that fails to submit the report within this period of time holds
responsibility in accordance with the legislation of the Republic of
Azerbaijan.
Another case of warning
concerns changes to a physical address of a non-governmental organization,
which must inform in writing the Ministry of Justice of this fact within seven
days. An NGO that fails to provide such a notification within the established
period of time receives a warning.
One more case of warning
relates to events when a non-governmental organization receives a warning
unless it provides a notarised copy of the grant agreement to the Ministry of
Justice within 30 days, which results in a warning. As a result, in line with
Article 223.1 of the Administrative Offences Code of the Republic of Azerbaijan,
unless a legal and physical entity in Azerbaijan, and/or a legal entity’s
branch and representative in a donor capacity or as a recepient in the Republic
of Azerbaijan submit copies of agreements and decisions on receipt (issuing) of
grants to a relevant executive authority within established timeframes,
physical entities will have to pay a penalty of AZN 1000 to AZN 2500, public officials will pay a penalty of AZN
1500 to 2500, legal entities will pay AZN 5000 to AZN 7000.
This norm used to envisage a
penalty of AZN 20 to AZN 50 until 12 December 2008. With the 18 December 2008
No. 740-IIIQD Law of the Republic of Azerbaijan, the Administrative Offences
Code was amended and the penalty was increased 50 times, i.e., from AZN 1000 to
AZN 2500. The 15 February 2013 No. 563-IVQD
Law of the Republic of Azerbaijan increased the amount of the penalty
imposed and expanded the scope of category it embraces. Accordingly, officials
will have to pay a penalty of AZN 1500 to AZN 2500, and legal entities were decided
to pay a penalty of AZN 5000 to AZN 7000. While six years ago, the maximum
amount used to be AZN 50, however, this was increased 150 times reaching up to
AZN 7500.
Identical amounts of
penalties are also applied to religious organizations for activities and
operations realized with grants agreements that have not been registered with a
relevant executive authority of the Republic of Azerbaijan.
The
amount of fines for grants received by religious entities, non-governmental
organizations, as well as the branches and representative offices of foreign
non-governmental organizations operating without grant agreements (decisions)
in the Republic of Azerbaijan is even much higher. Through the new norm added to the Administrative Offences Code in accordance
with the 5 February 2013 No. 563-IVQD Law of the Republic of Azerbaijan “officials
face a penalty of AZN 2500 to AZN 5000 and legal entities face a penalty of AZN
8000 to AZN 15000 with the confiscation of the funds and assets being the
direct objects of an administrative offence”.
Article
223-1.4 added to the Administrative Offences Code through the 7 December 2013
No. 850-IVQD Law of the Republic of Azerbaijan imposes a penalty of
AZN 1500 to AZN 5000 on officials, and a penalty of AZN 5000 to AZN 8000 on
legal entities “for the realization of
bank transactions and any other operations by non-governmental organizations,
branches and representative offices of foreign non-governmental organizations
in Azerbaijan and banks on grant agreements (decisions) not registered in line
with the rules established by the Law on Grants of the Republic of Azerbaijan”.
If each of the
aforementioned cases occurs twice a year, this leads to imposition of
restriction on the freedom of association, or entire elimination of this right,
surpasses the legitimate aims and this sanction against the yardstick of necessity
in a democratic society. Moreover, increasing the amounts of penalties by 150
times, which does not reflect the financial and economic grow rate in the country,
cannot be deemed regulatory but restrictive. Following the imposition of high
penalties on organizations for any violation, this action may constitute a
ground for a closure, or having been fined once and even twice leads such
organizations to the termination of their operations. Overall, such a norm is
not in confirmoty with the concept of the freedom of association.
In general, the spirit of
Article 31 does not possess an element of a restriction that can be applied for
other legitimate aims without harming the freedom of association as one of the
fundamental rights. Simply, while administrative offences are brought up, grave
sanctions have taken over the freedom of association. In this context, the
regulation applicable to this Article is neither in line with the international
norms nor is it with the Constitution of the Republic of Azerbaijan.
