ON EARLY PRESIDENTIAL ELECTIONS IN AZERBAIJAN
11 April 2018
ASSESSMENT DOCUMENT BY THE CIVIL SOCIETY
BAKU - 9 April 2018
I. SUMMARY
While the authority to call early elections belongs to the President, which formally looks like a legal act, this right illegitimate in terms of constitutionalism principles.
Taking into account that election environment and electoral legislation do not provide guarantees for free and fair elections, and do not comply with international standards, the decision to hold early elections without providing reasonable justification to the society caused main oppositional forces – National Council, Musavat Party and REAL - to protest against it by not participating in the elections. As a result, the elections are being held in a political environment without alternative and dominated by one party (YAP).
Early elections coincide with the period of continuation of political tension and pressure in the sphere of human rights and freedoms following presidential elections of October 9, 2013. Immediately following the last presidential elections the political rights and political environment was seriously restricted in Azerbaijan, prosecution and pressure on political opponents increased. Since that period civil society institutions, independent media and oppositional organizations became a target of political pressure. The recent report released by the Working Group on Unified List of Political Prisoners lists 142 persons.
Freedom of assembly was completely limited in the country; the rallies of opposition (National Council and Musavat Party) are permitted only in semi-closed “Mahsul” (Harvest) stadium. Those who wanted to attend these meetings usually faced artificial barriers, the police demonstratively made video recordings of the attenders and based on those videos the participants, or their relatives faced various forms of pressure. The practice of administrative arrests of activists under different excuses aiming to prevent rallies, has become widespread.
Despite repeated official appeals an opposition movement REAL was not provided with a venue to hold a congress to establishment a party.
The escalation of the practice of systematic pressure on independent civil society structures since 2014 paralyzed NGO sector. Criminal cases launched since 2014 against independent NGOs and some international organizations cooperating with them are still pending. Related arrests were made also in 2017. Prominent civil society representatives of the country – lawyers, journalists, public and political activists were banned from leaving the country, bank accounts of some of them are still blocked. Activities of foreign (Western) donors are almost prohibited in the country. Authorized state structures refuse to register projects (grant agreements) supported by those organizations.
Election Code (EC) regulating the elections entered into force on 27 May 2003. More than 200 articles of the EC have been amended in recent 15 years. These changes were mainly of the conservative nature. A number of progressive norms were taken out of the EC. This process was implemented without consulting and ignoring the opinion of alternative political forces, civic organisations specialized in elections and international election missions.
As result of amendments made to the EC in 2008 and 2010 the election campaign period was reduced from 60 days to 23 days, prohibition of campaigning opportunities on state television and radio significantly limited normal campaigning opportunities and gave an obvious superiority to the representative of the ruling party in comparison with others.
According to the EC the registered candidates were given free air time on ITV (public) and Public Radio 3 hours a week. Observation of the organized debates show that participation of the candidates at the elections has a “permitted” and formal character and majority of the candidates does not even hesitate to openly support the candidate from the ruling party. This demonstrates that the elections are completely non-competitive and without political alternative.
Parliamentarian majority de facto has majority of votes in all election commissions. While observing activity of the current commissions, one cannot hear any different opinion, or see a representative voting against a decision during adoption of decisions. As a result, election administration totally lost public confidence in its impartiality and neutrality.
According to information of the CEC, there are 5,192,063 voters in the national voter register. However, this figure significantly differs from the figure presented by the State Statistics Committee. According to the information presented by the latter, there are 7.1 million persons in the country who are above 18 years old. And thus, a serious discrepancy exists in figures released by the above-mentioned state bodies regarding the number of voters in the country. Despite the concern of some election stakeholders including local NGOs, media representatives, as well as OSCE/ODIHR Election Observation Mission (EOM), the above mentioned structures did not provide explanations to the grounds of these discrepancies.
Although censorship existed in internet before 2013 presidential elections, it was not as strict as currently. After the amendemtns to the law on Information and Information Protection in 2017 several independent media resources have been blocked. The pre-election media environment is assessed as alarming by domestic and international organizations. It significantly affects the role of media in the democratic society, including the election process, given the fact that pressure on opposition media, journalists, bloggers, and social network activists intensify.
Due to serious legislative limitations faced by civil society, hard operational environment and lack of access to independent financial resources local independent NGOs, which have experience in elections were deprived of observing this elections.
On 30 March 2018, the OSCE ODIHR EOM's first interim report was published. Although the report contained a number of problems, generally, those who prepared this document have presented an assessment, which is inadequate to the situation and cautious. This has raised criticism from the local civil society. The assessments made in previous reports of this organization were tougher, and the election environment has not improved, but instead worsened between last elections and now. Civil society is frustrated by the fact that negligence of such international organizations carrying out election observation increase the government’s manipulation opportunities.
Mission of the Parliament Assembly of the Council of Europe (PACE) will also observe the elections. However, local and international community has serious doubts about objectivity and professionalism of PACE’s observation mission.
The European Court, in its many rulings on Azerbaijan, stressed that investigation of complaints in election commissions and courts was conducted inefficiently. These complaints are related to serious violations of the law during registration of the candidates, cancellation of registration, campaign period and voting day. The election commissions did not conduct effective investigation regarding them.
The Committee of the Ministers of the Council of Europe considered that the Government’s work related to implementation of the ECHR decisions regarding election complaints was insufficient. Its recommendations are still not implemented.
