74
Baku – 2007
MONITORING OF OBSERVANCE OF THE FREEDOM OF ASSEMBLYIN THE REPUBLIC OF AZERBAIJAN
LEGISLATION AND PRACTICE
MONITORING REPORT
Citizens' Labor RightsProtection League
Open Society Institute-Assistance FoundationHuman Rights and Governance
Grants Program (Budapest)
General Editing and Compilation: Sahib Mammadov
Staff Responsible for Monitoring:Sahib Mammadov (Lawyer\Project Coordinator)Elbrus Mammadov (Lawyer)Irada Javadova (Lawyer-advocate)Hamid Khalilov (Finance Manager)Rovshan Hajiyev (Translator)
Consultants on Monitoring
Slawomir Cybulski (Helsinki Foundation for Human Rights- Poland)Bogna Chmielewska (Helsinki Foundation for Human Rights- Poland)Adam Bodnar (Helsinki Foundation for Human Rights -Poland)Lukasz Bojarski (Helsinki Foundation for Human Rights -Poland)
This publication reflecting the results of the monitoring on status of ensuringthe freedom of peaceful assembly in Republic of Azerbaijan is developed andpublished within the "Monitoring of Observance of the Freedom ofAssembly in the Republic of Azerbaijan" Project implemented by theCitizens' Labor Rights Protection League and financed by the Open SocietyInstitute-Assistance Foundation Human Rights and Governance GrantsProgram (Budapest).
Citizens' Labor Rights Protection League Address: Baku AZ1014, Rasul Rza 87/9
Telephone: (994 12) 495 85 54; (994 50) 314 49 15E-mail: [email protected]; [email protected]
www.clrpl.org
ISBN - 978-9952-25-070-1
© CLRPL© OSI-AF
C O N T E N T S
Introduction 4
Analysis of Legislation 8
Results of Sociological Analysis Conducted Among Political Partyand Public Organization Activists
25
Analysis of Answers by Relevant Bodies of Executive Power inResponse to Notifications on Conducting Assembly
34
Non-Structured Interviews with Persons Subject to PhysicalViolation While Dispersal of Mass Events by the Authorities and
Brought To Responsibility 46
Observation of the Behavior of Participants, Organizers and theForces Ensuring Public Order During the Assemblies
48
Analysis of Press 50
Final Monitoring Results 53
Recommendations 63
Annexes 68
3
Article 49 of the Consti-tution of Republic ofAzerbaijan adopted on
November 12, 1995 stipulates thateverybody has the right for free-dom of assembly with others.
Pursuant to the Article of theConstitution no permission isrequired from the authorities toconduct peaceful assemblies, meet-ings, demonstrations and etc.According to the Constitution theorganizers have to notify the rele-vant body of executive power with-in the period of time as determinedby legislation.
The Law of the Republic ofAzerbaijan on "Freedom ofAssembly" was enacted in 1998year, several years after the adop-tion of the Constitution. Ensuringthe right for freedom of assembly ofpeople and sanctions for preventingexercising of this freedom are pre-scribed by the Criminal Code and
Code of Administrative Torts ofthe Republic as well as rules andprocedures are determined for exer-cising of this freedom.
Relevant parts of the Interna-tional Covenant on Civil andPolitical Rights, and Conventionfor the Protection of Human Rightsand Fundamental Freedoms towhich Republic of Azerbaijan is aparty has placed certain obligationson the state to ensure this funda-mental freedom. However there arestill serious problems existing in thecountry in ensuring of this freedom.The political parties, public unions,trade unions and group of peopleexisting in the country encounterserious problems while attemptingto use the right for freedom ofassembly or when use this right.Exercising of this freedom is defacto of permission character inAzerbaijan while according to therequirements of the Constitution ofthe Republic of Azerbaijan and the
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I N D U C T I O N
International Standards to whichRepublic of Azerbaijan is a party,the only condition for realization ofthe freedom of assembly (or peace-ful assembly) is to notify the rele-vant bodies of executive powerahead of time. Every institution ora group of people has to get per-mission from the relevant bodieswhen they want to use the right forfreedom of assembly, otherwise anygathering will be considered as"unauthorized assembly".
The government's pressure onthe right for freedom of assemblyduring the recent serious politicaldevelopments which took place inthe country as well as Presidentialelections in 2003 and on the eve ofParliamentary elections in 2005year and aftermath have concernednot only the public but also theinternational community. OSCEand the Council of Europe aremaking efforts to ensure the real-ization of the right for freedom ofassembly in the country.International organizations, rele-vant bodies of foreign countriesand International Non-Govern-mental Organizations defendingthe Human Rights have severaltimes pointed out in their periodicalreports the restrictions of the rightfor freedom of assembly in Azer-baijan.
Citizens' Labour Rights Protec-tion League conducted monitoringin the country to analyze the realstatus of exercising the right for
freedom of assembly in the countrythrough applying objective indica-tors. The project is financed byOpen Society Institute's HumanRights and Governance GrantsProgram (Budapest).
The following monitoring toolsare applied while carrying out themonitoring process.
Analysis of Legislation
The Law of the Republic ofAzerbaijan on "Freedom ofAssembly" and the existing laweffective acts related with exercisingof this law were analyzed."Guidelines on Freedom of Peace-ful Assembly" prepared by theOffice for Democratic Institutionsand Human Rights (ODIHR) ofthe OSCE and the correspondingjudicial precedents of the EuropeanCourt of Human Rights were com-pared while analyzing the legisla-tion.
Organization of Surveys AmongActivists of Public Organizationsand Political Parties
The professional sociologistconducted surveys among theactivists of leading political partiesand social organizations of thecountry and developed final refer-ence based on the results. Theanonymous questionnaire surveyswere mainly conducted in Baku,Ganja, Ali-Bayramli and Sumgayitcities. 110 people participated in the
5
surveys and the reference is devel-oped based on results.
Analysis of Answers by RelevantBodies of Executive Power inResponse to Notifications onConducting an Assembly
Mainly the notification lettersaddressed by various political par-ties and social institutions to theExecutive Power of Baku City indifferent periods and letters ofresponse by the Executive Power ofBaku City are analyzed and devel-oped report. The substantiation ofthe prohibitions imposed by theexecutive power of the city on con-duct of an assembly are evaluatedboth in the context of National leg-islation and relevant parts of theConstitution as well as internation-al norms.
Organization of Non-StructuredInterviews with Persons Subject toPhysical Violation While Dispersalof Mass Events by the Authoritiesand Brought To Responsibility
Non-structured interviews areconducted with 20 people who weresubject to physical violation by theforces of power and punished forparticipation in mass events at var-ious periods.
The persons representing differ-ent political forces, social institu-tions and non-partisans answeredthe questions, and described the
incidents which had taken place inthe gathering they faced violation.
Observation of the Behavior ofParticipants, Organizers and theForces Ensuring Public OrderDuring the Assemblies
We observed two assembliesorganized in Baku city. One ofthem was street-procession and theother one a picket. The street-pro-cession was organized by"Musavat" Party on March 18,2007 year and "Azadlig", "YeniMusavat", "Bizim Yol", "GundalikAzerbaijan", "Realniy Azerbaijan"newspapers, "Qanun" journal and"Turan" information agency organ-ized the picket on May 15, 2007year. The first event was authorizedby the bodies of executive powerand the latter was prohibited.Corresponding notes were made on"observation map" and photostaken during the observationprocess.
Analysis of Press
We followed up the articles ded-icated to the right for freedom ofassembly issued by 3 popular news-papers including "Azadlig", "525thNewspaper" and "Zerkalo" during3 months period. The reference isdeveloped based on the results.
The references are developed oneach monitoring tool separately,
6
and included to the monitoringreport. The final monitoring reportand recommendations are preparedbased on these results. We sentinformation inquiries to both polit-ical parties and social institutionsas well as to relevant bodies of exec-utive power aiming to get data andstatistical indicators during themonitoring process. The politicalparties and social institutionsresponded to the inquiry in timelymanner and provided requireddata. However the Executive Powerof Baku City and Executive Powerof Ali-Bayramli town roughly vio-lated the requirements of the Lawon "Obtaining Information" by notresponding to the inquiry. Only theExecutive Power of Ganja cityresponded to the submitted inquiry.
Comprehensiveness of theMonitoring
The monitoring carried outwithin the project mainly was heldin Baku city which is the center forsocio-political process. At the sametime certain monitoring tools werealso applied in Ganja and Ali-Bayramli cities.
Gratitude
We express our deep gratitude toOpen Society Institute's HumanRights and Governance GrantsProgram (Budapest), Open Society
Institute Assistance Foundation(Azerbaijan) for provided financialassistance to carry out the monitor-ing as well as to the Experts ofHelsinki Foundation for HumanRights- Poland for their valuableadvices to conduct the monitoringand to the personnel for realizationof this Project.
Responsibility
The staff members and expertsattracted to realization of theProject have made every effort tocarry out the monitoring and devel-op the report, and this activity isthe fruit of joint efforts. Howeverthe project management will beresponsible for any mistake madein the process of monitoring anddeveloping the report.
Sahib Mammadov
7
Constitutional Grounds for theFreedom of Assembly in the Republicof Azerbaijan
The Constitution of theRepublic of Azerbaijanwas adopted on Novem-
ber 12, 1995 year by the nationalreferendum. Changes and amend-ments to the Constitution weremade on August 24, 2002 year andthose changes were adopted by ref-erendum and became effective onSeptember 19, 2002 year.
The third Chapter of the secondSection or 48 Articles (24-71) of theConstitution of the Republic ofAzerbaijan dedicated to "PrincipalHuman and Civil Rights andFreedoms".
The complex socio-political situ-ation existing in the country, prob-lems related with the transition peri-od did not serve as obstacles to pre-scribe human rights and freedoms inconformity with international stan-dards and fully to the Constitution.
Instead, ensuring human rights
and freedoms is described as thesupreme aim of the state in theArticle 12 of the Constitution.Pursuant to this article, "…Thehuman and civil rights and freedomsenumerated in this Constitution shallbe exercised in accordance with inter-national Agreements to which theRepublic of Azerbaijan is a party".
Proclamation of the principles onhuman rights and freedoms and pre-scription by the Constitution was ofgreat importance. However, it doesnot mean translation of those rightsand freedoms into real life.
Ensuring human rights and free-doms in the country has been theoutstanding problem since declara-tion of the human rights and free-doms by the Constitution. It indi-cates that guaranteeing humanrights and freedoms by the supremelaw has not led to exercising thoserights and freedoms fully in reality.
Reflecting the right for freedomof assembly among the principlefreedoms prescribed by the
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MONITORING REPORT
ANALYSIS OF THE LEGISLATION
Constitution was essential and it isimpossible to imagine a democraticsociety without the right for free-dom of peaceful assembly.
The Article 49 of the Consti-tution has affirmed that every per-son shall have the right to freelygather with others.
Despite of the fact that this free-dom prescribed by the Constitutionis blanket, a separate law regulatesexercising and restriction of thisfreedom.
Protection of the Freedom of Assembly in the Republic
of Azerbaijan by InternationalCovenants
According to Article 21 of the"International Covenant on Civil andPolitical Rights" of whichAzerbaijan was party in August of1992 year
The right of peaceful assemblyshall be recognized. No restrictionsmay be placed on the exercise of thisright other than imposed in con-formity with the law and which arenecessary in a democratic society inthe interests of
national security or publicsafety;
public order (ordre public); the protection of public
health or morals; or the protection of the
rights and freedoms of others.
According to Article 11 of theConvention for the Protection ofHuman Rights and FundamentalFreedoms also known as theEuropean Convention on HumanRights (ECHR)
Everybody has the right to free-dom of assembly…. No restrictionsmay be placed on the exercise of thisright other subject to certain restric-tions that are "in accordance withlaw" and "necessary in a democraticsociety" in the interests of
national security or publicsafety;
public order (ordre public); the protection of public
health or morals; or the protection of the
rights and freedoms of others.