Four new Articles (340.2; 340.3; 340.4 and
340.5) were added to the Administrative Offences Code through the 17 December
2013 No. 850-IVQD Law of the Republic of Azerbaijan.
Article 340.2 as one of the amendments concern the breach of the
legislation on non-governmental organizations. According to this Article.
Officials of non-gvernmental organizations, and branches and
representative offices of foreign non-governmental organizations in the
Republic of Azerbaijan will face a
penalty of AZN 1000 to AZN 2000 and legal entities will face a penalty of AZN
2500 to AZN 3000 for:
–
implementation of any activities without
state registration of changes (changes to the foundation documents and
subsequent changes to the prior information reflected in the state registry of
legal entities);
–
absence of registry of members by a public
union;
–
not directing the profits generated as a
result of entrepreneurship activity towards the goals of an organization;
–
absence of agreements with persons
involved on voluntary basis; and
–
activities that are in contradiction with
the objectives set out in the statute (charter).
Another amendment
made to the Administrative Offences Code is Article 340.3. According to this
Article, any obstacles created to examining the relevance of activities of non-governmental
organizations and branches and representative offices of foreign
non-governmental organizations with their statutes (charters) and the
legislation of the Republic of Azerbaijan involve an administrative
responsibility. According
to the Article, the Ministry of Justice shall impose a penalty of AZN 1000 to
AZN 2000 on officials and AZN 2500 to AZN 3000 on legal entities for:
–
any obstacles created to examining the relevance of activities of
non-governmental organizations and branches and representative offices of
foreign non-governmental organizations with their statutes (charters) and the
legislation of the Republic of Azerbaijan;
–
non-responsiveness
to inquiries;
–
non-submission
of documents and information required; and
–
provision
of incorrect information.
Another amendment
made to the Administrative Offences Code punishes non-governmental
organizations and branches and representative offices of foreign
non-govenmental organizations for not addressing timely the violations
indicated in the warnings and/or instructions provided by a relevant executive
authority. Accordingly, public officials shall face a penalty of AZN 1000 to AZN
2000, and legal entities shall face a penalty of AZN 2500 to AZN 3000.
According to
another amendment made to the Administrative Offences Code, the violation of
rules for the operation of branches and representative offices of foreign
non-govenmental organizations can be deemed as one of the grounds for
punishment. Physical entities shall face a penalty of AZN 1000 to AZN 2500,
officials shall face a penalty of AZN 2500 to AZN 3000 and legal entities shall
face a penalty of AZN 5000 to AZN 8000 for the operation of the branches and
representative offices of foreign non-governmental organizations without state
registration in accordance with the rules established by the Law on State
Registration and State Registry of Legal Entities of the Republic of Azerbaijan.
All issues constituting a
basis for administrative punishments in each of the amended Artciles through
this regulation in the Administraitve Offences Code are indeed artificially
posed challenges. These austronomic amounts of penalties are aimed to impair
the freedom of association. Presence of a distince regulation with regard to an
identical issue and identification of a different responsibility for the
fulfilment of similar functions are in remarkable contravention of paragraph 5
added to Article 25 amended to the Constitution in 2009. According to the
Constituion, “Every person’s equal rights
shall be assured in relationships with state bodies taking decisions related to
rights and duties and the subjects of government authorities”. While Article 240-3 of the Administrative
Offences Code envisages a penalty of AZN 3000 to AZN 5000 for
non-responsiveness of non-governmental organizations and branches or
representative offices of foreign non-govermental organizations in the Republic
of Azerbaijan to the inquiries of the Ministry of Justice, Artcile 181-3.3 of
the same Code sets a penalty of AZN 300 imposed on the Ministry of Justice for
denying to admit written inquiries addressed by non-governmental organizations,
and branches or representative offices of foreign non-governmental
organizations, as well as citizens. A
difference in a similar matter is by ten times, which overtly points out the
fact that the laws do not serve for the rule of law and justice.