The constant conduct of elections in this particular way, not honoring recommendations and calls of OSCE and other influential international and local organizations resulted in a situation when election, which in fact is a main component of democratic process and a non- violent procedure of forming the government, has lost its importance as an institutional tool.
II. THE BASIS OF EARLY PRESIDENTIAL ELECTIONS
On February 5, 2018, President Ilham Aliyev ordered extraordinary presidential elections in the country and put forward October election 6 months ahead. The order referred to item 1 of Article 101 of the Constitution and Article 179 of the Electoral Code. It could seem legitimate at first glance, whereas president’s possessing such an authority is controversial.
Actually, the root of the problem stemmed from September 26 2016 referendum which had legitimate basis. This norm provides the president with the authority to announce extraordinary presidential elections. Prior to referendum Article 105 of the Constitution said extraordinary presidential elections could be held in case if the president left his post. The stipulation of the president to leave his or her post is identified in article 104.
Authorities of the President in the Constitution are set out in Article 109 and the bases of the presidential election are set out in Article 101.After the referendum, to provide the person who executes the power of the President to determine the basis of the presidential election is totally inconsistent with the principle of separation of power and significantly weakens the balance between the branches of the power.
Since item I of Article 101 does not states the terms and conditions of the announcement of extraordinary elections, as well as the scope of the circumstances and grounds for which the president may exercise his authority, opens wide opportunities for abuse of this right.
For example, even if the scope of circumstances of Article 98.1 which was adopted with the referendum act is controversial, the grounds for the abolishment of parliament has been defined.
At the same time, providing unlimited authority to the subject, who is interested in announcing extraordinary presidential election is incompatible with the principles of the rule of law and can not be regarded legitimate from the point of view of a democratic society.
President can preside extraordinary elections at the best time for him (for example, when his ratings are high) and increase the term of office.
On the other hand unclear scope of authority given to the official person raises questions about the quality of the law and the validity of its application. This, its turn it violates the principles of prejudice and legal certainty and can lead to arbitrariness and strengthening of authoritarian governance.
Thus, amendment to the Constitution, the supreme law document, via the referendum act of 26 September 2016, has created a legitimate problem: it changed the existing political system and the balance of power and provided the executive branch with absolute power, it was put to the vote without any public debate and public discussions, and was adopted hurriedly without any social necessity.
Timely concerns of civil society members1 were not taken into consideration and the results did not change. Human Rights Committee of United Nations Organization2 and Venice Commission of Council of Europe3 have expressed their concerns in the above-mentioned context as well.
Thus, formally the authority owned by the president to appoint an extraordinary election and the decisions looks like the legal action, however, it is not legitimate in terms of democratic constitutionalism.
1 https://www.amerikaninsesi.org/a/referendum_stp/3543894.html 2http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhshv33kpjIN1yQcFlNQG eFnqM5IxR4PQMZWvxmoWXyTsshELrTf%2fHJH%2fqsIqI6FD8OFwu28r7iZSlAYRm9fDeUVCTGadLoglKdYRd4jrLMRr a 3 http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-PI(2016)010-e II. PRE-ELECTION PERIOD
A. POLIRICAL CONTEXT
Since the 2016 referendum, Azerbaijan possesses a very strong presidential administration system and the president has been given a vast authority. President is authorized to:
- appoint the head of Cabinet of Ministers and all executive structures at the central and regional level
- to nominate the judges of all courts, including the Constitutional Court, as well as the Prosecutor General's candidacy to the parliament.
- to abolish the Parliament (when it does not support his nominees) and announce the new extraordinary parliamentary elections.
In 2009 the amendments made to the Constitution eliminated the limitation preventing one person to become a president more than twice. In 2016 five-years – limit was replaced to seven years for individual purposes.
Despite the public demand to reforms which required more flexible and less cost-effective management, in addition, the two government agency repeating each other’s function (President and cabinet of Ministers) one more executive body- vice-presidential institute was created. Thus, the executive body of the government was divided between three branches. In addition, contradicting to the requirements of the corruption legislation4 I.Aliyev has promoted her spouse to a high government post.
The order of the extraordinary presidential elections did not give any explanations, however government officials told the order aimed to avoid the overlap of some international events (Baku International Humanitarian Forum, 31 March Genocide, a series of events marking the centenary of the establishment of the Azerbaijan Democratic Republic, Formula 1) which were going to be held in the second half of the year.5 Shortly after the officials told to OCSE and ODIHR and EMS that this decision was very important since presidential and parliament elections could overlap in 2025.6
Even though the comments about the change of the time of presidential elections were repeatedly denied7 by the authorities, after the referendum, sudden announcement of the early presidential elections which was announced without open and public discussions in the parliament, complicated the participation of potential candidates and all stakeholders, and made the preparation of observers much more difficult.
4 http://www.e-qanun.az/framework/5809 5https://azertag.az/xeber/Ali_Hesenov_Novbedenkenar_sechkilerin_kechirilmesi_haqqinda_Serencam_Konstitusiy anin_ve_olke_qanunvericiliyinin_teleblerine_tam_uygundur-1134206 6 https://www.osce.org/odihr/elections/azerbaijan/376570?download=true 7 http://www.mia.az/w248834/details/ Since there is no free election environment and the regulations does not guarantee free elections in the country, also because of non-compliance with international standards, the main opposition bloc and parties like National Council for Democratic Forces, The Musavat Party and the Republican Alternative Movement which is headed by Ilgar Mammadov, the chairman who is kept in prison more than 5 years on political motivations despite the decisions of ECHR8 about his release, was prevented from participating in the presidential election refused from attending in presidential elections. As a result, political alternativeness emerged in the presidential elections where main opposition candidates did not participate. Nevertheless, eight candidates were officially registered at the elections. The elections are not held in a competitive environment, the candidates who are presented as alternatives to the president do not present an alternative platform and their open support to current president confirms the above-mentioned thoughts once again.