This Article does not prevent thearmed forces, police and membersof the administrative bodies of stateto put lawful restrictions on exercis-ing of these rights.
The Law of the Republic of Azerbaijan on Freedom
of Assembly
Basic Definitions and Notions
The Law of the Republic ofAzerbaijan on "Freedom ofAssembly" was enacted on No-vember 13, 1998 year with an aim toexercise freedom of assembly asreflected in Article 49 of theConstitution of the Republic of
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Azerbaijan and its restriction inconformity with the Constitutionand other international covenantsto which Azerbaijan is a party. Thechanges and amendments to theLaw were made on March 4, 2005year. Besides this Law, there are anumber of statutory acts that cer-tain provisions of those acts regu-late ensuring the freedom of assem-bly and holding liable the personswho put obstacles in exercising thisfreedom or abuse their power.
The 5th provision of the execu-tive order on "Urgent Measures inConnection with the Preparationand Conducting of the Elections tothe Milli Majlis of the Republic ofAzerbaijan," adopted by thePresident of Azerbaijan Republic,the decree# 318 of the head of exec-utive power of Baku on securingplaces to conduct gatherings, meet-ings and street processions in Bakucity dating October 27, 2006 as wellas orders adopted by the heads ofexecutive power of other districtsand towns of the Republic are alsoamong the effective documents reg-ulating the freedom of assembly.
The basic definitions reflected inArticle 2 of the Law on "Freedom ofAssembly" classify the mass eventsas following:
"Gathering" - it is an assembly ofpersons for a joint discussion of anyquestion and for making decisionon the issue;
"Meeting" - a massive event con-ducted for expressing commonopinion of the assembled persons
and/or make common calls anddemands;
"Demonstration" - it is an expres-sion of an opinion of a group of per-sons on issues related with socialand public life;
"Street procession" - it is anexpression of an opinion of a groupof persons moving on a certainroute on issues related with socialand public life;
"Picket" - gathering in a certainplace of a small group of personsparticipating in a demonstrationexpressing their opinion on issuesrelated with social and public life.
The restricted classification ofthe mass events in the Law createsproblems in practice. That is con-ducting any actions other than thetypes classified by the Law is notallowed. However, there are manyother types of the mass eventsapplied in practice of other coun-tries. The difference between thedefinitions of "gathering" and"meeting" as prescribed by the Lawis not clear. The Law does not regu-late a number of other forms ofassembly. The gatherings held in theplaces which are in private owner-ship of persons, under rent or inother form of lawful usage by per-sons are not regulated by the Lawon Freedom of Assembly.
For instance, the Law does notregulate a meeting held at a privatestadium while the same form of ameeting falls under the Law if heldat the stadium owned by stateorganization or municipality.
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Meanwhile the gatherings held atthe places in question are also con-sidered as mass events and fallunder the influence of the law inmany countries.
Wedding and funeral cere-monies, holiday and mourningevents, religious ceremonies, publicevents held in enclosed spaces donot fall under the Law either.
The definition of fortuitousassembly reflected in part IV ofArticle 5 of the Law is not interpret-ed thoroughly. In this case, thegathering of fans or spectators aftera sport event or a big concert inorder to conduct discussions alsofalls under the influence of the Law.Although such kind of events aredifferent from the features of free-dom of assembly as reflected in theArticle 11 of the EuropeanConvention. The mass events fallingunder the protection of Article 11 ofthe Convention are first of all thoseactions aimed at ensuring self-expression, freedom of faith, free-dom of thought as well as massactions held in the form of meeting,street procession, picket and etc.
Generally, in legislation, thenotion of fortuitous assemblies isreminded only in the part IV ofArticle 5 of the Law and it is notinterpreted thoroughly. However,from the content of the Law it ispossible to conclude that the fortu-itous assembly is the analogue of thespontaneous assembly existing ininternational practice. But the exist-ing practice in the country lies onthe grounds that gathering unex-
pectedly and without prior notifica-tion for the purposes stipulated inthe Law on "Freedom of Assembly"is assessed as a gathering not sanc-tioned by the authorities. The peo-ple who gathered in front of the"Musavat" Party immediately afterthe October 15, 2003 Presidentialelections aiming to protest againstthe preliminary results of the elec-tions were subject to violation bypolice due to assessment of thisgathering as unauthorized.Although this gathering was sponta-neous according to its character,taking into account that the votersrelying on their internal demandstarted to gather in front of the elec-tion headquarter of the main oppo-sition candidate, aiming to protestagainst the results of the elections.
The recommendations reflectedin the 4.3 part of the "Guidelines onFreedom of Peaceful Assembly"(December, 1994) prepared by theOffice for Democratic Institutionsand Human Rights (ODIHR) of theOSCE notes that "spontaneousactions can continue peacefully solong as it is lawful in nature". In thiscase, dispersal of this gathering isthe violation of the freedom ofassembly.
Organization of Assembly andOrganizers
Written notification must be sentto the relevant body of executivepower to organize an assembly.Pursuant to the Article 5 of the Law
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on "Freedom of Assembly", thisnotification has to be submitted atleast 5 days prior to the day of con-vening intended assembly. The writ-ten notification must include nameof an intended assembly, purpose,place and time of convening anassembly, approximate number ofparticipants, if it is a street proces-sion, a proposed route (a place ofbeginning, distance and place ofending the procession), full nameand address of organizers of anassembly, date of submission of awritten notification, contact phonesor if not available contact addresses.All organizers of an assembly haveto sign the written notification.
The Article 5 of the Law does notconsider giving notifications for for-tuitous assemblies. At the sametime, fortuitous assemblies can berestricted or suspended in casesimposed in conformity with law. Asis seen, the Law stipulates too manyrequirements regarding the contentof the notification letter. In fact, anotification should be about theintention of a political, social organ-ization or a group of persons to con-duct mass event. Here the require-ment about the approximate num-ber of participants can be importantto determine the number of theforces adequately who will ensurepublic order, while the requirementof detailed information about thepurpose of an assembly is irrelevant.In practice, there are such cases thatbodies of executive power even putdemands to submit written notifica-tion about the verbal and written
slogans that would be sounded ordemonstrated at the mass event.Pursuant to the Article 6 of theLaw, organizer of a gathering is aperson whose name is mentioned ina written notification submitted tothe relevant body of executivepower. According to the Law, per-sons under 18 or persons whosecapability is restricted by the courtdecision that entered into legal forcecannot be organizers of a peacefulassembly.
At the same time, foreigners andnon-nationals cannot be organizersof a peaceful assembly pursuingpolitical goals. However, the free-dom of assembly mentioned in theArticle 49 of the Constitution ofRepublic of Azerbaijan as well asparticipation in and organization ofsuch assemblies is not referred onlyto citizens but also to foreigners andnon-nationals. The expression of"everyone" reflected in the article ofthe Constitution refers both to thecitizens and to foreigners having nocitizenship. The Law only prohibitsforeigners and non-nationals to beorganizers of a peaceful assemblypursuing political goals, which is inconformity with the Constitutionand relevant internationalcovenants to which Republic ofAzerbaijan is a party.
Grounds and Order of Restrictingor Prohibiting Peaceful Assemblies
The "freedom of assembly" pre-scribed by the Article 49 of theConstitution of Republic of
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Azerbaijan can be restricted in con-formity with the cases determinedby the Constitution andInternational Covenants to whichRepublic of Azerbaijan is a party.According to Article 3 of theConstitutional Law on "Regulationof the Exercise of Human Rightsand Freedoms in the Republic ofAzerbaijan", freedom of peacefulassembly may be restricted or pro-hibited for the purposes of prevent-ing legal disorder and protection ofpublic order.
Both pursuant to the Consti-tution of the Republic of Azerbaijanand the international covenants towhich Republic of Azerbaijan is aparty, the freedom of peacefulassembly is classified as fundamen-tal freedom and restriction or prohi-bition of this right shall be used asexceptional case or measure of lastresort.
The Law on "Freedom ofAssembly" stipulates broaderrestrictions and prohibition than thecases determined as grounds forrestrictions and prohibition definedby the Constitution and internation-al covenants. The majority of theserestrictions and prohibitions exceedthe limit "as prescribed by law andare necessary in a democratic socie-ty".
That's why we think that restric-tion or prohibition of the freedomof assembly by this Law was consid-ered not as an exceptional case butas a rule. The essence of the Lawdoes not serve for ensuring this rightbut to preventing it.
According to part I of the Article7 of the Law, restrictions shall beimposed on following cases:
protection of public interestsand interests of a national security;
prevention of violation of apublic order;
prevention of disorder orcrime;
protection of health of apopulation;
protection of morals;protection of rights and free-
doms of others.
In the abovementioned cases thefreedom of assembly can be restrict-ed in any forms including change oftime and place of an assembly.
The Part III of the Article indi-cates that while imposing restric-tions on freedom of assembly in theabovementioned cases proportion-ality must be taken into considera-tion. However, the proportionalityis not taken into account whileimposing restrictions in practice andas a result the imposed restrictionturns out to be inadequate. Thenecessity for applying restriction orprohibition contrary to the require-ments of Law is not substantiated.
The Article 8 of the Law stipu-lates the cases for prohibiting or sus-pending of assemblies. The follow-ing assemblies shall be prohibited bylaw:
assemblies accompanied bycalls to discrimination, hostility,violence, propagandizing national,racial or religious discord;
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assemblies propagandizingwar;
Holding peaceful assemblies pur-suing political goals shall be prohib-ited by law in the following cases:
24 hours prior to the day ofelections of President of theRepublic of Azerbaijan (on stateterritory), elections of deputies toMilli Mejlis (Parliament) of theRepublic of Azerbaijan (on stateterritory), elections of deputies toAli Mejlis (Parliament) ofNakhchivan Autonomous Republic(on the territory of NakhchivanAutonomous Republic), municipalelections (on the territory of respec-tive city and region) and till closureof constituencies on a day of elec-tions;
24 hours prior to the day ofreferendum and till closure of con-stituencies;
during the period of prepa-ration for international events ofstate importance determined by thedecision of the relevant body ofexecutive power and on days ofholding them on the territory ofcities and regions where they areconducted.
Except the last case, the prohibi-tion of the peaceful assemblies byLaw in the abovementioned casesdoes not contradict the principlesreflected in the Constitution ofRepublic of Azerbaijan andInternational covenants to whichAzerbaijan is a party. But the prohi-bition of the assemblies "during theperiod of preparation for interna-
tional events of state importanceand on days of holding them" vio-lates the right for freedom of peace-ful assemblies. At the same time, itis not clear by the Law that whatkind of events are stipulated by"international events of state impor-tance". Holding mass protestactions by anti-globalists during theday of economic forums or summitsattended by the heads of the bigcountries in many other states is acommon case. Despite of the factthat in many cases such kind ofassemblies are not peaceful, thiskind of assemblies are accepted asnecessary event in a democraticsociety and they are not prohibited.
Since there is no interpretationby the Law, relevant bodies of theexecutive power may refer a forumattended by representatives of sever-al countries, an international filmfestival, or an exhibition as "interna-tional events of state importance"and indeed, there are such cases,which have taken place in practice.
The relevant bodies of executivepower adopt order on prohibition inthe abovementioned cases.
An assembly can be suspendedby an order of the relevant body ofexecutive power observing restric-tions provided for in part 1 ofArticle 7 of the Law. Though theprohibition and suspension of theassemblies are considered as a meas-ure of last resort in Article 8 of theLaw, it is not exercised as a rule inpractice. The relevant bodies use theprohibitions and restrictions pre-scribed by the Law as the main
14
argument for not allowing to holdassemblies and as mentioned abovethey do not provide any serious sub-stantiation for such a necessity.
The Article 8 of the Law alsostipulates restriction and prohibi-tion of the assemblies during theperiod of effective state of emer-gency and on the territories where itis applied. This part is also reflectedin the Constitutional Law on"Regulation of the Exercise ofHuman Rights and Freedoms in theRepublic of Azerbaijan".
