GENEVA (21 October 2016) - The Human Rights Committee today concluded its consideration of the fourth periodic report of Azerbaijan on its implementation of the provisions of the International Covenant on Civil and Political Rights.
Introducing the report, Khalaf Khalafov, Deputy Minister of Foreign Affairs of Azerbaijan, said that the amendments to the Constitution, approved by the referendum in September 2016, further strengthened the protection of human rights and fundamental freedoms, established the effective and flexible mechanism of the State administration, and ensured the effectiveness of the economic reforms. In addition to adopting laws on the public participation of citizens in public administration and on citizens’ appeals, Azerbaijan was using information and communication technology as a way to ensure open government and to facilitate access to courts. The concept of State support to non-governmental organizations and the setting up of the Council under the President of the Republic were some measures taken to create favourable conditions for the development of civil society. The unresolved conflict between Armenia and Azerbaijan in Nagorno-Karabakh remained the main obstacle to peace and sustainable development, with the continued occupation of territory by Armenia hindering the effective fulfillment of the international obligations of Azerbaijan in the field of human rights in those occupied territories.
Committee Experts shared concerns expressed by the national opposition and the Council of Europe that the Constitutional amendments limited rights and freedoms in Azerbaijan, particularly the right to freedom of association and assembly, and gave the President unprecedented political powers, reduced his accountability, and weakened the power of Parliament and the independent judiciary. Reports of politically motivated trials and repercussions on lawyers representing defendants in those trials – human rights defenders, activists, journalists and others - as well as the lack of full independence of the judiciary and courts from the executive branch, continued to be another issue of serious concern. The delegation was asked about the procedures in place to prevent arbitrary suspension of activities of civil society organizations, the restrictions on civil society in accessing foreign sources of funding, and travel bans imposed on journalists, lawyers and human rights defenders. Other issues of concern included harassment and discrimination against the Armenian minority, the continued practice of early and child marriage, corruption at the highest levels of the Government, stigma and discrimination against persons with disabilities, and discrimination and harassment on the grounds of sexual orientation and gender identity.
In concluding remarks, Mr. Khalafov said Azerbaijan would continue to cooperate with the Committee and the Human Rights Council, improve the human rights legislation, and strengthen civil society, the electoral process and democracy.
Also in concluding remarks, Konstantine Vardzelashvili, Committee Rapporteur, said that the concluding observations would reflect positive measures taken in Azerbaijan, and concerns, including on the use of force and inhumane treatment of detainees, freedom of expression, and the freedom of the media and civil society organizations to operate freely. Azerbaijan should ensure safety and protection from persecution and reprisals against the representatives of non-governmental organizations which had provided their reports to the Committee.
The delegation of Azerbaijan included representatives of the Ministry of Foreign Affairs, Ministry of Internal Affairs, Minister of Labour and Social Protection of the Population, and the Permanent Mission of Azerbaijan to the United Nations Office at Geneva.
The Committee will next meet in public at 3 p.m. on Monday, 24 October, to begin its consideration of the sixth periodic report of Morocco (CCPR/C/MAR/6).
The fourth periodic report of Azerbaijan can be read here: CCPR/C/AZE/4.
Presentation of the Report
KHALAF KHALAFOV, Deputy Minister of Foreign Affairs of Azerbaijan, said that the amendments to the Constitution, approved by the referendum in September 2016, provided inter alia for the inadmissibility of abuse of rights, the right of everyone to be treated with dignity by the public authorities, and the civil responsibility of the State and its officials for damage to human rights and freedoms. The amendments aimed at further constitutional strengthening of the protection of human rights and fundamental freedoms, establishing the effective and flexible mechanism of the State administration, and ensuring the effectiveness of economic reforms. In November 2013, Azerbaijan had adopted the law on public participation to enable citizens to participate directly in the public administration and the control of the activity of local and central authorities. The second National Action Plan for the promotion of open government 2016-2018 provided for the use of information and communication technology in the field of public administration, including the implementation of new mechanisms to prevent corruption and strengthen civil society and public control. The law on citizens’ appeals had been approved by the President in 2015 while the use of single Internet portal and “E-court” system allowed citizens to electronically apply to courts and receive information about trials and judgements. Targeted and consistent measures to fight corruption had resulted in the investigation of 100 criminal cases against 143 officials in the first six months of 2016 alone.