Thus, the extraordinary presidential elections will be held on April 11 take place in a political environment dominated by one party (NAP) in all spheres. Acting President Ilham Aliyev is a candidate for the fourth term office and for the next seven-year term.
B. POLITICAL ENVIRONMENT
11 April elections coincide with the oppression, political tensions in the sphere of fundamental freedoms and human rights, which have been continuing since October 9, 2013, presidential elections. Immediately after the recent presidential elections in Azerbaijan political rights and activities were severely restricted, persecution and pressure on political opponents expanded.9 Since then civil society institutions, independent media, and different organizations have become the target of pressure policy.10 The local offices of numerous international NGO’s operating in public and media sector have been shut down, their bank accounts were frozen, equipment was seized and activities were suspended. The ways foreign donors provided grants to local NGO’s were legally blocked.
In this background, the Working Group on Unified List of Political Prisoners consisting of human rights defenders, field’s experts, lawyers and public figures has prepared the list of 98 political prisoners and prisoners of conscience on August 12, 2014. Political prisoners were determined based on the criteria of Resolution 1900 of the Parliamentary Assembly of the Council of Europe (PACE) issued on October 3, 2012. Subsequently, some of them were released under pardon orders and court rulings, but the trend continued, and there were new
81.https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22\%22ILGAR%20MAMMADOV%20v.%20AZERBAIJAN\%22 %22],%22itemid%22:[%22001-144124%22]} , 2.https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22\%22ILGAR%20MAMMADOV%20v.%20AZERBAIJAN\%22% 22],%22itemid%22:[%22001-178631%22]} 9 https://www.irfs.org/wp-content/uploads/2016/07/Shrinking-Space-for-Civil-Society-in-Azerbaijan.pdf 10 https://smdtaz.org/wp-content/uploads/2017/08/SMDT_Ara%C5%9Fd%C4%B1rma-S%C9%99n%C9%99di- Az%C9%99rbaycanda-V%C9%99t%C9%99nda%C5%9F-C%C9%99miyy%C9%99ti- T%C9%99%C5%9Fkilatlar%C4%B1n%C4%B1n-F%C9%99aliyy%C9%99tin%C9%99-H%C3%BCquqi- M%C9%99hdudiyy%C9%99tl%C9%99r.pdf arrests. The recent report of the Working Group on Unified List of Political Prisoners says the number of political prisoners has reached to 142.11
Restrictions on freedoms and continuation of political prisoner problem were reflected in the report of Amnesty International issued in 2017/2018.12
C. FREEDOM OF ASSEMBLY
1. Legal framework
While evaluating the state of the law, it should be noted that the Constitutional norm regulating the freedom of assembly in the first text seems satisfactory, however, use of the freedom in Article 49 was attached to a stipulation by the 26 September 2016 referendum and it says the freedom of assembly is possible without prejudice to public order or social morality.
The Law on Freedom of Assembly, adopted on November 13, 1998, refers neither the Constitution nor the Constitutional Act adopted in 2002. It does not meet the requirements of Article 11 of the European Convention, which was ratified by the Parliament of Azerbaijan in 2001.
Over the past period, European Court of Human Rights has ruled against Azerbaijan, in several cases recognizing illegitimate interference in the right to freedom of assembly.13
Administrative penalty determined according to the right of free assembly
Along with limiting access to the right to freedom of assembly, those who want to exercise this right have been subjected to serious penalties. The most important point here is that in 2012, the maximum penalty limit was 13 AZN in the Code of Administrative Offences, but this amount was exceeded up to 30,000 AZN. In other words, the sanction of an article was increased 2307 times. On March 1, 2016, the Code of Administrative Offenses was adopted in a new text and entered into force. Additionally, public works up to 240 hours administrative detention up to 2 month have been added to the sanction of the Article.
Along with keeping grave penalties, Article 513 which was added to the Code of Administrative Offences on March 1 2016, emphasizes violating the rules of holding meetings may constitute a criminal offense.
Article 169 of the Criminal Code also stipulates criminal responsibilities of freedom of assembly. Thus criminal proceedings are instituted under the arrangements violating the rules of holding meetings when holding, or participating in such meetings can lead to an essential infringement of the rights and legitimate interests of citizens.
11 https://www.humanrightsclub.net/en/prisoners/2018/707/ 12 https://www.amnesty.org/en/countries/europe-and-central-asia/azerbaijan/report-azerbaijan/ 13 http://supremecourt.gov.az/uploads/files/avropa-mehkemesi/abbasli_ve_bashqalari_azerbaycana_qarshi.pdf Although the term “essential infringement” is not clarified the sanctions of this Article stipulates limitation of freedom up to 2 years. In October 2017, restriction of freedoms up to two years was added to these criminal sanctions.
2. Freedom of assembly environment
Freedom of expression has been restricted countrywide, sometimes the opposition (National Council of Democratic Forces and the Musavat Party) is given the opportunity to hold rallies in the half-closed “Mahsul” stadium. During the rally there were artificial obstacles to those who wanted to take part in the rally, the police has openly recorded the videos of those who came to the rally, after these video recordings the citizens faced different types of oppression, they were summoned5, to the police departments, even some of them were dismissed from their job and then the protesters were summoned to the police departments14 and some were dismissed.15
Despite the repeated appeals since last year Initiative Group of Republicans Alternative Movement was not allocated space to hold Constituent Congress, the attempts to hold the congress in the private enterprises were prevented by all means.