The Place and Timeof Assemblies and Restrictions
The Article 9 of the Law on"Freedom of Assembly" determinesrestrictions related with the placeand time of conducting assemblies.Restrictions imposed on place andtime of conducting a peacefulassembly shall be made in accor-dance with the criteria determinedin Article 7 of the Law as well as infollowing cases:
- if another event is arranged atthe place and time stipulated in awritten notification of organizers ofan assembly.
In this case, a relevant body ofexecutive power shall provide a pos-sibility for organizers to determineanother place and time. A writtennotification about the changed timeand place shall be submitted to therelevant body of executive power nolater than 3 days prior to a new dateof an event.
In general the Law determines
the places where conducting ofassemblies is prohibited. Accordingto part III of Article 9 of the Law on"Freedom of Assembly" conductingof gatherings, meetings and demon-strations in the following placesshall be prohibited.
- in a radius of 300 meters aroundbuildings of legislative, executiveand judicial powers of the Republicof Azerbaijan;
- on the territory where railway,oil and gas pipelines and electricwires of high tension pass;
- in places allocated by relevantbody of executive power for con-ducting special state events;
- on the territory used for mili-tary purposes and in places locatedcloser than 300 meters to the bound-aries of these territories;
- in institutions of confinement,on the territory of psychiatric med-ical institutions and in places locat-ed closer than 300 meters to theboundaries of these territories.
It would be normal to acceptrestrictions on conducting of assem-blies at certain places as stipulatedby the Law. But prohibition ofassemblies at the places allocatedfor special state events all the timeby Law is nothing more than unnec-essary restriction of the freedom ofassembly. For instance, if a square isallocated for special state event thenconducting of other events can berestricted on the eve and time ofholding such special state event. Butit is needless to impose such restric-tions in other times.
The biggest square of Baku city
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"Azadlig" Square is allocated forconducting of special state events inaccordance with order of thePresident of Azerbaijan Republicand holding any assembly here isprohibited. Prohibition of thissquare for exercising of freedom ofassembly is not clear while tradi-tionally all mass events are conduct-ed in this place. This square is verysuitable place due to its space, loca-tion in a certain distance from thedwelling houses and does not createany obstacles for public transport.State events are conducted in thissquare (one or two times during ayear at best) very rarely. In fact, thisorder by the President leads torestriction of the freedom of assem-bly prescribed by the Article 49 ofthe Constitution.
Restriction of conducting gather-ings, meetings and demonstrationsin a radius of 300 meters aroundbuildings of legislative, executiveand judicial powers means that suchkind of events cannot be held in thecentral part of capital Baku city atall. Since the points of location ofthese bodies do not allow that. Anycentral part of the city falls withinthe 300 meter radius of one of thementioned bodies. We can considerthat this part of the Law alsorestricts the freedom of assemblywithout any grounds.
The Law also prohibits conduct-ing of assemblies of political contentin places of worship, chapels andcemeteries.
There are also restrictions forholding pickets. In general, it is not
expedient to put demands for sub-mission of written notification forholding pickets within the sameterms as for conducting other massevents. In practice of many coun-tries, there is no such demand forsubmitting notification to a relevantbody of executive power for holdingpickets or they have more simplifiedform of notification. According tothe Law, the number of picketersshall not be more than 50 personsand they shall not be located closerthan 10 meters to the entrance of apicketed object, shall not makeobstacles for entry and exit into thepicketed object. Picketers cannotuse amplifiers above 10 watt.
One of the parts, which provideunnecessary grounds for imposingrestrictions on places for conductingassemblies on the level of legisla-tion, is, reflected in part IV of theArticle 9 of the Law. According tothis part, relevant bodies of execu-tive power shall provide a specialarea for conducting gatherings,meetings and demonstrations ineach city and region. Organizers ofan assembly can choose only one ofthe places designed for gatherings,meetings and demonstrations andconduct the assembly in that place.
This part of the Law leads to seri-ous Constitutional abuses in prac-tice. The relevant bodies of execu-tive power of city and regions deter-mine such places which in manycases results in losing importance ofan assembly and turn to be unat-tainable for most of the partici-pants.
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For instance, limited places areprovided for conducting massevents in capital Baku city. As arule, these places are located in tensof kilometers away from the centerof the city where there is no publictraffic and those places do not meetsanitary and hygienic requirementsnecessary to conduct an assembly.
Following the elections to theParliament, which took place at theend of 2005 year, conducting of anyassembly was de facto prohibited.Only after the demands of the socialand political forces existing in thecountry as well as the internationalcommunity, the Head of theExecutive Power of Baku city allo-cated places for conducting gather-ings, meetings, demonstrations andstreet processions by the order #318adopted on October 27, 2006 year,referring to the part IV of Article 9of the Law on "Freedom ofAssembly". These places are as fol-lowing:
Sabayil district- the stadiumof "Neftchi" Sport and HealthCenter located in Bibiheybat;
Nizami district - the squarelocated on the way from RustamRustamov street to Baku OilRefinery named after HeydarAliyev;
Khatai district - Ukrainesquare;
Surakhani district - the sta-dium of "Neftchi" Sport and HealthCenter named after Tofiq Ismayilov
The routes for holding street pro-cessions have been determined in
the allocated places too. They are:
Nizami district - starts nearthe "Neftchiler" metro station(Dakar square), passes throughRustam Rustamov street and up tothe square located near the Baku OilRefinery named after HeydarAliyev (distance - about 1, 600meters);
Khatai district - starts near"Hazi Aslanov" metro station, pass-es through Mahammad Hadi streetand up to Ukraine square (distance-1,200 meters);
Surakhani district - passesthrough the square named afterSattar Bahlulzadeh and up to thestadium of "Neftchi" Sport andHealth Center named after TofiqIsmayilov (distance - 1,000 meters).
The order stipulates that time forconducting of a gathering or timeand route for holding street proces-sion shall be agreed with theExecutive Power of Baku city.
The Head of Executive Power ofGanja city, the second biggest cityof the Republic has adopted order#171 on May 11, 2005 year on con-ducting gatherings by referring tothe Law on "Freedom of Assembly".According to the order "Spartak"stadium (59 Aziz Aliyev Street,Ganja city) is provided for conduct-ing meetings and gatherings.
Thus, all mass gatherings irre-spective of number of participantsand the form of the assembly can beconducted in one of the places allo-cated by the bodies of executive
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power (the places have been deter-mined in other cities and regions ofthe country in the same way) andplus by coordinating with the execu-tive power (not by submitting notifi-cation!). Even in these places, it ispossible to prohibit conducting ofan assembly at any time by referringto Article 7 of the Law.
The places allocated in Baku cityare located in 15-25 km distancefrom the center. These places nei-ther heavily populated nor have anyamenities.
Thus, application of part IV ofthe Article 9 of the Law on"Freedom of Assembly" restricts thefreedom of assembly reflected in theArticle 49 of the Constitution. Theorders of the bodies of executivepower almost prohibit to conductgatherings in all other places exceptin the several areas that had beendetermined. The bodies of executivepower do not provide any groundsto justify allocating the placeswhich are located far away from thecity center and which in many casesdo not meet sanitary and hygienicrequirements as well as while pro-hibiting conducting of gatherings inother places. The defect that thispart of the Law creates in practiceresults in violation of the fundamen-tal rights - right for freedom ofassembly. The gatherings conductedin all of other places are dispersedby police forces with special cruelty.
As mentioned above, in fact con-ducting mass events in the placesdetermined in Baku city results inreducing their importance to zero,
because the main objective of a massevent is to direct the interest of pop-ulation and state bodies to settle-ment of a problem, conduct discus-sion of that problem with broadmasses of population and makedemands. Obvious, that it is notpossible to direct attention of broadmasses of population or a relevantstate body to the raised problemwhile conducting such events at theplaces with weak public transport,far from settlements and at enclosedstadiums.
According to part VIII of Article9 of the Law on "Freedom ofAssembly" in summer time anassembly can be held from 8.00 till19.00 and in other periods of a yearfrom 9.00 till 17.00. So the assem-blies are regulated with timeframethrough the Legislation. It meansthat according to the Law it is notpossible to conduct continuingassemblies. Although conducting ofconsistent mass events has become atradition in the country by the 90thof last century.
We think that there should be alegislative guarantee for the partici-pants of a peaceful assembly to con-tinue their assembly for long periodin the place where they gathered. Ifan assembly is peaceful then the par-ticipants should have the rights tostay overnight at the squares, put uptents and conduct continuingactions like in many other countries.Since a peaceful assembly is also aform of direct pressure then con-ducting an assembly at intervals inmany cases restricts the power of
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pressure of the participants and theassembly cannot play the role ofdirect tool of pressure.
Appeal Procedure
Pursuant to Article 11 of the Lawon "Freedom of Assembly" all thedecisions provided for in Article 7-9of the present Law can be appealedin a relevant court. A complaintshall be considered by court within 3days. Court decisions on these com-plaints can be appealed before supe-rior courts. Although there is anaccess provided by the Law toappeal to a court related withrestriction, suspension or prohibi-tion of the freedom of assembly, theexisting gaps in the legislation makesuch an appeal ineffective. That isthe Law stipulates 3 days for con-sideration of a complaint by thecourts. The practice in the countryshows that the bodies of executivepower announce the decision onprohibition of conducting a massevent one day ahead of the timeplanned. In best case, an organizerof mass event can present complaintto a relevant court on the day whenplanned to conduct the mass event.It means that the planned massevent cannot be conducted anymore, even if a court reverses thedecision of the body of executivepower on prohibition of mass eventon the third day of considered peri-od.
The 4.4 part (Prohibition of MassEvent) of the "Guidelines onFreedom of Peaceful Assembly"
(December, 1994) prepared by theOffice for Democratic Institutionsand Human Rights (ODIHR) of theOSCE recommends that "it is impor-tant to consider before the timeplanned for conduct of an assembly.This will allow the organizers of anassembly to conduct the assembly incase of reversal of the decision onprohibition by the court". As is seenthe Article 11 of the Law on"Freedom of Assembly" does notcorrespond with the Guidelines ofOSCE. This Article also violates therequirements of the Article 11 alongwith Article 13 (The Right to anEffective Remedy) of the EuropeanConvention. (see: B?czkowski andothers v. Poland. Application no.1543/06).
The Law should have a partobliging the bodies of executivepower to notify organizers before-hand when prohibit a mass event sothat the organizers could achieveconsideration of their complaints bycourt within 3 days according toArticle 11 of the Law and if courtturns decision for conducting massevent they can conduct the event inplanned time.
Orders for ConductingAssemblies and Accountability for
Breaching These Orders
The IV Chapter of the Law on"Freedom of Assembly" regulatesthe order of convening Assembly.
The Article 12 of the Law deter-mines the rights and duties oforganizers of assembly. The stan-
19
dard principles related with therights of the organizers are reflectedin the Article. According to theArticle of the Law organizers of anassembly shall use all availablemeans for ensuring that an event isconducted peacefully and in accor-dance with the law, pursuant to con-ditions stipulated in a written notifi-cation and applicable to an assem-bly. Organizers of an assembly musthave clearly visible signs distin-guishing them from other partici-pants. The organizers are prohibitedto carry on them spitfire and coldsteel, as well as articles that can cre-ate a danger for life and health ofpeople. In case of prohibition theorganizers must use all availablemeans to inform its participantsabout prohibition of the assembly.The organizers of an assemblywhich was suspended by the orderunder part V of Article 8 of the pres-ent Law must also use all availablemeans to inform participants aboutprohibition of the assembly.
The organizers who fail to fulfillthe duties reflected in the Article 12of the Law on "Freedom ofAssembly" are subject to adminis-trative and criminal liability.Pursuant to the Article 298 of theCode of Administrative Torts of theRepublic of Azerbaijan, violation ofthe established procedure for organ-ization and conduct of assemblies,meetings, demonstrations, ralliesand pickets -is punishable by awarning or fine. The Article 301 ofthe Code of Administrative Tortsstipulates more serious administra-
tive punishments especially in casesof breach of prohibition on conductof mass events. Here the amount ofpenalties is high and restriction offreedom considers imprisonment forthe term of up to 15 days.