One of the measures to combat domestic violence was the setting up of a special data bank on victims and perpetrators of domestic violence in 2015; that year, 2,248 criminal acts against women and girls had been registered and 2,935 persons had been prosecuted. The special monitoring groups on prevention of violence against women and girls had been established, together with centres for support to victims of domestic violence; seven non-governmental organizations had been accredited for the provision of services to victims. Azerbaijan was currently implementing the third National Action Plan on combating human trafficking 2014-2018. In 2016, 13 persons had been charged with the crime of trafficking and 28 victims had been identified. Measures had been taken to improve the national migration legislation, and in 2015, the Government had granted citizenship to 181 stateless persons and temporary residence permits to 103 stateless persons, while 63 persons had received refugee status. As a result of the allocations for social protection of refugees and internally displaced persons and other activities undertaken by the Government, the level of poverty among internally displaced persons had been reduced from 75 per cent to 12 per cent over the past 12 years. In order to create favourable conditions for the development of non-governmental organizations, Azerbaijan had adopted the concept of State support to non-governmental organizations and had established the Council on State Support to these non-governmental organizations under the President of the Republic.
The unresolved Armenia-Azerbaijan Nagorno-Karabakh conflict remained the main obstacle to peace and sustainable development. The continued occupation of territory by Armenia in violation of international law and the relevant United Nations Security Council resolutions, and its policy of ethnic cleansing had caused more than one million refugees and internally displaced persons, and had hindered the effective fulfilment of the international obligations of Azerbaijan in the field of human rights in those occupied territories.
Questions from the Committee Experts
Opening the first round of questions, a Committee Expert noted that Azerbaijan was a multi-ethnic, multi-denominational and multi-cultural country, and that in such a context, human rights issues were bound to emerge. The Expert took good note of the Constitutional amendments of September 2016 and asked the delegation to comment on criticism expressed by the national opposition parties and the Council of Europe, which claimed that the aim of the amendments was to strengthen the power of the President and that they contained provisions which limited rights and freedoms. The delegation was asked about the direct application of the Covenant in Azerbaijan and its invocation by the courts, and about the measures taken to implement views of the Committee concerning individual communications, in particular concerning the case of Quiliyev vs. Azerbaijan. The Commissioner for Human Rights was a national human rights institution accredited by the Paris Principles – what budgetary resources were allocated to the national Commissioner for Human Rights to ensure its independence, considering that concerns had been raised about its lack of political independence? What measures were being taken to ensure access to recourse and remedies to victims of human rights violations by businesses or enterprises, including those owned by the State?
Taking up the issue of discrimination and harassment, another Expert asked whether discrimination on the grounds of sexual orientation and gender identity was expressly prohibited by the law, and noting that there were reports of incidents of police brutality or extortion against lesbian, gay, bisexual, transgender and intersex persons, also asked about legal and practical measures to be taken to address these issues. Persons with disabilities, including children, suffered stigma and discrimination: most children with disabilities were home-schooled and most public buildings were inaccessible. What was the status of the law on the rights of persons with disabilities. There had been very few complaints and few court cases concerning racial discrimination – was this because there were no racial problems whatsoever in Azerbaijan, which would make it the most harmonious country in the world, or was it because of lack of awareness of the people and the law enforcement apparatus about the issue of racial discrimination?
The Council of Europe’s report on the protection of minorities was rather positive on the situation in Azerbaijan, but members of the Armenian minority were subjected to discrimination and harassment, and many Azerbaijanis of Armenian origin did not identify as such in order to avoid negative social consequences. Army conscripts still suffered hazing but without acknowledgement of the problem, the Government would not be able to effectively address this.
What measures were being taken to address discrimination and harassment of lesbian, gay, bisexual, transgender and intersex persons and human rights defenders working on issues of sexual orientation and gender identity? Forced and early marriages were issues of serious concern and the delegation was asked to inform about concrete measures taken to address them. It was disturbing that physical, sexual and mental abuse in the domestic context was tolerated in the society – what was being done to address domestic violence and were the measures working? How was the Government tackling the issue of family honour?