Various political parties and independent NGOs don't possess offices in Baku and their activities are continuously restricted in the regions. In addition, it has become impossible to hold public meetings conferences, debates etc. and this type of meeting have faced strict restrictions. Only NGOs controlled by pro-governmental figures possess limited and controlled opportunities and governments allocate them money from budget-financed funds. In this way the government manipulates the situation of human rights and public opinion about the elections in its favor.
Thus, despite the calls of international organizations and local public-political organizations, the elections are happening in the political environment characterized by lack of dialogue between the ruling party and the main opposition forces and civil society.
D. Civil Society
1. Legal framework
A total of 26 different restrictive norms and changes were made and added to the Law about NGOs: 22 of them were done on December 17, 2013, and 4 changes were made on October 17, 2014. The most numerous changes since the adoption of the law, since 2000, were made between this time slots.
Restrictive amendments and changes were made to the Law "On Grant", "On State Registration and State Registry of Legal Entities" and Code of Administrative Offenses. The vast majority of amendments and additions bring the freedom of association established by law dependent on the administrative permission. According to the amendments registration of the grants and the
14 https://www.youtube.com/watch?v=fhHczXhlR1c 15 https://www.youtube.com/watch?v=4kPMClwzb-A donors is vital and after this provision was brought into law, the Cabinet of Ministers approved the Rules of Grant Registration.
These regulations were compiled according to the President’s order in 2016 on the implementation of a single window system. These regulations are beyond the law and since limitations in the abovementioned law exist, it does not permit any softening to the solution of the problem.16 Thus, being deprived of receiving grants numerous NGOs have been artificially kept away from establishing a transparency control mechanism over an election.
2. Public environment
According to unofficial numbers, there are about 3500 NGOs exists in Azerbaijan. 2500 of them have been officially registered, more than 1000 NGO have not been registered. 150 of them have applied to the local courts. About 70 NGOs have applied to ECHR to defend their rights.
Over the past four years since the 2013 presidential election, parallel with limited restrictions on the legal framework in the pre-election environment, the activities of independent civil society organizations in the country have been paralyzed, and their future capabilities have been brought into the uncertain situation. The criminal case had been launched against a number of NGOs by Grave Crimes Investigation Department of the Prosecutor General’s Office since 2014 still remains open. Within the framework of this criminal case arrests continued (journalist Aziz Orujov was arrested). Travel ban has been imposed to prominent members of civil society members- lawyers, journalists, activists (Intigam Aliyev, Khadija Ismayil, Annagi Hajibeyli, Shakhvalad Chobanoglu, Azar Gasimli and others), bank accounts belonging some of them is still under arrest (Intigam Aliyev, Asabali Mustafayev), generally independent local NGOs have been prevented from working with foreign donors.
At the same time, the activity of foreign donors (Western origin) in Azerbaijan is almost prohibited, and unfounded criminal cases have been filed against the representations of some of them and these criminal cases are still on. As a result of the organizations contributing to the development of civil society in Azerbaijan like NDI, Open Society (Soros Foundation), OXFAM, IREX, World Vision, Friedrich Naumann Foundation left the country. OSCE Baku office was closed in July 2015 by accordance with the decision of Azerbaijani government to terminate the Memorandum of Understanding between Azerbaijan and OSCE.17
IV. ELECTION SYSTEM AND LEGAL FRAMEWORK
The President shall be elected via equal elections by free individual and secret ballot. The candidate who won more than 50+1 of votes is considered elected. If no candidate is registered or only one candidate is registered, then the elections are delayed and the process is repeated. Quorum is not demanded the elections to be considered as held.
16 https://www.azadliq.org/a/28251435.html , http://www.abzas.net/2017/01/nazirl%C9%99r-kabinetinin- q%C9%99rari-qht-l%C9%99r-ucun-qanunverici-m%C9%99hdudiyy%C9%99tl%C9%99ri-aradan-qaldirmayib/ 17 https://news.milli.az/politics/354554.html The main legislation which Azerbaijani government refers in the 2018 presidential election is the Constitution of the Republic of Azerbaijan (1995, last modified in 2016) and the Election Code (2003, last updated in 2018). The legal framework for the elections includes the relevant provisions of the Law on Freedom of Association, the Law on Television and Radio Broadcasting, the Law on Mass Media, the Civil Procedural Code, the Criminal Code and the Administrative Violations Code, as well as the normative acts of the Central Election Commission (CEC).
Amendments to the Election Code
The Electoral Code, which regulates all elections in Azerbaijan, was approved on 27 May 2003 and came into force. Parliament has initiated and realized about 20 changes and amendments to the Electoral Code for the past 15 years. The most recent amendment was made after the start of extraordinary elections on March 6, 2018.
In general, during the past 15 years about 200 amendments have been made to the various Articles of the Election Code or some of the Articles were removed from the EC. However, before these changes were made no public opinion were taken into consideration, recommendations coming from institutions experienced in election field, field experts and international missions were ignored, no consensus for the changes were sought.
One of the last amendments was made on December 15, 2017, some articles regulating public oversight mechanism over the election proses were removed from the Election Code.18 The stipulations for placing each bulletin in the envelope, sealing the ballot boxes and distributing voters' cards to the registered voters have been removed from the legislation.