In practice, application of moresevere administrative punishmentsas well as administrative imprison-ment is widespread even in routinecases for convening and participat-ing in the gatherings not authorizedby the bodies of executive commit-tee. The practice of applying admin-istrative fines and administrativeimprisonment under the name ofdeliberately refusing to obey lawfuldemands of a police officer or a mil-itary official, resistance to policeand etc. is also widespread.Criminal liability is also consideredfor breaching the order of conduct-ing an assembly. The Article 169 ofthe Criminal Code of the Republicof Azerbaijan considers criminalpunishment for the breach of theorders for conducting an assembly.The Article 169.1 states that "Theorganization, implementation orparticipation in assemblies, in thecases forbidden by the law, whichbrought to essential infringement ofrights and legitimate interests of cit-izens - is punished by the penalty ata rate of up to 300 of nominal finan-cial unit (about USD$ 380- MG) orrestriction of freedom for the termup to one year, or corrective worksfor the term up to two years, orImprisonment for the term up totwo years". Pursuant to the Article169.2 "Carrying by participants of
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assembly during its implementationfire or a cold steel or explosives anddevices, as well as other substancesand subjects representing danger tolife and health of associates - is pun-ished by the penalty at a rate from100 up to 500 of nominal financialunit (about USD$ 126- 633 -MG),or restriction of freedom for theterm up to one year, or correctiveworks for the term up to one year,or imprisonment for the term up tothree years".
In the national practice, the mostapplied types of punishment forparticipation in the meetings notauthorized or prohibited by thebodies of executive power areadministrative imprisonment for upto 15 days, imposing fine and insti-tution of criminal proceedingsunder article stipulated for breach-ing the orders established for con-ducting an assembly, resistance toauthority or use of force. Thoseprosecuted to administrative andcriminal liabilities are usually theorganizers, participants and acci-dental bystanders of an assemblywho are detained while dispersal ofthe mass events considered as illegalfrom the point view of the authori-ties.
At the same time, there is a prac-tice of applying more severe punish-ments against the organizers andparticipants of an assembly. Mostof the participants and organizers ofthe assemblies held to protestagainst falsification of results ofOctober 2003 presidential electionswere subject to criminal proceedings
under the Article 220 of CriminalCode - mass disorder and prosecu-tion and court proceedings wereheld. The gravest punishment in thesanction part of this Article consid-ers imprisonment from 4 to 12 yearperiod. There are also cases in thenational practice when criminalproceedings were instituted underthe mot severe articles against theorganizers and participants of theassemblies being of exceptionallypeaceful character and applicationof imprisonment before trial.Administrative imprisonment andattracting to criminal liability of theparticipants of an assembly con-ducted peacefully but whose peace-ful character changed after interven-tion of police (just after police viola-tion) is a routine case.
Rights and Duties of Participants
Although the Article 13 of theLaw on "Freedom of Assembly"dedicated to the rights and duties ofa peaceful assembly, the Articlestarts with duties not rights. TheArticle states that participants of anassembly must observe restrictionsspecified in accordance with Articles7 and 8 of the present Law.Participation in an assembly is vol-untary and no one can be forced toparticipate in an assembly. Thosewho force someone to participate inassemblies shall bear responsibilityin accordance with the legislation.Participants of an assembly shallenjoy the right of freedom ofthought and speech orally and in
21
written during assemblies. However,realization of this freedom can berestricted in accordance with theConstitution of the Republic ofAzerbaijan and internationalcovenants to which the Republic ofAzerbaijan is a party. According tothe duties placed on participants ofan assembly, they must assist in pro-tection of public order and use allavailable means for observing law-ful requirements of organizers aswell as representatives of the rele-vant bodies of executive power.
The Article states that a partici-pant of a lawful assembly cannot belater brought to responsibility forparticipation in such an assembly.Only the participants of a lawfulassembly who violate the law can bebrought to responsibility.
This part allows the authoritiesto bring before responsibility theparticipants of any assembly whichis not authorized by a relevant bodyof executive power - even if the par-ticipants of that assembly do notviolate the law. Mere participationin an assembly which is consideredunlawful by the authorities alreadycreates liability. In the nationalpractice, administrative punishmentand administrative imprisonmentfor the participation (only for par-ticipation!) in the assembly notauthorized by a relevant body ofexecutive power is widely applied.
The Law prohibits the partici-pants of an assembly to carry onthem spitfire and cold steel, as wellas articles that can create a dangerfor life and health of people. (These
articles are enumerated in the Law -MG).
In case if an assembly suspendedby a relevant body of executivepower in accordance with the casesas determined by legislation then theparticipants of an assembly mustdisperse.
The Article 13 of the Law doesnot define a participant of an assem-bly. That is there is no differencebetween the people who attend anassembly intentionally and the peo-ple who turn to be a participant ofan assembly accidentally. In prac-tice, there are many cases when acci-dental participants and observers ofan assembly also find themselvesamong the people who suffer of dis-persal or brought to administrativeliability. The observers and humanrights defenders have many timesregistered the cases when the peoplewho accidentally pass through theplace of assembly and bystanders ofan assembly were bought to admin-istrative liability and subject to vio-lation by police along with the par-ticipants of an assembly consideredas unlawful by the authorities.
Authorities of Police and Use of Force
The most comprehensive Articleof the Law on "Freedom ofAssembly" is the Article 14. ThisArticle determines powers of bodiesof police in regards with conductingan assembly. It should be taken intoconsideration that the "Law onPolice" and Law on "Status of
22
Internal Troops" also have certainparts dealing with an assembly.
Pursuant to the Article 14 of theLaw on "Freedom of Assembly" thebodies of police have the power tocheck the place of convening anassembly a day before the event.
The bodies of police also havethe rights to
suspend when necessary anassembly which did not have a writ-ten notification except assembliesprovided for the present Law;
suspend when necessary anassembly if holding of this assemblydoes not meet the conditions stipu-lated in a written notification;
detain individuals who cameto an assembly with spitfire and coldsteel, with articles that can create adanger for life and health of peopleand to send them away from theplace of holding an event or conductpersonal examination of individualswho are seriously suspected in car-rying such articles.
The expression that "an assemblyholding of which does not meet theconditions stipulated in a writtennotification" is abstract and createsconditions for willful acts by policein practice. There were many casesthat the police warned to suspendthe mass event when there weredeviations from the topics stipulat-ed in a written notification or sharpcriticism sounded against theaddress of the political power of thecountry. We think that this partrestricts freedom of assembly,thought and speech and does not
correspond to the internationalstandards.
Confiscation of the wooden han-dles of the transparencies broughtby the participants of an assemblyand broad application of conduct ofpersonal examination of individualswithout any grounds for suspicionare the methods used by the policeforces in many cases to reduce thenumber of the participants of anassembly.
Bodies of police enjoy large pow-ers with regard to ensuring prohibi-tions provided for in parts I-III ofArticle 8 and Article 7 as well asorders provided for in parts IV andV of Article 8 of the Law on"Freedom of Assembly". The grant-ed powers also include informingorganizers and participants aboutthe suspension of an assembly andits dispersal, ordering organizersand participants of an assembly touse all available means for suspen-sion of an assembly and for partici-pants to disperse, as well as warnorganizer and participants that aforce will be used against them incase of refusal to observe the orderon suspension.
The police also have the powersto use relevant force for the suspen-sion of an assembly and dispersal ofits participants and detain individu-als who refuse to follow the order ondispersal.
Prohibition of conduct of anassembly with the order of relevantbody of executive power or refusalto authorize an assembly by the rel-evant body of executive power in
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reply to written notification submit-ted about conduct of an assembly orsounding the slogans at an assemblywhich are not agreed beforehandare enough for the police forces todisperse an assembly by using forceand detain organizers and partici-pants of an assembly. The suspen-sion and dispersal of the assembliesare indicated as the measure of lastresort by the Law. However, theLaw does not interpret the notion ofthe measure of last resort and whatare the other existing measuresbefore the measure of last resort. Itcreates some problems in applica-tion of the Law.
The Article 27 of the "Law onPolice" stipulates "to use physicalforce, special means and firearmsonly as a means of last resort andfor purposes of necessary defense,should all other means of influencefail to procure desired outcome, aswell as to the degree proportionateto the gravity of the offence and per-sonality of the offender". TheArticles of 19, 20 and 21 of the Lawon "Status of Internal Troops" ofthe Republic of Azerbaijan alsodefines the terms and limits for useof physical force, special means,firearms, weapons and equipmentas well as rules for application ofphysical force and special means.
Use of physical force, specialmeasures and arm fire against theparticipants of an assembly shouldbe adequate. Otherwise, "use ofphysical force, special means, arms,weapons and equipments by themilitary officials through abuse of
authorities can lead to liabilities asdefined by legislation".
Issues Not Regulated By Law
There are a number of issues notregulated by the Law on "Freedomof Assembly" which create obstaclesin ensuring the freedom of peacefulassembly. Though the part IV ofArticle 5 of the Law includes theexpression of "fortuitous assembly",there is no any part explaining thedefinition of and orders for con-ducting such an assembly.According to the same part, restric-tions specified in accordance withArticle 7 and 8 of the Law can beapplied to such assemblies. Absenceof the parts related with conductingof counter-meetings, spontaneousmeetings and demonstrations aswell as other types of mass eventsalso impedes ensuring the rights forfreedom of assembly.
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Within the project 'Monito-ring of Observance of theFreedom of Assembly
in the Republic of Azerbaijan"Citizens` Labor Rights ProtectionLeague conducted public opinionpoll on protection of the right topeaceful assembly in the Republic ofAzerbaijan. Opinion poll was target-ing primarily activists of the politicalparties and public unions. Respon-dents were selected by the "snowball" method, when identification ofthe respondents was conductedthrough informal networks createdon the basis of political parties and pub-lic unions. However, affiliation withparty or organization was not an ulti-mate criteria and non-party men andwomen, who ever participated in peace-ful assemblies had been also encom-passed during the poll.
Hence, the major criterion for selectionof the respondents was information abouttheir participation in various assemblies ofdifferent scope to express their politicalpositions or preferences. The interviewwas carried out mainly in Baku as well asother towns of Azerbaijan such as Ganja,Sumgait and Ali-Bayramly.
In total survey was conducted among110 people. The largest age group repre-sented was people of the middle age - from35 to 54 years old (Diagram 1). The major-ity of the respondents are men -82% andonly 18% are women (Diagram 2).
Diagram 1: Age groups of therespondents
Diagram 2: Gender of respondents
One of the key moments of the sur-vey was identification of the majorgroups of respondents based on theirinvolvement in preparation, organiza-tion and conduct of the mass events.
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MONITORING REPORT
RESULTS OF SOCIOLOGICAL INTERVIEW CONDUCTED AMONGPOLITICAL PARTY AND PUBLIC ORGANIZATION ACTIVISTS
While responding to the question: "Inwhat capacity have you been involvedin the assemblies most often?" themajority of the respondents (65%)defined their status as participants orinvitees to the events, who are notactively engaged in preparations andorganization of the events (fur-ther we will refer to this grouponly as 'participants'). The rest(35%) defined their status asorganizers of the mass eventwho were engaged in planning,arrangement and conduct ofthe event (further we will referto this group as 'organizers').
Diagram 3: Type of participa-tion in assembly
The majority of respondentsindicated their membership in politicalparties (80 people), the next groups arenon-partisans (23 people) and activistsof the public unions and organizations(7 people). The detailed depiction ofthe respondents based on their mem-bership in political parties and publicunions is given in Diagram 5. Thus,41% of the survey participants indicat-ed their affiliation with the AzerbaijanPopular Front Party, 8% with "YeniAzerbaijan Party", 5% with
"Azerbaijan Social DemocraticParty", 38% with "Musavat" Party and8% pointed to the membership in dif-ferent public unions and organiza-tions.