Proposals
As the nature of Article 58 of the Constitution
displays, the legislation regulating the right of association that includes the
Law on Non-Governmental Organizations (public unions and foundations), Law on
State Registration and State Registry of Legal Entities, Law on Grants, petinenet
norms of the Administrative Offences Code, the decrees of the President of the
Republic of Azerbaijan in this direction and the relevant decisions of the
Cabinet of Ministers should be monitored and again elaborated in view of the
aforementioned legal problems. Article 58 of the Constituion protects the
freedom of association in broader terms and it does not envisage any
restrictive legal procedures for the exercise of this right. Envisaging a procedure in the Law, which is
not prescribed in the Constitution and the presence of of a number of
restrictive norms in these, procedures contradict the nature and spirit of the
Constitution. By law, the regulation of the freedom of association cannot be
framed under certain procedures. However, these procedures should not contain
norms restricting the freedom but those facilitating the exercise and
regulation of this right.
- With the
involvement of the public respecting democratic values (with active
participation and expressed consensus of NGO sector, political parties,
media representatives and independent experts), the legislative norms
regulating the work of NGOs and foundations, public unions and non-profit
organizations should be developed again, the norms existing in the
existing legislation and those introduced subsequently that aim to impose
restrictions on freedoms and bounding their exercise to complicated
procedures should be removed, and the freedoms should be enshrined in the
legislation reflective of the international legal norms to which Azerbaijan
is a party, the case-law of the European Court of Human Rights and the
opinions of international organizations, including those of the Venice
Commission.
- In the
absence of a norm envisaging the exercise of the freedom of association in
the Constitution upon the relevant authorisation of a relevant executive
authority, the procedures for state registration of persons intending to
exercise their freedom of the association by creating an NGO, as well as
branches or representative offices of foreign non-governmental
organizations should be simplified; the registration of non-profit
entities should be altered to a notification system similar to that of
print media. Any legal and physical
entity and/or a group of entities,
with a prior permission, should be able to engage in association and in
doing so, they should be able to launch their operations after a certain
period of time (a maximum of one week) having notified a relevant
executive authority. The relevant executive authority should issue a state
registration to that organization and present a copy of the certificate to
the founders of the organization ruling out the presence of a legal entity
already registered under an identical name. In all cases, an organization
should be able to legally launch its activities within one week.
- The norms
provided for in the Law on State Registration and State Registry of Legal
Entities should be thoroughly revised; state registration should be
substituted with a simplified form of a notification system; the norms not
resting on legitimate legal aim should be nullified.
- A template
of Statute for NGOs and Foundations should be approved in accordance with
the Law on Non-Governmental Organizations (public unions and foundations)
of the Republic of Azerbaijan; this Statute should establish a unified
form of management applicable to either unions or foundations; all NGOs
should adopt a system of management in line with this form. Thus, the
appearance of a claim on inconsistency of Statutes with the legislation will
be prevented. Additionally, such a template of Statute shall contain the
lawful grounds permitting the freedom of association as provided in the
Constitution of the Republic of Azerbaijan and the European Convention for
the Protection of Human Rights and Fundamental Freedoms. Accordingly, this
framework should be deemed as a pre-established boundary for activities
acceptable to everyone. The
template of Statute should ensure a freedom for NGOs to choose activity
directions that are consistent with the law, thus assuring lawful
operation of NGOs.
- All
existing norms impeding the operations of non-profit entities, and the
branches and representative offices of foreign non-profit entities should
be eliminated; the registration system applicable to grants and donations
should be abolished; information related to the grants and donations
received should be made available in annual financial reports; no bank
transactions of grants and donations should be dependent upon any
preventive condition; and both in-cash and wire transfer system legally
applied in payments of grants and donations should be made feasible. All
norms preventing the free operation of donor organizatons should be
eliminated. No restriction should be placed on the operations of foreign
non-governmental organizations, and branches or representative offices of
foreign non-governmental organizations functioning in Azerbaijan, and such
a type of discrimination should be inadmissible in the legislation.
6.