In general, the amendments to the Electoral Code have reduced the free election right to zero along with being of discriminative character in most cases. Reduction of election period to 60 days, as well as decreasing the period for collecting voters’ signatures supporting the candidate twice, cutting down the number of dates for presidential election campaign to 22 days, diminishing number of existing platforms for campaigning, having only one space for freedom of assembly in each district, removal of campaigning opportunities in mass media with regard Election Code, abolishment of voluntary deposit and many other opportunities that were restricted are the example.
Normative acts of Central Election Commission
During the monitoring of the normative acts of the Central Election Commission, it becomes obvious that there were serious discrepancies between the CEC normative acts and demands of Election Code, which is also considered normative legal act. It is possible to come across with these discrepancies and further restriction of the Election Code mainly in the normative acts like "Filling out Election Commission Protocols", "Exit-Poll", "Complaints on Election Commissions", "Press Group", "Webcam" and "Status of Authorized Representatives.19
18 http://e-qanun.az/framework/37546 19 http://cloud.arqument.az/file/files/sechki-2015.pdf
Also, the observation carried out by local and international organizations before the snap presidential elections made clear that no reforms were conducted to create a democratic election environment.20
V. PREELECTION PERIOD ENVIRONMENT
A. Nomination and registration of the candidates
According to the Electoral Code a candidate can be nominated based on his or her own initiative or by the citizens with voting eligibility, as well as by political parties or coalition of political parties. In order for a citizen to become a candidate the citizen has to be a resident of Azerbaijan for at least 10 years, should have a university education, cannot have a dual citizenship, should not have any obligations before other countries and should not have past grave criminal conviction.
The nominated candidate in order to be registered has to collect 40,000 signatures from the voters living minimum in 60 districts out of 125 with minimum 50 signature per district. According to the law every voter can give a signature only to one candidate.
Although 15 candidates were nominated, according to Central Election Commission (CEC) until March 12 ten candidates presented their documents together with the signatures for the registration of their candidacy. CEC has registered candidacy of 8 candidates after 7-day review process of the documents.21
B. Abuse of financial (administrative) resources and financial transparency in the elections
On the eve of extraordinary elections state budget has been used for personal and political purposes. According to the reports22 the incumbent president Ilham Aliyev who has been registered as a candidate has signed more than 20 decrees allocating funds from state budget to increase salaries, pension, stipend and other social payments of people belonging to different social groups up to 10 percent. The influence of these documents reaches to more than 2 million voters which is 40% of eligible voters. As a result, the incumbent president has taken advantage of his powers in order to use it for his campaign purposes.
In addition, in 2018 the Reserve Fund of the President has been approved having 304 million manats23 which is 104 million manats or 52% more than the previous year. It is believed that the reason for 52% increase in President’s Reserve Fund is the presidential elections. Presidential candidate Ilham Aliyev has continued using the financial resources of the reserve fund that is funded from state budget for social and political purposes by issuing decrees after he called for
20 https://smdtaz.org/wp-content/uploads/2017/09/SMDT-DH-100917-1.pdf 21 http://www.msk.gov.az/az/elections/prezident-seckileri/11-04-2018/979/ 22 http://adr.az/?p=237 23 1USD=1.7AZN, https://en.cbar.az/other/azn-rates extraordinary elections. Although the provision 6.3 of the law on the Budget System prohibits the Presidential Reserve Fund from allocating funds in elections and referendums in the country, as well as for promoting the activities of the President of the country.24
In addition, information that is mentioned in CEC’s Annex 5 about the candidates’ properties, income and their sources is inaccessible to the voters. This information has not been posted to CEC’s website and hasn’t been published in mass media. CEC has not responded to ADR movement’s official request about this matter.25
C. Pre-election campaign
According to the 75.2 provision of the Electoral Code pre-election campaign starts 23 days prior to the election day and ends 24 hours left till the voting hour. The reduction of campaign period from 60 days to 23, prohibition of campaigning on state television and radio by the amendments and changes that were made to the Electoral Code in 2008 and 2010 has substantially limited campaign opportunities and has given unequal election advantage to the candidate of the ruling party.
The official campaign period started on March 19 and will continue until 24 hours left till the start of the voting day. CEC has allocated 168 open and closed facilities across the country for campaign purposes.
National Council and Musavat Party held a demonstration denouncing the extraordinary elections in March 10 and March 31. The Main Police Department of Baku in its statement to media has stated that the demonstration was held in accordance with the laws. According to the organizers of the demonstrations and observers some activists were detained after the demonstration.26 There are also facts about police exerting pressure on the citizens and their family members for attending the demonstration by identifying them in the videos police made during the demonstrations. Regretfully, none of these facts have been investigated by relevant state bodies.
According to the electoral code the registered candidates are provided with 3 hours a week air time on public television and radio. These debates serve the purpose of creating an imitation of political competition and existence of alternatives to the incumbent candidate. The reality is that majority of the candidates are openly defending the ruling party candidate in these debates.
The price of the paid air time on Public Television exceeds the maximum price that has been determined for commercial advertisings (at prime time the price of 1 minute is 1770 manats including the value added tax).27 Due to these high prices none of the candidates have used this opportunity. Some private television and radio channels have set the prices for the candidates so high that it is clear that they don’t want the candidates to use the paid air time.