Diagram 4: Political affiliations ofrespondents
Diagram 5: Membership in politicalparties and public unions
Political activity among both partici-pants and organizers of the events isvery high. The majority of respon-dents indicated that they participatedin assemblies not less than five times ayear (Diagram 6). Some of the mem-bers of "Musavat" and Popular Frontpolitical parties, especially the organiz-ers participate in the assemblies organ-ized solely by their political parties.
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Diagram 6: Political activity ofrespondents
Another interesting fact to note isdepiction of the types of assemblies, inwhich respondents participated mostoften (multiple answers to this ques-tion were possible). Thus the majorityof the respondents ticked off all typesof assemblies indicated in the form. Asfollows from Diagram 7, most oftenrespondents participated in meetings(41%), pickets (29%), and street pro-cessions (25%). However, somerespondents added to the list roundtables and conferences (5%). The rea-
son for enlargement of the given list byrespondents was explained further inthe answers to the next questions,when they revealed picture of con-strains for organization and conduct-ing of such event. Respondents con-sidered it important to note this fact,even peaceful assemblies held at placesof private ownership or rented, such asround tables or conferences are notregulated by the Law on "PeacefulAssembly" of the Republic ofAzerbaijan".
Diagram 7: Types of assemblies
The majority of respon-dents participated in eventsorganized in the capitalBaku city (65%), howeverthe geographical scope ofassemblies encompassedalso other towns ofAzerbaijan such as Ganja,Sumgait, Ali-Bayramli andShamkir (Diagram 8).
Diagram 8: Place of assemblies
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While answering the questionwhether respondents faced any diffi-culties while preparations for theassemblies, the majority of inter-viewed organizers replied positively(76%), whereas about every of fourorganizers noted that did notencounter any difficulties. Amongparticipants of the assemblies 65%assume that challenges connectedwith organization and preparationfor the event exist, while one third ofthe interviewees think that there areno any special hindrances at all.
Diagram 9:Challenges related to
organization and conduct
of the assemblies
All of the organizersand participants ofthe assemblies, whogave positiveresponse to the previ-ous question, weresupposed to providebrief explanation of what types ofchallenges they can indicate based ontheir experience:
Table 1
To the question that whether respon-dents faced any problems directlywhile conduct and participation in theassemblies, the overwhelming majori-ty replied positively (80%). It is impor-tant to note that differently from theprevious question, the percentage oforganizers and participants givingpositive replies are almost the same(82 % of participants and 80% oforganizers). Meanwhile percentage oforganizers and participants, who didnot agree that problems connectedwith conducting of the events exist,
differs. That is 13% of organizers and6% of participants responded thatthere were no problems related withconduct of assemblies.
Correspondingly 5% and 14% ofrespondents said it was hard toanswer this question.
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Diagram 10: Challenges connectedwith carrying of the assembly
Respondents provided briefdescription of the following chal-lenges and problems, which theyfaced during the period of conduct-ing assembly:
Table 2
At the same time it is very importantto note political affiliation of respon-dents when analyzing answers to theabove mentioned four last questions.All members of political parties andpublic unions (except member ofNew Azerbaijan party), 90% in total,were explicitly indicating that they
face challenges on both stages whilepreparing for the assemblies and
while its conduct."Yeni AzerbaijanParty" membersand approximate-ly half of non-par-tisan respondentswere either deny-ing existence ofchallenges andproblems or didnot know theanswer. The next six ques-tions were addres-sed only to peo-ple, who replied
positively to the question number 9connected with challenges relatedwith preparation and conduct of theevents. Majority of respondents gave posi-tive answers while answering the next
question address-ing the problemof violence fromlaw-enforcementbodies during theassembly. So,76% of the or-ganizers repliedthat they weresubjected to actsof violence dur-
ing conducting the mass eventsassembly, 11% responded negativelyand 13% preferred not to respond tothe question. Among participants thenumber of people who were subject-ed to acts of violence is lower (54%),while 24% responded negatively and20% did not answer this question.
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Diagram 11: Application of violence by security forcesduring the mass events
The majority of the organ-izers responded positively tothe question that whetherthey were subjected to anyadministrative or criminalpenalties for their involve-ment in political activitiesand participation in assem-blies. Thus, 58% of theorganizers emphasized thatthey were subjected to differ-ent types of punishments fororganization and participa-tion in assemblies, 5% didnot want to answer this ques-tion and 37% were not subjected to any persecution. Among participants ofthe events, 44% testified that they were subjected to penalties, whereas 43%of participants never had this type of experiences. And 13% of participantsnoted it was difficult to answer this question.
Diagram 12 Application of the administrative or criminal penalties
Only those respondents who responded positively to the previous questionneeded to specify the types of penalties they were subjected to (multipleanswers were possible). The penalties applied against both participants andorganizers of the events include administrative arrest (35%), fine (32%), ille-gal detention at the police station (18%), criminal liability (6%), warning(5%), dismissal from work place (2%) and threatening by phone (1%). As is
seen from Diagram 13 organ-izers pointed out to more"traditional" types of penal-ties such as detention at thepolice station (23%), admin-istrative arrest (32%), fine(36%), and criminal liability(9%). Also participants ofassemblies added to the listsuch illegal penalties as dis-missal from work place andthreatening by phone.
30
Diagram 13: Types of penalties forpreparation or conduct
of the assembly
Although all of the respondents,who replied positively to the previoustwo questions and consider applica-tion of penalties against them as ille-gal, just few were ready to stand fortheir rights. The majority of appealsto any instances were prepared by theorganizers of the events. In total 17organizers (77% out of total numberof organizers who were subjected topenalties) decided to make the for-mal appeal. The percentage amongthe participants who decided toappeal is relatively low and makes up16 people (41%), whereas 23 people(59%) decided not to apply withplea (Diagram 14). This differ-ence can be explained by fewfactors and the main out ofthem is coordinated activities oforganizers, who usually do peti-tions collectively. Besides that,often organizers are well-known activists, who can usetheir own personal influence orrelations in order to appeal onbehalf of a party.
As follows from Diagram 15, thecomplaints and appeals of organizersand participants of the assemblies are
usually addressed to the sameinstances. The leading positionsare held by international organi-zations, 42% of all the appealsare made to them, then followedup by Embassies of the U.S. andNorway - 26%. Only 8 people(21%) forwarded their appeals tothe judicial bodies of Azerbaijan.Other variations of the responsesincluded preparations for appealto the European Court of
Human Rights, appeal to the non-governmental organizations andpublications of the complaints innational newspapers. It should benoted that none of the respondentsappealed with complaint to the gov-ernmental bodies, what reveals theproblem of distrust to the state bod-ies and biased attitude taken by thestate officials while consideration ofthese appeals.
Diagram 14: Complaints againstillegal acts
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Diagram 15: Instances where appeals are addressed
The majority ofrespondents of thesurvey showedhigh level of famil-iarity with theLaw on "Freedomof Assembly" ofthe Republic ofAzerbaijan. Themajority of organ-izers were eitheracquainted withthe Law complete-ly and thoroughly(71%), and everyfour organizer hadread main sectionsof the Law (26%). Only one person among organizers considered not impor-tant to be acquainted with the Law since it is not possible to enforce it inpractice. Among participants of the events the level of acquaintance was rel-atively low. Thus 51% asserted that they have learned the Law thoroughly,35% know its main sections and 8% had not read the Law, whereas 6% do notthink that being acquainted with the Law is important.
Diagram 16: Acquaintance with the Law on "Freedom of Assembly"ofRepublic of Azerbaijan
Based on theopinion of the res-pondents we candivide the hindran-ces against exercis-ing the "Freedomof Assembly" inAzerbaijan intofollowing groups.
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Table 3
Thus the majority of activists of thepolitical parties and public unionsshare frustration about implementa-tion of the freedom of peacefulassembly in Azerbaijan. The datareceived during the survey also con-firm that there are two politicalcamps that support completely oppo-site points of view. They are activistsaffiliated with "Yeni AzerbaijanParty" and non-partisans who sharetheir vision and confronting themactivists of the oppositional politicalparties and public unions and non-partisans who sympathize them. During the survey supporters of theruling party pointed out non-exis-tence of the challenges connectedwith implementation of the freedomof assembly in Azerbaijan and pre-sented oppositional parties as viola-tors of the Law who are responsiblefor all their problems. At the sametime supporters of the oppositionalcamp point out the restrictions con-nected with exercising their right topeaceful assembly. These restrictions
start at the phase of preparations forthe event, further followed duringconduction of the event, when forcesresponsibly for public order do notlet participants to enter place of theevent, prevent its holding, use differ-ent methods of pressure to intimidateparticipants and organizers and useinadequate force when trying to dis-perse assembly. Contradictory state-ments made by representatives of theoppositional camps point to absenceof dialogue among them and indicateabsence of will to start negotiationsto resolve the existing challenges.
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We analyzed the writtennotifications submit-ted by the leading
political parties, social institutionsand physical persons to the relevantbodies of executive power on con-ducting of an assembly in accor-dance with Article 5 of the Law on"Freedom of Assembly" and deci-sions adopted by the bodies of exec-utive power regarding those notifi-cations and letters of response. Wemainly analyzed 70 notification let-ters submitted by "Azadlig" Bloc ofPolitical Parties, by the partiesincluded to this bloc, NationalIndependence Party and Journalistorganizations.
The notification letters are devel-oped in accordance with require-ments of the legislation and submit-ted within the determined periods.
However the relevant bodies ofexecutive power in most casesresponded to those notification let-ters a day prior to the consideredevent. The main goal in respondingonly a day prior to an assemblymeant to prevent presenting a com-plaint to court. That is according to
Article 11 of the Law on "Freedomof Assembly" courts shall considercomplaints related with restrictionor prohibition of an assembly with-in 3 days. Thus, even if a courtreverses the decision on prohibitionof an assembly (such a case has nottaken place at national courts sofar) it would not be possible to con-duct the assembly in determinedtime.
Responses by the Bodies ofPower to Notification Letters
We analyzed responses and deci-sions related with more than 70notification letters submitted to thebodies of executive power and clas-sified them into 3 groups.
1. The bodies of executivepower strongly prohibit conduct ofan assembly and do not refer to anylegislative norm.
2. The bodies of executivepower respond to notification let-ters indefinitely, with an excuse that"not considered expedient".
3. The bodies of executive
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MONITORING REPORT
ANALYSIS OF ANSWERS OF RELEVANTBODIES OF EXECUTIVE POWER INRESPONSE TO NOTIFICATIONS ONCONDUCTING ASSEMBLY
power roughly violate the principleof proportionality in response toapplications related with conduct ofassemblies; provide places unfit toconduct of a meeting and gathering.
1. Bodies of Executive PowerStrongly Prohibit Conduct of
Assemblies
The bodies of executive powernegatively responded to multiplenotification letters on conduct of ameeting, street procession and pick-et, definitely prohibiting conduct ofassemblies. Such kind of responseswithout any grounds directly con-tradict the parts of the Constitutionof Republic of Azerbaijan.
For instance, Azerbaijan PopularFront Party (APFP) applied to theExecutive Power of Baku City onNovember 4, 2004 for conduct ofpicket in front of the building ofCabinet of Ministers. The ExecutivePower of Baku City prohibited con-duct of the picket by referring to thefact that the building of the Cabinetof Ministers is categorized as thebuildings protected for special stateimportance.
The Constitution of Republic ofAzerbaijan states: "Everyone has theright, having notified respective gov-ernmental bodies in advance, peace-fully and without arms, meet withother people, organize meetings,demonstrations, processions, placepickets".
The Constitution of Republic ofAzerbaijan guarantees the citizensto freely select the formation, con-
tent and conduct of assemblies byensuring the freedom of thoughtand speech. The parts of the Law on"Freedom of Assembly" referred bythe bodies of executive power whilemaking decision on "prohibition ofthe picket" can be subject in issue ofthe Constitutional Court. The flatrefusal by the Executive Power ofBaku City in response to the appli-cation for conduct of street-proces-sion, by referring to "arrival of highlevel officials for inauguration ofpipeline" can also be the subject ofcontroversy.