Turning to gender equality, the Expert noted that the level of representation of women in political life was on the increase, particularly in Parliament, but it remained rather low in the civil service. In addition to unequal representation and participation, women were also paid less: in the public sector, it seemed that women made only 67 per cent of the salary paid to men in similar positions. Another issue of concern was the practice of selective sex abortion – what was being done to address the problem?
Prisons in Azerbaijan were overcrowded and although new facilities were being constructed, they would not be sufficient to resolve the problem. What other steps were being taken to address overcrowding, and to curb the corruption among prison guards who received money to allow family visits? Other issues of concern in relation to deprivation of liberty included medical experiments on prisoners, the length of preventive detention, the mixing up of administrative detention with preventive detention, and the absence of alternatives to detention.
It seemed that the 2010 law on domestic violence did not fully criminalize domestic violence as there were forms of domestic violence which did not give rise to criminal procedures, while the limited implementation of the law was a major concern. The delegation was asked about the investigation and prosecution of cases of domestic violence, including rape and sexual violence in the domestic context; the existence of a hotline for reporting of domestic violence and of shelters and centres providing services to victims of domestic violence; and the role of the Government in providing protection and services to women in need. Although the age of marriage had been set to 18 years of age in 2011, and child marriage was criminalized, marrying off children was still practiced. Trafficking in women and children had increased in recent years, including for labour exploitation.
The situation of utmost concern was that no case of torture had been reported in Azerbaijan, although a group of cases had been submitted to the European Court of Human Rights, and the Committee had information about several credible testimonies of death and beating in detention. Was it possible that complaint mechanisms were not working? Torture seemed to be used to dissuade and spread fear among civil society; this was confirmed in the preliminary findings by the Special Rapporteur on human rights defenders who had visited the country in September 2016, and who had denounced the large-scale persecution of national and international non-governmental organizations in Azerbaijan since 2014. The strategy of persecution included torture, according to the Special Rapporteur. What was the situation with the adoption of the law on juvenile justice?
There were some 600,000 internally displaced persons in Azerbaijan, who were primarily displaced by the Nagorno-Karabakh conflict. Were those displaced by natural disasters registered as internally displaced persons and entitled to the rights and protections as per the 1999 law? One of the reasons of the difficult situation of internally displaced persons was the desire of the Government to keep the situation temporary – people were cut off from their social environment and had difficulties in the exercise of their rights, including the right to freedom of movement, which prevented them from moving elsewhere to find work. It seemed that only the children of displaced fathers could be considered displaced, which was not the case for children of displaced mothers – if true, this provision reinforced gender stereotypes.
According to some allegations, asylum-seekers from Chechnya were prevented from accessing asylum procedures; the United Nations Refugee Agency had registered more than 500 refugees from Chechnya in Azerbaijan in 2016, but it seemed that the Government limited their access to asylum procedures, jobs and markets, making their situation even more precarious.
A Committee Expert expressed serious concern about involuntary hospitalization, confinement to psychiatric facilities, and forced institutionalization of persons, including people and children with disabilities, and the acts of torture committed in this context.
Response by the Delegation
In response to the questions raised by the Committee Experts, the head of the delegation noted that some of the questions and comments were far from the truth and the real situation in Azerbaijan, and said that the delegation would do its utmost to provide the real information and enable the Committee to issue its concluding observations.
On the institutional framework for human rights in Azerbaijan, a delegate said that according to the act on the referendum, prior to the September 2016 referendum, the Constitutional Court had examined the proposals put forward for the voting and declared them in conformity with the Constitution. The Constitutional amendments related inter alia to the protection of the rights of minorities and persons with disabilities, as well as the protection of the right to private property, and the right to citizenship and nationality.
The legislative framework governing the functioning of the Commissioner for Human Rights of Azerbaijan was based on the Constitution of Azerbaijan, and the framework of the Commission for the Nakhchivan Autonomous Republic rested on the Constitution of the Autonomous Republic. The Government had taken fully into consideration the decisions of the European Court of Human Rights concerning violations of Article 1 of the Optional Protocol to the European Convention on Human Rights, and had taken measures to ensure that all future evictions took place in accordance with the domestic legislation and the European Convention on Human Rights.