24 http://e-qanun.az/framework/1126 25 https://www.azadliq.info/217112.html 26 https://www.meydan.tv/az/site/news/27775/ 27 http://www.msk.gov.az/uploads/Secki-2018/kiv/ictimaitv/qosma2.jpg
- 1 minute at Khazar TV costs 7080 manat including value added tax28 - 1 minute at Azad Azerbaijan TV costs 5310 manat including the value added tax29 - 1 minute at ARB TV costs 4602 manat including the value added tax30
The prices of campaign advertisings in FM radio channels have been set very high being completely inaccessible for the candidates. For example:
- The cost of the political advertising at Lider TV channel’s 107 FM radio is 2655 manat31 - The cost of the political advertising at Space TV channel’s 104 FM radio is 2478 manat32
These prices would not even allow the candidates that are members of parliament to use 1- minute paid air time. Their one-month salary would not be enough to pay for this. In general, the prices of the paid political advertising air time do not correspond to economic realities of the country.33
As result, due to the aforementioned facts media follows the campaign process with silence.
Some of the candidates using the free air time have insulted the leaders of the opposition that have boycotted the elections and used other forms of slander towards their address. Public Television did not grant air time to those politicians who have a right to respond. In these conditions it is hard to claim that the pre-election campaign is open, fair and organized in the environment of free competition.
D. Election administration and voter registration
The presidential election is administered by an organization that has three level structure – Central Election Commission (CEC), 125 district election commission (DEC) and 5426 precinct election commission (PEC). All the commissions are permanent bodies consisting of 18, 9 and 6 people, elected for a five-year term. During the decision-making process 2/3 of the members of the commission need to participate and the decision has to be approved with the voter majority of the participating members. CEC members are selected by the parliament, DECs are selected by CEC and PEC are appointed by the relevant DECs. 1/3 of the commission members are representing parliamentary majority, 1/3 are representing parliamentary minority and 1/3 are representing the independent members of parliament.
According to the observations MPs that are called independent are openly supporting the policies of the government. Also, the political parties called parliamentary minority cannot pursue a different policy perspective outside of the framework that has been set by the government. According to the law all commission chairmen are the representatives of the parliamentary
28 http://www.msk.gov.az/uploads/Secki-2018/kiv/xezertv/qosma.jpg 29 http://www.msk.gov.az/uploads/Secki-2018/kiv/atv/qosma.jpg 30 http://www.msk.gov.az/uploads/Secki-2018/kiv/arb/qosma.jpg 31 http://www.msk.gov.az/uploads/Secki-2018/kiv/lidertv/qosma2.jpg 32 http://www.msk.gov.az/uploads/Secki-2018/kiv/spacetv/qosma2.jpg 33 http://www.msk.gov.az/az/elections/prezident-seckileri/11-04-2018/966/ majority. Therefore, parliamentary majority de facto has the voting advantage in all the election commissions. The election administration has lost complete public trust in its impartiality and independence.
Every citizen over the age of 18 has a right to vote on election day, except those who have been deprived of the right to vote by the courts. Voter registration has a passive nature and voter lists are prepared based on the permanent voter registration database of CEC. According to the electoral code the permanent list of the voters is approved by every election commission every year until May 30 in accordance with the format designed by CEC and is reviewed at least 25 days left to the election day.
According to the March 21, 2018 information of CEC there are 5,192,063 eligible voters across the country. However, this figure is different from the figure that has been provided by the State Statistics Committee. According to State Statistics Committee 7.1 million of the population is over the age of 18. Thus, there is a discrepancy concerning the number of eligible voters in the figures made public by these two government bodies. We should note that despite the concerns expressed by the parties participating in elections, the civil society and media representatives, OSCE/ODIHR mission the relevant bodies – State Statistics Committee and Central Election Commission haven’t provided34 any clarification about this discrepancy.
E. Media
1. Legal framwork
In Azerbaijan, freedom of expression, freedom of press, and the right to access information are well protected by the constitution. However, defamation is stated as a criminal offense with a jail term of three years in the criminal code (Article 147). Last time, blogger Mehman Huseynov was sentenced under this accusation to two years in prison in March 201735. Civil defamation claims accompanied by the disproportionate financial sanctions have resulted in the closure of some critical media.
Although up until 2013 presidential elections internet, more or less, were a free space, later with several amendements (a number of conservative changes to media legislation including a new chapter that was added to the Law on Information and its Protection in 2017) internet freedom has become more restricted. After the adoption of that law several independent media resources have been blocked.36 Some internet website continue to be blocked, legal procedures are not used by the Ministry of Transport, Communication and High Technologies and finally the blocked websites are not being taken to the court to be approved.37 After the latest elections, arrests and persecutions of those active online continue. Changes made to the criminal code in June 2013 and in November 2016 legitimized the application of defamation provisions on the internet information resources.
34 http://arqument.az/file/files/KITAB%20CAP%20VARIANTI.pdf 35 https://www.azadliq.info/179526.html 36 http://qafqazinfo.az/news/detail/azerbaycanda-bu-saytlar-bloklandi-mehkeme-qerari-185207 37https://docs.google.com/spreadsheets/d/1TuOobwkjpxKeP4Fkh2DPyp883fc0_i3iuV_VMCk6TzY/edit?usp=sharin g
Despite the fact that the law on the new military situation adopted by the parliament on February 14, 2017, contradicts the constitution, it has made media censorship of legislation more open. However, Article 50 of the constitution clearly states that state censorship is prohibited.38
In general, interference into media legislation has been negatively assessed over the past year, and the experts are highly concerned with the increasing restrictions on freedoms in the country.39 Moreover, on June 12, 2012, the Parliament continued to amend the law on Access to Information, the law on State Registration of Legal Entities, and the law on Commercial Secrecy, which threatened freedom of information and restricted the rights mentioned in the constitution.