Those who applied for conductof assemblies consider that such abehavior by the bodies of executivepower leads to violation of theirlegal status which is guaranteed bybasic human rights and freedoms.Gathering freely and without spe-cial permission with others hasalways been considered as the sym-bol of freedom, independence andperfection of the people relying ontheir rights. However, when thisright is related with political gather-ings, ensuring the right for freedomof assembly is also referred to theright of self-determination, one ofthe basic rights, which is also relatednot only with the right to protectionfrom state intervention but also tothe right to free development of per-sonality. The notion of the right forfreedom of assembly which wasoriginated from the natural rights inAnglo-American legal system hasbeen understood since the beginningas the expression of people's sover-eignty and correspondingly as the
35
right of a citizen's active participa-tion in political process. The impor-tance of ensuring the right for free-dom of assembly is also asserted inthe European Convention. Inregards with fundamental rights, thereal effectiveness of this guarantee isrestricted only with the scope ofcontent of this right as defined bylegislation. This can also be referredin regards with the right of thoughtand speech. This right indeed hasboundaries: the parts of theConstitution assert guarantees forthis right within the laws governinggeneral activities but despite of that,the limits of exercising of this rightcan not be defined by conventionallaws.
The bodies of executive powershould take into consideration themain parts of the constitutionalrights while adopting restrictivedecision. The authorities shouldconsider that exercising of the rightfor freedom of assembly can berestricted only for the purpose ofprotection of those legal interestswhich have the same values as ofright for freedom of assembly and inthis case all restrictions must be inaccordance with the principle ofproportionality. In response to noti-fication letter to conduct a picket infront of the building of executivepower, the body of executive powergave prohibitive reply on December20, 2004 year and hereby violatedthe principle of proportionality. TheExecutive Power of Baku Citygrounds its prohibitive responsewith the fact that the mayor's office
is of special state importance. Thisargument of the city administrationis ungrounded and at the same timeis unproportional in accordancewith the importance and possibili-ties of exercising the right for free-dom of assembly.
If the bodies of executive powerand courts interpret and apply theparts of the law developed by thelegislative body in regards withrestricting the basic rights and free-doms, then this kind of interpreta-tion will also be applied related withthe right of speech. Restriction ofthe right of freedom of assembly isallowed only in cases if exercising ofthe right of speech by the partici-pants of an assembly contradictswith the rights of third persons. Butthe Executive Power of Baku City inits letter of response datingDecember 20, 2004 year to APFP'sapplication for conduct of picketstated that the behavior of the pick-eters would violate the rights ofthird persons, without providingany proof or grounds and prohibit-ed conduct of the pricket by "notconsidered expedient".
Even the state structures whenmake such decisions, the interpreta-tion of the laws restricting basichuman rights must be done from thepoint of fundamental importance ofthese rights in free and democraticsociety and steps taken shouldindeed be as important for protec-tion of legal interests as exercisingthe basic human rights and free-doms. The reference to the Law on"Freedom of Assembly" made by
36
the bodies of executive power whilerestricting the right for freedom ofassembly has crucial importance tomake preliminary examinationwhether the parts of this Law corre-spond to the requirements of theConstitution. The fundamentalimportance of the rights and free-doms in question must certainly betaken into account while interpret-ing and exercising the Law on"Freedom of Assembly".
The requirement of prior notifica-tion is defined by the Constitutionand the Law on "Freedom ofAssembly". The requirement fornotification is referred only for theassemblies conducted in open air,since such kind of events requiretaking special precautionary meas-ures against external influence. Thedata indicated in the notificationletter must provide necessary infor-mation to the bodies of executivepower. This is important for thebodies of executive power to takemeasures to regulate the traffic andensure conduct of assemblies freely.On the other hand the authoritiesshould understand that they need totake measures which allow to coor-dinate different interests harmoni-cally while protecting the rights ofthird persons and public interest.There is such a widespread opinionthat requirement of prior notifica-tion is not related with fortuitousand unplanned demonstrations.Article 49 of the Constitution andrelevant legislation provides guar-antee for conduct of such assem-blies.
As is seen from most of theanswers of the Executive Power ofCity, prohibition of demonstrationsand other types of assemblies areconnected with necessity to protectpublic order and safety. For exam-ple, Executive Power of Baku Cityin its letter of response sent to Mr.Gulaga Aslanli and Ms. ArzuSamadova assumes that street-demonstration will lead to restric-tion of the traffic and disruption ofpublic order. However, it is the dutyand authority of the executivepower of the city to protect safetyand public order, facilitate normaloperation of the traffic and infra-structure during conduct of suchevents.
Those applied, question this issueespecially due to the expressiondescribing "danger to public orderor violation of law" as making thepreliminary terms for interventionof state structures indefinite. Theynote that the terms turn out to bemuch more difficult when the bodiesof lower level and police, authorizedto make decision on intervention.
However, the abovementionednotions are clearly explained andcome from the essence of the legisla-tion on law-enforcement bodies.According to this law, idea of "pub-lic safety" covers the protection ofcertain legal interests including life,health, freedom, dignity, propertyand human welfare as well as rule oflaw and state bodies. In this regard,danger to public order is assumed incase if these interests protected bylaw really provide threat to welfare.
37
The idea of "public order" in currentperiod should be understood as theset of a number of unwritten ruleswhich should be observed in accor-dance with social and ethnic norms.This is the important condition forexistence of people within certainterritory and group. Such an expla-nation of the notions does not guar-antee exercising of the law in fullconformity with the Constitution.Two kinds of restrictions defined bythe law are important for the evalu-ation from the Constitutional pointof view. Prohibition or suspensionof the demonstrations is allowedonly for protection of legal interests.Existence of just a danger to publicorder is not enough for prohibitionof meetings and demonstrations.First of all, prohibition of demon-strations and meetings is admissiblein case of ultima ratio, realization ofrelatively soft measures is not possi-ble. That is everything should begrounded based on the principle ofproportionality. It means that thereare restrictions not only related withselection of methods by the bodiesof power for intervention but alsowith the decision adopted by theauthorities. Like FundamentalHuman rights, the right for freedomof assembly can be receded intobackground only in case if interestsdefined exactly by taking intoaccount the importance to observeall rights and indicated that restric-tion of the right for freedom ofassembly is important to observeother rights having the same value.Restriction of this freedom just
related with one fact of legal inter-ests is inadmissible. Generally, thethird party will also have to standthe concerns that might arise fromexercising of the right for freedomof assembly, because it will not bepossible to avoid such inconven-ience without imposing restrictionson right for freedom of assembly.Imposing restrictions is incompati-ble with the objectives of the assem-blies. At the same time it is not rightto prohibit conduct of an assemblyby providing grounds that it wouldprevent the movement of traffic. Asa rule the conditions that the streetsmight be used both by the demon-strators and traffic can be providedbeforehand. The Executive Powerof Baku City in its response onNovember 24, 2006 year to"Musavat" party's application,states that planned street-processionmight led to disruption of publicsafety.
Intervention of the authorities toconduct of an assembly is alsorestricted within certain conditions.Prohibition and dispersal of anassembly is allowed only in case ifthere is "direct danger" to publicorder and rule of law.
Intervention is possible only byobserving this condition and exis-tence of "direct danger" stipulatesmore severe conditions. It is obviousthat the level of probability willalways be questioned and the condi-tions providing grounds for dangershould be considered in details. TheLaw stipulates that opinions aboutexistence of such a danger should be
38
based on facts, existing situationand other details: suspicions andsuppositions are not sufficient only.Considering the fundamentalimportance of the right for freedomof assembly, the bodies of executivepower can not determine extremelylower standards for identifyingexpected danger while prohibitingassemblies. This is especially impor-tant when there is a threat for dis-persal of a meeting as a result ofwrong assessment of the situation.In any given situation the decisionabout observing the standardsshould be adopted at special courtsessions. Applying these standardsis inadmissible without taking intoaccount concrete cases, from thepoint of the parts of Constitution.However, the situation can be dif-ferent in regards to demonstrationshaving multiple participants, towhat extend the organizers are pre-pared for cooperation during thepreparation period as well asdepending on the danger for creat-ing disorder by third persons orminority.
Article 5 of the Law on"Freedom of Assembly" corre-sponds to the Constitution ofRepublic of Azerbaijan as a whole ifits interpretation and exercisingserves only for protection of publicinterests, and prohibition and sus-pension of the assemblies are doneonly for protection of importantpublic interests and in accordancewith the principle of proportionali-ty, other legal interests are indeedunder threat and this is proved by
clear facts. The Constitution guar-antees "peaceful and unarmed gath-erings". The law requirement for thegathering to be peaceful is quiteclear along with Constitution andcomes from the legal nature of theassemblies and understood as a toolinfluencing conduct of debates andformation of political will. It is notpossible to draw distinct linebetween acceptable results andbehaviors which can not be charac-terized as peaceful while act of vio-lence. In any case if a participantacts violently against other personsand objects then his or her behaviorcan not be characterized as peaceful.The law, which empowers the stateto use force to prevent violation (aswell as for the interest of sensitiveminorities) should consider seriousmeasures. The right for freedom ofassembly will remain as a means totake active part in political processonly within these terms and servedemocratic interests. We need totake into account that taking meas-ures as a reaction against violationleads to restriction of freedoms. Thedemonstrators are likely to behavepeacefully, because they will benefitfrom it. In case of confrontation thestate will eventually subdue themand they will not achieve own goals.Prohibition of demonstrations withmultiple participants does not con-tradict with the parts of theConstitution in case if the partici-pants or their supporters are willingto act violently or there is seriousand exact information about theirsupporting such kind of acts or
39
there are grounds proving theirdesire to do so. Article 49 of theConstitution of Republic ofAzerbaijan does not provide anyguarantee in regard with suchdemonstrations, because this gath-ering is not considered as peacefuland its prohibition or suspensionwill not be considered as the viola-tion of the main law. If organizersand their supporters conduct peace-ful gathering but the third persons(counter-demonstrators or groupsattempting to disrupt demonstra-tion) give way to aggressive acts, inthis case everything is quite clearfrom the legal point of view. In thesecases the bodies of power shouldtake measures against disruptersand take steps to prevent any actsagainst the gathering and creationof any emergency situation, as con-sidered by relevant scientificsources. If there is not any danger ofmass disorder then there is no needto assume that the demonstrationwill certainly turn into violation ofpublic order, popular uprising orthe participants will make efforts tosuch developments or welcome suchacts. In this case the Constitutionalguarantee to the right for freedomof assembly will remain effective forthe peaceful participants of thedemonstration, even if separate par-ticipants of the demonstration orminority act aggressively. The guar-antees stipulated by the parts of theConstitution should be taken intoconsideration while exercising theparts which consider restriction ofbasic rights and freedoms. In
regards with these guarantees andpursuant to the Law on "Freedomof Assembly" it is possible for thebodies of power to impose legalrestrictions which does not excludetaking measures directed to protectpublic order. These measures can beapplied to the demonstration as awhole, even up to its restriction.However, it would be proper to takean approach to suspend a demon-stration after start - this measurewould not deprive the peacefuldemonstrators from realization oftheir basic rights and allow theorganizers to isolate aggressive par-ticipants. Prior prohibition of agathering because of possible dan-ger that may come from the aggres-sive participants is allowed only oncondition of observing a number ofrequirements and exercising of theparts of the Law of "Freedom ofAssembly" in accordance with theConstitution. This is very importantto observe the parts of the Law on"Freedom of Assembly" and therequirements of the procedural lawcoming from these parts. It isimportant that possibility of riskshould be high for making a deci-sion on prohibition and at the sametime all the resources must be mobi-lized to allow the peaceful demon-strators to realize their basic rights.Prohibition of a demonstrationcompletely, means that joint coop-eration with the peaceful demon-strators to prevent dangerous situa-tions gave no results or this cooper-ation did not take place because ofthe demonstrators' fault. If the pos-
40
sibility of prohibiting mass demon-strations where peaceful partici-pants prevail is considered by takinginto account concrete cases then as arule the participants should be noti-fied about the prohibition ahead oftime.
