On Early Presidential Elections in Azerbaijan 11

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

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