Administrative detention was applied for minor offenses upon a decision by a court, and did not present a pre-trial detention; it could last up to 90 days. Pre-trial detention was applicable in criminal procedures and was defined by the Code of Criminal Procedures which also contained alternative measures to detention, which were decided upon by the Court. A number of cases by the European Court of Human Rights in relation to article 3 of the Convention on custody established that there were no material violations of the article, but that violations were procedural. Azerbaijan was aware of the persistent problems affecting law enforcement but was taking measures to address the issue.
Most of the 565 Chechens who had applied to the United Nations Refugee Agency this year had been refused the status of refugees by the Agency itself. Azerbaijan was a very harmonious country, where racial discrimination did not exist; the Government allocated financial resources for the various religious groups in order to facilitate a harmonious society.
The State Committee on the problems of the family, women and children had carried out a joint programme to improve the motivation of women to participate in political and economic processes. In addition, the role of women in local communities was being enhanced in some areas of the country. The number of female members of Parliament was on the increase, and today, women represented 17 per cent of the members. The Committee was successfully running projects to improve the participation of a number of women in the labour market and decision-making in rural areas, in cooperation with several international partners. Specific initiatives were being taken to prevent selective sex abortion, including through the law on reproductive health; training for elders, teachers, doctors, psychologists, and regional organizations; and centres for reproductive health for young people.
In 2009, the law to prevent violence had been adopted and as a result the family law had been amended to effectively deal with acts of violence. Centres for support to victims of violence had been set up and several non-governmental organizations had been accredited to run them, while a hotline had been opened for reports of any forms of violence, including domestic and sexual violence. The authorities had received reports of 5,726 crimes against women in 2009 and some 2,200 cases in 2014. More than 3,000 people had been charged. In 2016, 32 cases of sexual violence had been registered. The rate of prosecution of cases of violence against women was more than 90 per cent. Sexual relations with children under the age of 14 were criminalized and were considered to be a particularly heavy crime. The amendments to the Family Code had raised the age of marriage from 16 to 18 and had introduced fines for child marriages.
The Criminal Code prohibited all acts of torture and ill treatment, including by State officials or by incitement of State officials. In July 2012, the law on rights and freedoms of persons in detention facilities had strengthened the protection of detainees from torture and ill treatment and was in compliance with Azerbaijan’s international obligations. For many years, the conditions for direct and unlimited monitoring of detention facilities by international and national independent organizations had been provided; in 2015, more than 300 such visits had been undertaken during which no complaints of torture had been received. Allegations of widespread torture and cruel and inhumane or degrading treatment against people in detention facilities were not founded. Targeted preventive measures had helped to minimize the number of deaths among detainees.
Measures were being taken to bring the conditions in detention facilities in line with international standards, including through the rehabilitation of detention and pre-trial detention facilities, and the construction of six new prisons. The financing of the prison services over the last several years had increased. A whole new set of rights were guaranteed to detainees, such as immediately informing the family about the beginning of detention, family visits, enjoyment of sports activities, access to newspapers and journals, and others. A hotline was available for lodging of complaints for corruption in prison facilities. In 2015, the Ministry of Justice had received more than 90 complaints, of which 19 were in relation to corruption. According to the article 10.1 of the Penalty Enforcement Code, medical experiments were not allowed on prisoners.
There was no separate law on juvenile justice and work was ongoing with the support of United Nations Children’s Fund on the issue of children in conflict with the law. A pilot project was ongoing on one of the regions, where a group of judges had been nominated as exclusive juvenile judges. Juvenile justice practice in Azerbaijan was developing, but given the very low number of cases, it was not evident that Azerbaijan would develop a separate law on the issue.
Questions by the Committee Experts
In the second round of questions, a Committee Expert recognized the progress made in ensuring access to lawyers and to free legal aid, but the low number of lawyers was an issue of concern as it hampered the enjoyment of the right to legal representation. The delegation was asked about the reasons explaining such a low number of lawyers in the country, whether it was true that between 1995 and 2005 no lawyer had been admitted to the bar, and what steps would be taken to bridge the gap. What was the “process of prophylactic conversation”, to which apparently some of those detained in connection to demonstrations had been exposed?