2. Bodies of Executive PowerRespond Indefinitely As "Not
Considered Expedient"
By analyzing the second group ofanswers we can make conclusionthat the bodies of power does notconsider expedient the realization ofpeople's constitutional freedomssuch as right of thought, independ-ent thinking, right of speech andright for freedom of assemblythrough grounding their responsesas "not considered expedient". Suchan interpretation by the bodies ofpower contradicts with theConstitution which stipulates rightfor freedom of assembly and inter-national norms. Such responses toapplications meaning restriction ofthe right for freedom of assemblyare unlawful. Executive Power ofBaku City grounded its responsedated November 28, 2005 to"Musavat" party's application forconduct of picket that "ExecutivePower of Baku City does not consid-er expedient conduct of picket onNovember 29, 2005" since the irregu-larities taken place in the electionsand the results of the parliamentaryelections were presented to theConstitutional Court for approval.
Citizens' Labour Rights
Protection League on May 23, 2007year submitted notification letter tothe Executive Power applying forconduct of a picket at "Sabir" parklocated in "Istiqlaliyyat" street aim-ing to protect right of speech, towhich the Executive Power respond-ed on May 30, 2007 stating that"...we think it would be beneficial notto convene an event but to expressyour position in a civilized wayregarding this issue". The executivepower did not consider conduct ofthe picket expedient since it consid-ered peaceful gathering as uncivi-lized event.
"Everybody" determines expedi-ency of realization of his or her rightfor freedom of assembly from thepoint of right of thought andspeech. Everybody or an organiza-tion determines the right for free-dom of assembly according to theirviews by using the right of speechand thought. Nobody or an agencyhas the right to express an opinionabout the essence of would be con-ducted event.
The freedom of speech is consid-ered as one of the main basis ofdemocratic states being the essentialand inseparable element of demo-cratic society and the importantmeans for direct expression of per-sonality. The right of speech guar-antees existence of different ideas,thinking and discussions beingimportant for existence of a demo-cratic society. We can also refer theexpressed views to the right for free-dom of assembly if we consider it asthe expression of collective thought.
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Here there is no need to assume thatthe fact that factor of discussiontypical for the right of speech doesnot play the primary role in thegatherings. A person also expresseshis or her own position openlythrough participating at demonstra-tions and other mass events withoutusing mass media.
Demonstration is also an elementof a group of people's expressingtheir opinions without using massmedia physically. In the course ofsuch events the participants on theone hand share their belief with oth-ers, on other hand they in fact pro-tect own positions and express opin-ions. Executive Power of Baku Cityresponded to "Musavat" Party'sapplication for conduct of meetingto realize the right of speech andright for freedom of assembly onSeptember 21, 2006 year, statingthat conduct of the meeting was notconsidered expedient, because,"President Ilham Aliyev is doing hisbest to improve social condition ofpeople, oil income increases year byyear, the government strugglesagainst corruption, anti-corruptionstructures are established underprocurator's office..." Using the rightof speech and right for freedom ofassembly for making populistspeeches and the danger of using itas a method for emotional pressuredoes not serve to be the main factorto identify the distinctive features inthe sphere of the right for freedomof assembly.
3. Bodies of Executive PowerRoughly Violate the Principle of
Proportionality and ProposeUnsuitable Places to Applicants
Most of the applicants are notable to conduct authorized meetingsin the places and times provided bythe bodies of executive power. Thereason is that the places proposedby the bodies of executive powerwould make conduct of the meetingineffective. For example, the letterof response sent by the ExecutivePower of Baku City datingNovember 06, 2005 in reply toapplication to conduct street-pro-cession states, "It is not possible toconduct street-procession onNovember 8th and November 10ththrough the route of "20th JanuaryMetro Station - State Film Fund"and on November 10th you can con-duct street-procession only at thetime set by the Executive Power ofBaku city".
Conduct of a meeting is a tool forevery participant to convey his orher opinion regarding a problem tothe public and conduct of the meet-ings at the places and in a form pro-posed by the bodies of executivepower makes it useless. Limiting theconduct of the gatherings afar fromthe places where most of the citypopulation gather, reduces theessence of the right of speech andthought to zero.
For instance, in reply to theapplication submitted on February15, 2007 year for conduct of meet-
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ing, the Executive Power of BakuCity responded that conduct of themeeting would not be possible inany of the indicated places. At thesame time the Executive Power ofBaku City enumerated a number ofstate organizations stating that con-duct of the meetings in front ofthose facilities were not allowed andthe list of the places allowed for con-duct of meetings and gatherings waspublished on October 29, 2006 yearissue of "Azerbaijan" newspaper.Almost all of these places coverinactive areas of the city and it is notpossible to influence public opinionhere. It is clear that big-sizedunions, wealthy sponsors and massmedia have great capacity to influ-ence the public and ordinary citizensseem weak in comparison with thesegroups. The ordinary citizens whodo not have direct access to massmedia may have the only waybesides joining parties or publicunions: influence the public opinioncollectively through conducting ademonstration by using the right forfreedom of assembly. The govern-ment's duty to provide condition forrealization of this comes from theprimary political decision as definedby the Constitution. This duty lieson both assisting in conduct ofmeetings and demonstrations andpreventing any possible interventionfrom a third party to realization ofthe right for freedom of assembly.The bodies of power should takeinto consideration the rights stipu-lated by the parts of theConstitution while adopting any
restrictive law and decisions. Thebodies of power may restrict theright for freedom of assembly onlyfor the sake of protecting otherinterests having the same value andin this case the principle of propor-tionality must be certainly takeninto account. Realization of theright for freedom of assembly with-out obstacles does not only affectunderstanding about political weak-ness and the dangerous tendenciesthat might cause negative attitudeagainst the state. Ultimately, theright for freedom of assembly servesthe interests of the whole society,because diversity and variety of theelements affecting formation ofpolitical thinking will result indynamic development in all direc-tions.
Journalist Elmar Huseynov wasmurdered in 2005 year in Baku. Themajority in the society believed thatthe murder was committed on polit-ical motive. Azerbaijan DemocraticPart (ADP) and Azerbaijan PopularFront Party applied to ExecutivePower of Baku City for conduct ofstreet-procession from 16:00 till18:00 on April 10th, aiming to con-vey opinions to the public concern-ing the murder of the prominentjournalist. In reply to the applica-tion, the Executive Power of BakuCity responds that "this issue shouldbe solved with the state and bodies ofpower through dialogue and there isno need for conduct of street-proces-sion". In this case the principle ofproportionality was violated,because the blow on freedom of
speech is of public importance andexpression of thoughts about thisissue is very important in democrat-ic and lawful society.
The right for freedom of assem-bly becomes the main and invariableelements of the representation sys-tem where possibilities of conduct-ing referendum is weak and in theexistence of parliament type democ-racy. Here (even in regards to thedecisions being of great importancefor the majority as well as the deci-sions which are difficult to reverseafter change of power) majorityprinciple remains in force. On theother hand the potential of the vot-ers to influence the process is con-siderably restricted during the peri-od in-between the elections. Thecases when the bodies of power donot confess violation of rights, donot see or acknowledge the mistakesor attempt to connect the violationof rights with protection of otherinterests make it much more impor-tant to conduct protest actions inthe places of public importance. Theright for freedom of assembly playsthe role of stabilizing factor for thepowers of representation system.The right for freedom of assemblyallows dissatisfied people to expresstheir protest openly. The right forfreedom of assembly serves likepolitical indicators pointing the dis-turbances related with the system ofsociety management, stresses outthe potential for disorders anddefects in the integration of differ-ent layers of the society and herebyassists to change the official political
course. The parts concerning theright for freedom of assembly aredirected for guaranteeing this right.These parts define the forms of con-ducting meetings and demonstra-tions and organizers can select anyform of these events which is notprohibited by the law. The law onlydefines organizational restrictionsfor conduct of meetings and demon-strations. Making demands by theparticipants and organizers of massevent which are incompatible withformation of political thinking andwill is inadmissible. If the measurestaken by the bodies of power gobeyond the norms of restrictingbasic rights and freedoms, then thisis very likely to create groundlesshindrances for conduct of thedemonstrations through creatingartificial obstacles and prolongingthe initial procedures. Any measuretaken by the bodies of power aimingto determine the expediency anddemand for exercising the right forfreedom of assembly, identifyingplace for the meetings as well as themeasures that result in creatingextreme control and making theconduct of a meeting useless shallcontradict with the Constitution ofRepublic of Azerbaijan.
Fortuitous Meetings
The issue related with the fortu-itous meetings should also befocused on. Such an assessment ofthe fortuitous meetings lies on thefact that the parts of the Law on
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"Freedom of Assembly" recedes intothe background in necessary casesfrom the point of realization ofthese basic rights and freedoms.Conduct of meetings and demon-strations are allowed not becausethey are written in the law butbecause the citizens have right fordoing so. The Law on "Freedom ofAssembly" considers certain restric-tions only in case of need. That'swhy it is considered that violation ofthe rules on application does notmean immediate prohibition or sus-pension of meetings and demonstra-tions. It is certain that an organiza-tion or a leader organizing a meet-ing without prior notification vio-lates the Law on "Freedom ofAssembly". Article 7 of the Law on"Freedom of Assembly" states thatthe authorized bodies may suspendmeetings and demonstrations con-ducted in the open air.
Restriction on the right for free-dom of assembly may be imposedonly in conformity with law and forprotection of interests necessary in ademocratic society.
The bodies of executive powerthink that they can use the priorprohibition of the meetings if thisprohibition is considered softer thanthe prohibition stipulated by thelaw, like sanctions. However the lawdoes not require the authorities toprohibit or suspend such meetingsall the time. Considering the impor-tance of the right for freedom ofassembly, the law empowers thebodies of power with authorities tointervene only in case if there are
serious grounds for doing that andwithin their duties.
The Law on "Freedom ofAssembly" also considers the possi-bility of imposing restrictions onfortuitous meetings and demonstra-tions whose objectives and achieve-ment can not be realized throughobserving the parts of the law stipu-lating prohibition. Despite of thefact that such kind of meetings donot correspond with Article 49 ofthe Constitution they are consideredas lawful and the state can takemeasures in any time for restrictionof this right.
Thus, the requirement of priornotification can not be applied allthe time and failure to observe thisrequirement does not mean immedi-ate prohibition and it is not possibleto state that this requirement - sub-stantiated with necessity of observ-ing important public interests isincompatible. The meetings withmultiple participants and fortuitousmeetings can be assessed separately.The existence and features of excep-tional rules should be discussed inother context from the point of dan-ger to public order.
We conducted non-structured interviewswith 20 people who
participated in the gatherings"unauthorized" or suspended by thebodies of power at different peri-ods. They applied to our organiza-tion based on the announcementsplaced on press and expressed will-ingness to take part in the inter-views.
The following indexes have beendetermined in regards with the peo-ple attracted to non-structuredinterviews:
Gender and age category(child, juvenile, middle age, elder)
Activity (political, social,humanitarian, religious and etc.)
Membership to a party orpublic organizations.
Mainly the following questionswere asked during the interviews:
In which gathering you were thevictim of violation?
Under which conditions in par-
ticular and what kind of violationyou were subjected to?
Please describe the situation. What was your status of partici-
pation in the gathering? (organizer, participant, acciden-
tal participant, passer-by during agathering).
Have you been brought toresponsibility for participating atthe gathering?
(detention, administrative penal-ty, administrative arrest, criminalliability).
7 of interviewed persons werewomen and 13 were men. Out ofwomen, 1 person was elder, 4 ofmedium ages and 2 young. 4 of menwere young and juvenile, 3 eldersand 6 of medium ages. 4 out of menand 2 of women who were subject-ed to physical violation during anevent were arrested by administra-tive order (from 3 up to 15 days).Among the people attracted to theinterviews 3 were non-partisans, 16
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MONITORING REPORT
NON-STRUCTURED INTERVIEWS WITH THE PERSONS SUBJECT TO PHYSICAL VIOLATION WHILE DISPERSAL OF MASS EVENTS BY THE BODIES OF POWER
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members of political parties and 1activist of a youth organization.