It has been 5 years the authority granted to the Human Rights Commissioner has been unused.40 Although the Ombudsman links it with the fact that the Ministry of Finance does not spare enough qualified staff to her office, it seems that the government is not interested in those activities and the problem continues as it is.
2. Media environment
While observing the pre-election environment, one can easily witness the troublesome situation of independent media in the country. The TV stations in the country are totally under the control of the regime. 4 of the current TV stations as well as public TVs – AZTV and ITV, are state sponsored. The other five TV stations broadcast by on-the-ground mechanisms are considered to belong to the ruling elite and from time to time receive financial assistance for various purposes.
ANS TV, which began functioning as the first independent broadcasting TV company in the country, was shut down and its online activities were suspended by the prosecutor's office.41 Two radios have been given licences to broadcast. Both licences were introduced to two state institute, Ministry of Transport and ASAN. Individual ownership of the regional television has been seized by various methods and then united under a central institute named after the ARB (Azerbaijan Regional Broadcasting) Company.42 According to unofficial information, the financial control of the ARB network is provided indirectly by state oil company, SOCAR.
News is manipulated for propaganda purposes and most of them therefore are one-sided. There is no actual public political debate. Public debates are excluded from live TV transmission and it is close to dissident voices, independent thoughts.
The situation of other media platforms is also seriously estimated as worsening as it was before the election. Mehman Aliyev, the head of the Turan Information Agency, founded as the first independent news agency in the region in August 2017, was illegally arrested over alleged tax evasion,43 he was kept in prison for more than 15 days, the organization he headed was
38 https://alasgarmaammadli.blogspot.com/2017/04/hrbi-vziyyt-haqqnda-qanun.html 39 https://alasgarmaammadli.blogspot.com/2018/01/2017-ci-ild-medann-huquqi-bazasnda-n.html 40 http://qaynarinfo.az/az/amasov-suleymanovaya-qarsi-7-ilde-barmaq-barmaq-ustune-qoyulmayib/ 41 https://www.youtube.com/watch?v=2uz0Ugo1JDE 42 https://apa.az/xeber-az/media-xeber/region-tv-nin-adi-deyisdirilib.html 43 http://musavat.com/news/mehman-eliyev-hebs-edildi_463379.html suspended. Later, as a result of international pressure, his arrest was annulled,44 he was able to restore his activity only long time later.
Aziz Orujov, the director of online TV Channel 13, was also arrested in May 2017 and was sentenced to six years in prison over illegal entrepreneurship and abuse of power.4546 TV’s activity was suspended in Azerbaijan. The alternative information resources such as Radio Liberty’s website, Turan TV, Azerbaijan Hour, Meydan TV and Azadliq newspaper were banned by a court order and access to these platforms via internet was officially suspended.
Moreover, the fate of a criminal case launched in 2015 against Meydan TV, an independent online media platform, is still under question. Journalists who collaborated with Meydan TV were repeatedly called to questioning and restrictions were imposed on them since most of them cannot travel out of the country.47
In general, pressure against media professionals and journalists intensified, new methods were used such as abducting investigative journalist Afghan Mukhtarli from neighboring country Georgia and illegaly bringing across the border to Azerbaijan. He was jailed for 6 years.48 The pre-election media environment is assessed as alarming by domestic and international organizations. It significantly affects the role of media in the democratic society, including the election process, given the fact that pressure on opposition media, journalists, bloggers, and social network activists intensify.49
G. OBSERVERS
1. Local observers
The Election Code considers the conduct of international and local election observation. According to the code, individuals, previous candidates, party and NGO representatives might be registered as election observers.
According to CEC reports dating back to 30 March 2018, 1281 local observers were registered by CEC and 53,900 observers were registered by the DEC across the country.50 Given the fact that main opposition forces boycott the elections in the country and that main NGOs and media platforms are shut down, it would not be difficult to understand that these people are a group of people who are willing to fraud the elections in favor of the government and the regime’s candidate.
44 http://www.bbc.com/azeri/international-41225328 45 https://www.amerikaninsesi.org/a/media/4165099.html 46 https://www.meydan.tv/az/site/news/28108/ 47 https://www.amerikaninsesi.org/a/media/3937840.html 48 http://www.bbc.com/azeri/azerbaijan-42660247 49 https://alasgarmaammadli.blogspot.com/2017/06/olkd-media-azadlgnn-vziyyti-kritik-hdd.html 50 https://report.az/prezident-seckileri-2018/msk-qeydiyyatdan-kecen-musahidecilerin-sayini-aciqlayib30 The same situation applies to NGOs involved in exit-poll and observation process: it is clear that they have been encouraged by the authorities. Therefore, there is no public trust in the assessment of such institutions. The serious rights restrictions that the civil society faces in the country, the lack of financial resources have obviously left independent NGOs specializing in the elections out of the process.
2. International observers
According to CEC figures dating back to April 4, 58 organizations of which name is widely publicized, 871 international observers out of 59 countries will be observing the election in the country.51
The OSCE's Office for Democratic Institutions and Human Rights (ODIHR) along with the OSCE Parliament Assembly will hold long-term observation with 30 observers and long-term observation with 280 observers in the election. On 30 March 2018, the OSCE ODIHR EOM's first interim report was published. Although the report contained a number of problems, generally, those who prepared this document have presented an assessment, which is inadequate to the situation and cautious. This has raised criticism from the local civil society. The assessments made in previous reports of this organization were tougher, and the election environment has not improved, but instead worsened between last elections and now. Civil society is frustrated by the fact that negligence of such international organizations carrying out election observation increase the government’s manipulation opportunities.