With regard to politically motivated trials and adverse repercussions on lawyers representing defendants in those trials, the Expert said that the Committee was aware of a number of such cases, either because they were brought to its attention, or the attention of the European Court of Human Rights, or had been reported in the media. One such case was of Aslan Ismailov, a lawyer in Baku who had represented a blogger; in May 2013, Mr. Ismailov had publicly stated that his client had been tortured and called for the resignation of the Minister of Interior, following which he had been summoned by the Ministry, beaten and warned to “behave well”. Mr. Ismailov had been later disbarred based on a complaint filed by a judge who had claimed that Mr. Ismailov had insulted him. This was not the only case of disbarment, other cases included lawyers who were representing journalists, human rights activists or the lawyers who made statements about the Government.
Could the delegation comment on the alleged harassment of members of the Armenian minority and the reluctance of Azerbaijanis of Armenian origin to self-identify with this group, the reports that individuals with Armenian surnames were prevented from entering the country regardless of their nationality, and the intentions concerning the ratification of the European Charter for Regional or Minority Languages?
Another Expert expressed concern about the continued lack of full independence of the judiciary and courts from the executive branch, including prosecuting authorities. The delegation was asked about the acquittal rates in 2015, the process of judicial appointment, why a member of the Ministry of Justice was a member of the Judicial Council, whether the political loyalty affected the tenure decisions, and the measures taken to fight the corruption among the judiciary and whether this was a part of regular judicial training. The Expert also raised the issue of the right to freedom of movement for internally displaced persons who seemed to be prevented to freely move to areas with more jobs and more opportunities because of the registration procedures, as well as the issue of travel bans imposed on journalists, lawyers and human rights defenders.
On freedom of religion, a Committee Expert asked about steps taken to abolish the obligation to register a religious community, to modify the 2009 law on religion in order to make it compliant with the provisions of the Covenant, to remove the rigorous restrictions imposed to freedom of religion of the people of the Nakhchivan Autonomous Republic, and about the mandate of the National Committee for Relations with Religious Organizations. The Expert recognized that in the current context marked by the risk of religious conflict and violence, and harmful influence of certain conservative States and religious radical networks, it was difficult for a multi-religious and multi-cultural State like Azerbaijan to perfectly balance the need for public order and the need for religious rights and freedoms, but more effort by the Government was needed in this regard.
Other Experts raised the issue of conscientious objection and the adoption of the specific legislation for alternative military, administrative and legislative efforts to ensure the registration at birth of children born to refugees and stateless persons, the plans to reduce the length of administrative detention, the procedures in place to prevent arbitrary suspension of activities of civil society organizations and the limitations in accessing foreign sources of funding for civil society, and the steps taken to implement decisions of the European Court of Human Rights on cases involving torture and ill-treatment in custody.
Experts noted with satisfaction that Azerbaijan had taken into consideration the views of the Venice Commission in implementing the Constitutional referendum. However, the amendments further restricted rights and freedoms, particularly the freedom of assembly and association, while the amendment to the article on nationality was clearly a step backwards. Numerous complaints had been raised about the process by which the amendments had been adopted, notably the lack of involvement of the Parliament. It was of utmost concern that the amendments gave the President unprecedented political powers, reduced his accountability and weakened the power of Parliament and the independent judiciary. What measures were being taken to investigate and address corruption at the highest level of the government?
Response by the Delegation
Answering the questions concerning employment, including forced labour, a delegate noted that Azerbaijan was a party to international treaties prohibiting forced labour and said that the Labour Code regulated the conditions of work in line with international standards. Forced labour was allowed in situations of natural disasters, but this situation was carefully regulated by the State. Children under the age of 15 were not allowed to work and all labour contracts must be registered in the national system before the labour rights would start applying. There had been three cases of forced labour in 2014 and one case in 2016, and employers had been punished. The law guaranteed equal wages for women and men; 40 per cent of the short-term workers were women who worked in health, education and other less paid sectors. Persons with disabilities had the right to work and all employers with 20 employees or more had to create one job for persons with disabilities for every five employees, or risk paying heavy fines. The new bill on the rights of persons with disabilities was currently being discussed by Parliament.