The termination of an NGO activity shall be made
possible only through a court order:
·
The ground permitting the termination of operations
should be provided for in the Constitution, articulately prescrived by law,
allow to notice restrictions in advance and should not contain unspecified
expressions and norms open to misinterpretations;
- The purpose and outcome of lawful
aims permitting the termination of operations should be endorsed by one
or several legitimate interests enumerated in Articles 3.5 and 3.6 of the
Constitutional Law on Regulation of Human Rights and Freedoms in the
Republic of Azerbaijan, as well as those mentioned in paragraph 2 of
Article 11 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms for national security, territorial integrity,
public order and safety, prevention of disorder or crime, protection of
health and morality and for the defence of the rights and freedoms of
other persons;
- Termination of operation should only
take place it aims to protect the most important values necessary for the
existence of a democratic society and its application is deemed extremely
necessary in a democratic society. To put it more articulately, such an
action should be possible only in case other reasonable and rational
means restricting the freedom of association to a lesser extent for the
protection of legitimate interests have exhausted;
·
Termination of an NGO operation or imposition of other
penalty sanctions should be proportionate with the freedom of association.
Accordingly, the advantage taken from the protection of a legitimate public
interest should more than the harm made to the freedom of association
(considering the sanctions to be applied).
- The
articificial reasons justifying the termination of an NGO operation should
be removed from the Law. Any written warning issued, or an administrative
punishment imposed should not constitute a singlehanded ground leading to
liquidation of operation of an NGO. The amounts of administrative
penlaties should be re-established according to those applied until 2008,
and the huge penalties imposed on NGOs that do not pursue any commercial
interests should be removed from the Administrative Offences Code.
- The
activity scopes of NGOs should not be restricted in by law without any
lawful ground. The stipulation of activity types that an NGO may engage in
indirectly serves for imposition of restrictions. The selection of such a
method is inadmissible.
9. With an exception
of an inadmissibility of registration under indentical names, the presence of
norms concerning the names, including a requirement for an NGO to harmonize its
goal with a chosen name is a reason restricting the freedom that does not rest
on one of the lawful grounds. The
existence of such restictions in the legislation is inadmissible.
10. Direct and
associated legal normative acts regulating the operation of NGOs sgould be
re-reviewed; the provisions of such acts should not challenge the work of NGOs
and should be of a regulatory nature;
11. Encumbering procedures existing in the
legislation for the registration of branches and representative offices of
foreign legal entities should be simplified; a requirement to sign an agreement
should be ended; and application of equal rights between foreign legal entities
and local organizations should be ensured. In addition to the procedures required
for local NGOs, a certified copy of a document confirming the legal operation
of an organization in the country of origin and that organization’s decision to
open a branch or a representative office should suffice for state registration
of a branch or a representative office of a foreign legal entity. Yerli
QHT-lər üçün tələb olunan proseduradan əlavə, xarici hüquqi şəxslərin filial və
nümayəndəliklərinin qeydiyyatı üçün öz ölkəsində hüquqi baxımdan fəaliyyət
göstərdiyini təsdiq edən sənədin təsdiqlənmiş surəti və təşkilatın nümayəndəlik
və ya filial açmasına dair qərarını təqdim etmək yetərli olmalıdır. The
decision No. 43 of the Cabinet of Ministers on “the Approval of Rules on Negotiations for, and the signing of,
Agreements for the State registration of branches and representative offices of
foreign non-governmental organizations in the Republic of Azerbaijan” that was adopted on 16 March 2011
should be abolished and government opportunities for imposing restrictions at
this level should be eliminated.
- Actions placing
restrictions on the freedoms of NGOs, posing artificial impediments to
their legal operations, regardless of those committing such actions,
should involve administrative and criminal responsibilities. Accordingly,
new Artciles should be added to the Administrative Offences Code and
Criminal Code; public officials and entities committing illegal actions or
inactions obstructing the work of NGOs and illegally restricting their
rights and freedoms should be involved in administrative responsibilities,
or criminal responsibilities in the event these actions are committed
deliveretely and through the use of violence.