The mission of the Parliamentary Assembly of the Council of Europe (PACE) will observe the election with 43 people (with 10 replacers).52 However, in the local and international community there are serious doubts about whether the PACE mission will conduct an objective observation in the country or not. The fact that PACE mission head, Romania’s Viorel Badea, is in a good relationship with the Azerbaijani authorities, his lobbying activity in the PACE for his part and Strasser's involvement in the report on political prisoners, reinforces these doubts.
Without showing a clear-cut reason the European Parliament has refused to send an observation mission to the election.
F. COMPLAINTS AND APPEALS
The European Court has noted in some rules on Azerbaijan that the election complaints and the election commissions have not effectively been investigated. These complaints were related to both the registration of candidates and the termination of registration, as well as the violations of law during the election campaigns and on the election day. Election commissions and courts did not launch effective investigation into them.
The opportunity to obtain legal assistance, which is essential for the right to a fair trial in the country, has been maximum limited. For many years the bar association has been kept under
51 http://www.msk.gov.az/az/elections/prezident-seckileri/11-04-2018/987/ 52 https://www.azadliq.org/a/29115053.html control. Each 10,000 citizens represented by one lawyer. This is the worst outcome among the member states of the Council of Europe. Lawyers who deal with sensitive cases are exposed to various pressures, persecuted, and are illegally deprived of their status of attorney (for example: Khalid Baghirov, Yalchin Imanov, Alayif Hasanov, Fakhraddin Mehdiyev etc).53 The annulment of independent practitioners in 2018 left the society and particularly its most sensitive part defenseless. This situation will definitely affect the number of election complaints. Perhaps, this is what the government wants.
The government refuses to take real measures to implement recommendations aimed at eliminating the violations mentioned in the ODIHR decisions on electoral complaints.
VI. CONCLUSION AND RECOMMENDATIONS
Civil Society has come to conclusions that are stated below:
The government has not ensured release of political prisoners and prisoners of conscience despite the calls of local and international organizations, and leading western nations;
The pre-election environment, current situation regarding political rights, particularly freedom of expression, freedom of association and assembly does not guarantee free and democratic elections in the country. Election is held in the political oppression environment in which the government is arresting, oppressing and persecuting its opponents.
The law enforcement bodies and the courts are practically instruments in the hands of the government to punish its political opponents.
We can clearly see that the elections are held in the absence of alternatives to the ruling party candidate by looking at the official information of CEC about the candidates, television programs, including TV and radio debates. No conditions have been created for those organizations in opposition that are boycotting the presidential elections.
The recommendations of OSCE/ODIHR and the Venice Commission of the Council of Europe regarding the election legislation hasn’t been accepted. In contrary, in the last few years the regressive changes to the Electoral Code has substantially restricted the registration of the candidates, pre-election campaign and implementation of other election assurances.
The elections that are held in the political oppression climate cannot be considered free, fair, transparent and democratic due to substantial restrictions on political rights in recent years, existence of many political prisoners, and the fact that the election commissions and the courts are under the control of the government. Therefore, these elections cannot reflect true will of Azerbaijani people.
53 https://www.amerikaninsesi.org/a/fexreddin-mehdiyev/4219859.html Elections as an institutional mechanism which grants opportunity to the people to build their government through non-violent means has lost its value and importance due to the government’s systematic falsification of the elections and its continuous negligence of the recommendations of OSCE and other notable international organizations.
The Civil Society is making the following recommendations:
Oppression of political and civil society activists, and independent media has to stop. The prisoners that have been recognized as political prisoners by the international community have to be released.
The government should ensure independent and equal representation of all the political opponents in state and local governance.
Restrictions on freedom of assembly, freedom of speech and press should be lifted, necessary conditions should be created for effective function of media.
Election Code has to be adjusted to the obligations Azerbaijan has taken before the international community, to the principles of international law, including the recommendations of Venice Commission and Committee of Ministers of Council of Europe;
The composition of the election commissions should be based on the principle of parity with the equal representation of all the major political groups.
Democratic rules that ensure effective investigation of all the election complaints on the violation of voting rights should be determined.
OSCE, Council of Europe and other international organizations should press the Azerbaijani government with more consistency and harder to implement the commitments and obligations the government signed upon when joining these organizations.
UNDERSIGNED:
1. Akif Qurbanov, Chairman of the Institute for Democratic Initiatives (IDI) 2. Annagi Hajibayli, human rights lawyer 3. Alasgar Mammadli, media expert, lawyer 4. Khalid Aghaliyev, media expert, lawyer 5. Khalid Bagirov, human rights lawyer 6. Khadija Ismayil, investigative journalist, former political prisoner 7. Intigam Aliyev, human rights lawyer, former political prisoner 8. Gubad Ibadoglu, Chairman of the Public Initiatives Center 9. Mehman Aliyev, Director of the Turan Information Agency 10. Rasul Jafarov, human rights defender, former political prisoner 11. Rovshan Hajibayli, Editor of the "Azadlıq" Newspaper, human rights defender 12. Samir Kazimli, human rights defender 13. Shahvalad Chobanoglu, human rights defender, journalist 14. Yalchin Imanov, human rights lawyer