Measures were being taken to strengthen the legal profession, which was regulated by the law. Azerbaijan was aware that for a very long time no new lawyers had been appointed to the bar and steps were being taken to increase the number of lawyers. At the moment, there were about 2,000 lawyers in the country, which was not enough. There was no persecution of lawyers protecting the rights of their defendants and currently, no lawyers were being disbarred for representing persons in political cases. There were several lawyers who had been disbarred for breaking the law and the rules and principles of the profession. One member had been disbarred by the decision of the Bar Association, which had been approved by the national court, and the case was now with the European Court of Human Rights; the lawyer had been disbarred for his public statements and statements in the court which were offensive to the judge and the judicial system in Azerbaijan.
Concerning the opinion of the Venice Commission on the Referendum Act, a delegate expressed incredulity that an international organization which had more than 45 members could prepare an opinion on a Referendum Act comprising of more than 25 articles, in only 10 days, and distribute it among international organizations. The opinion had been analysed by Azerbaijani lawyers and was found to be of a very low quality. The Government would consider reasonable opinions made by the Venice Commission and would only reflect those in the Referendum Act implementing legislation.
The minimum term of imprisonment in criminal proceedings was three months, and in administrative matters, the maximum was 15 days and only for the most serious administrative offences. The duration of the administrative arrest had been increased from 15 days to 90 days for the most serious offences such as hooliganism or violent breaches of traffic and road regulations. The Criminal Code contained two articles of defamation, and after the judgement in the Fatullayev case in 2010, no criminal charges on this basis had been filed against journalists. Journalists were not being prosecuted for exercising their profession.
If a demonstration or a rally was violent, the authorities had the duty to disperse it – this was the case during the demonstration in Siyazan where the protestors were destroying private property and the police had to intervene and disperse this so-called assembly.
The State Commission on Religious Associations was the main executive body in charge of the registration of religious organizations and the promotion of tolerance, inter- and intra-religious dialogue, and prevention of extremism. There had been no case in which the authorization had been rejected to religious association. The Jehovah’s Witnesses had received their registration in 2002 and had failed to re-register.
As a result of preventive actions in the area of trafficking in human beings, 108 cases of trafficking in persons had been identified, 38 persons prosecuted, and 15 criminal groups identified. In 2015, there had been 63 victims of trafficking, of whom 51 had been placed in adequate accommodation and provided appropriate support.
Everyone in the country could freely enjoy their right to freedom of movement, in and out of their place of registration and residence; the purpose of registration was to keep count of the number of people in the country. During the last 12 years, 162,000 internally displaced persons had been provided with permanent jobs and 200,000 with temporary jobs, while 8,543 internally displaced persons had been enrolled in universities in the 2015/2016 school year. The status of internally displaced persons required that a person was registered in their temporary place of residence and this did not limit their right to move freely in the country and receive benefits.
Follow-up Questions by the Committee Experts
Committee Experts asked for further clarification on disbarment, particularly in the Baghirov case that had accused a chief of the police of responsibility for a death in custody and had been then disbarred in 2011 for breaching lawyer-client confidentiality. What was the status with the legislation on conscientious objection?
KHALAF KHALAFOV, Deputy Minister of Foreign Affairs of Azerbaijan, said that the dialogue was a satisfactory exchange of opinions and noted that some of the questions were not accurate and some of the concerns came from biased sources. Azerbaijan would continue to cooperate with the Committee and the Human Rights Council, and would continue to improve the human rights legislation, and to strengthen civil society, the electoral process and democracy. The fight against corruption was being forcefully taken forward, including against high-level officials.
KONSTANTINE VARDZELASHVILI, Committee Rapporteur, said that this was a full and interesting dialogue in which the Committee had the opportunity to share their thoughts and issues of concern with the delegation in order to contribute to the improvement of the human rights situation in Azerbaijan. The concluding observations would reflect positive measures in Azerbaijan such as the law on the rights and freedoms of persons in detention, and the changes in the Criminal Code, as well as the concerns, including on the use of force and inhuman treatment of detainees sometimes bordering on torture, freedom of expression, and the freedom of the media and civil society organizations to operate freely. The Committee Rapporteur urged Azerbaijan to ensure safety and protection from persecution and reprisals against the representatives of non-governmental organizations which had provided their reports to the Committee.
KHALAF KHALAFOV, Deputy Minister of Foreign Affairs of Azerbaijan, said that fear of non-governmental organizations about persecution and reprisals were absurd as everyone in Azerbaijan could express their criticism through the media.