During the non-structured inter-views 11 people out of those suf-fered of physical violation notedthat were subjected to violationwhile standing at an event, 3 whileleaving the gathering as soon aspolice start dispersing the action, 2people while assisting those whogot heavy injuries and 4 for holdingplacard or banners.
One of the interviewees who suf-fered of violation notes: "I wasbeaten from behind with club whilestanding and knocked down. I gotinjuries on my shoulders and neck.I faced abuse and physical pressure.I received treatment at home".Most of the interviewees note thatthe aim of the police was not onlyto disperse the gathering in whichthey participated. The police alsodemonstrated special cruelty inregards to the participants.
Another participant of a gather-ing notes the following: "3 people incivilian cloths knocked me downand started to kick. They dealtblow on my head, face, shoulder,chest, belly and in various parts ofbody while I attempted to stand up.As a result, I got injuries on myshoulder-blade and back.
The group of people attemptingto organize a picket to protest evic-tion of "Azadlig" newspaper,"Turan" Information Agency andPopular Front Party of Azerbaijan
from their office were caught nearthe "Baku Soveti" metro stationand subjected to tough physicalviolation. A party activist who par-ticipated in that event tells in herinterview: "The policemen attackedme as soon as I left the metro. Theydragged me in 30 meters and threwinto the bus after dealing blows onmy head and back. I was broughtto the place secured for administra-tive arrest. I was not provided withany medical aid. Later I learnedthat was sentenced to 5 days ofadministrative arrest by a court".
All of the interviewees, except 2people said attended the gatheringsas participants and 2 people saidthey participated as organizers.
Most of the interviewees notedthat police and mobile forces aswell as civilians had demonstratedspecial cruelty while dispersal ofunauthorized assemblies. Theydeliver blows with club on head andother parts of body which can beharmed severely, kick and useoffensive language. One of theinterviewees noted that he wasdealt blows with metal rod andcould not recover despite of receiv-ing treatment for long period. Ingeneral, several of the intervieweesalso mentioned that non-standardtools were used while dispersal ofthe assemblies.
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We observed two assem-blies organized in Bakucity. One of them was
procession-meeting and anotherpicket. The event organized by""Musavat"" party on March 18,2007 year comprised of processionwhich started from "Hazi Aslanov"metro station, about 14 kilometersaway from the city center up to theUkraine Square passing throughMahammad Hadi street and anassembly conducted at the square.The event was authorized by theExecutive Power of the City.
The other event was organized by"Azadlig", "Yeni Musavat", "BizimYol", "Gundalik Azerbaijan","Realniy Azerbaijan" newspapers,"Qanun" journal and "Turan"Information Agency on May 15,2007 year. The organizers of thepicket submitted written notificationto the executive power of the cityincluding time, place and number ofparticipants by fully meeting therequirements of the Law on"Freedom of Assembly". However,the executive power of the city pro-hibited conduct of the picket withoutproviding any serious grounds and
presented a letter to the organizersabout its decision 1 day ahead of theevent. Meanwhile the organizersinsisted on conduct of the assemblyand attempted to conduct the picketat assigned time.
We have determined the followingas a result of the observations of theprocession-meeting organized by"Musavat" Party and authorized bythe bodies of power.
Behavior of the Forces EnsuringPublic Safety
1. Both forces in police uniformand civilians were deployed to thearea secured for conduct of the pro-cession-meeting. The vehicles of thetraffic police service were also mak-ing maneuvers in the area. The mem-bers of the observation group havedetected the cases when the trafficpolice stopped vehicles heading tothe meeting, in the areas close to thevenue and sent back. At the sametime there were cases observed whenthe police prevented the participantsentering the area of the meeting.According to the organizers, the bod-ies of power had instructed the policeto use artificial obstacles to reduce
MONITORING REPORT
OBSERVATION OF BEHAVIOR OFPARTICIPANTS, ORGANIZERS ANDTHE FORCES ENSURING PUBLICSAFETY DURING THE ASSEMBLIES
49
the number of the participants tominimum.
2. The number of the police forcesdeployed to the area was apparentlymuch more despite of the fact thatthere was no any suspicion that themeeting would not be of peacefulcharacter. The police lined up closelyalong the street where the processionwas conducted. The area was closelyencircled by the police during theconduct of the meeting. The partici-pants were not allowed to go beyondthe limits of the police cordon duringthe meeting. There were only specialcorridors for those willing to leavethe assembly. Unknown cameracrews were operating in the area andcivilians were instructing thosegroups.
Behavior of Participants andOrganizers
The number of the participantsamounted to 1,000-1,200 people onthe eve of start of the procession-meeting.
The participants did not demon-strate any special aggression to theinstructions, sometimes being unnec-essary of the forces ensuring publicsafety. At the same time, some par-ticipants expressed their protestagainst unnecessary interventions bythe police to the procession-meeting.The procession started at theassigned time and the participantsrallied to the determined area to startthe meeting. There was neither anyserious dispute nor other incidentsbetween the organizers and the bod-ies of police. The meeting finished atthe set time and the participants leftthe square peacefully.
The above-mentioned anothergathering - picket was organized aim-ing to protest against the pressure bythe bodies of power on freedom ofspeech. The bodies of power notifiedthat would not allow conduct of thepicket.
Behavior of Participants andOrganizers
The participants started to gatherin the assigned area 15-20 minutesbefore the time set to conduct thepicket. The participants were assem-bling in the area of the gathering- thepark named after Sabir and around.The number of the participants was35-40 people at the time set for thepicket - 2:00 PM. The participantsand organizers of the picket gatheredin small groups and held discussions.There was no any sign of aggressive-ness in the behavior of the partici-pants and organizers, though theyknew that conduct of the picketwould not be allowed.
Behavior of Police Police detachments gathered in
the area. The number of the policewas almost equal to the number ofthe participants. The police officersattacked at the time set for conductof the picket, confiscated the slogansand pictures and tore off. Afterwardsthe participants were removed fromthe area of the picket rudely whilethere was no any resistance and insome cases were offended. Theprocess finished in 5-10 minutes andnobody was detained by the policesince there was no any resistance bythe participants or organizers.
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We have analyzed theleading three newspa-pers published in the
country starting from the periodstarting from April 01, 2007through June 30, 2007 year. Duringthe period we analyzed all of thearticles on problems related withexercising the right for freedom ofassembly, debates and proposalsissued by "Azadlig", "525thNewspaper" and Russian language"Zerkalo" newspapers. Please findthe summary of all the publishedmaterials and expert opinion orbrief comments in the page of notes.
In general, the leading press hasfocused on this issue only whenthere was an event related with thefreedom of peaceful gathering or onthe eve of an event, despite of thefact that ensuring the freedom ofassembly remains to be the seriousproblem in the country. Sometimesthere were cases when there was noany article on this issue published bythese newspapers within a week,despite of being daily newspapers.We can conclude that the press doesnot keep the issue in the center ofattention all the time.
Despite of the fact that these
newspapers were published 195times in total during the threemonths period, they published arti-cles on freedom of assembly only in99 issues.
The articles covered 4 groups ofissues: Preparation to mass events,writings about the realized actions(53 article); Prohibition of massevents by the relevant bodies ofexecutive power or writings aboutpostponement of the actions (17article); Writings about the partici-pants or organizers of the unautho-rized mass events who were subject-ed to police violation, detained orsentenced to administrative penalty(12 articles) and; Discussion of thelegislation related with freedom ofassembly, writings about the pro-posals made by the international orlocal organizations concerningimprovement of the legislation andother writings (17 article).
Although the articles issued bythe periodical press did not serve asthe main source for the results of themonitoring, analysis of these mate-rials adds additional arguments tothe accuracy of conclusions drawnthrough application of other moni-toring tools.
MONITORING REPORT
ANALYSIS OF PRESS
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That is the articles published bythe press also indicate that thenorms required for ensuring andregulating the freedom of assemblyin the country correspond neither tothe Constitution of Republic ofAzerbaijan nor the internationalstandards to which Republic ofAzerbaijan is a party and thesenorms do not ensure the freedom ofassembly, instead serve to its restric-tion. Both OSCE and VeniceCommission of Council of Europemake efforts to facilitate improve-ment of the legislation. April 12,2007 issue of "Azadlig" newspaperinforms, "The group of experts of theVenice Commission of the Council ofEurope is visiting Azerbaijan. Theexperts of the Venice Commissionstarted discussions with the represen-tatives of the government concerning
the changes to be made to theElection Code of Azerbaijan andregarding the Law on Freedom ofAssembly".
"Zerkalo" and "Azadlig" newspa-pers published articles on their April17, 2007 issues about conduct of thepicket by "Dalga" youth movementon April 16, 2007 year.
The young people attempted to conduct a picket in front of theMinistry of Internal Affairs aimingto protest deportation of Iraniancitizen Hadi Musavi who ran awayto Azerbaijan to escape from politi-cal persecution. However, the policedispersed the action by using force,took 8 members of the movement topolice station and released afterkeeping 3 hours.
As is seen, the bodies of power
Statistical indicators related with the analysis of the writings on exer-cising the freedom of assembly issued by the periodical press during the peri-od from April 01, 2007 to June 30, 2007.
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even prevent conduct of small-sizedpickets. The monitoring group alsoregistered similar behaviors throughapplication of other monitoringtools as well as observation of massevents.
The attempts by journalistorganizations and newspaper edi-tors to conduct picket or meetingaiming to protest against the arrestof Eynulla Fatullayev, editor inchief of "Gundalik Azerbaijan" and"Realniy Azerbaijan" newspapershave been prevented several times.The analyzed newspapers gave mul-tiple writings about the preparation
to these actions, attempts to con-duct them and behavior of policeforces. The status of ensuring thefreedom of assembly in the countryturns out to be plainly visible whileanalyzing those writings.
Thus, the general analysis of thewritings issued by the periodicalpress allows us to conclude that thenational legislation to ensure thisfreedom is problematic enough andits application creates multiplesshortcomings. As a result, the free-dom of assembly being one of thebasic freedoms is seriously violatedin the country.
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Norms Ensuring Freedom ofAssembly in the Country
Pursuant to Article 49 of theConstitution of Republic ofAzerbaijan "every person shall havethe right to freely gather with others".Article 21 of the InternationalCovenant on Civil and PoliticalRights and Article 11 of theConvention for the Protection ofHuman Rights and FundamentalFreedoms to which Azerbaijan is aparty also guarantees the freedom ofpeaceful assembly.
According to Part VI of Article71 of the Constitution of Republicof Azerbaijan, "Human rights andfreedoms shall be in force immediate-ly in the territory of the Republic ofAzerbaijan".
"…exercising and restriction …"of the freedom of peaceful assemblystipulated by Article 49 of theConstitution is defined by the Law on"Freedom of Assembly" of Republicof Azerbaijan which was adopted on
November 13, 1998 and changesand amendments were made to theLaw on March 4, 2005 year.
Part III of Article 149 of theConstitution of Republic ofAzerbaijan states that "Laws shouldnot contradict the Constitution".Also according to Article 151 of theConstitution "When disputes, havearisen between normative-legal Actsincluded in Legislation system of theRepublic of Azerbaijan (exceptingthe Constitution of the Republic ofAzerbaijan and the Acts, passed viareferendum) and InternationalTreaties, of which the Republic ofAzerbaijan is a party, the latter onesshall be applied".
Thus the legal grounds necessaryfor realization of the right for free-dom of assembly in the country areprovided by the Constitution andInternational Norms.
As mentioned, this freedom stip-ulated both by the Constitution andInternational Norms can not berestricted by any other norms.
MONITORING REPORT
FINAL MONITORING RESULTS
We have developed separate reports based on each monitoring toolapplied within the monitoring. Each report reflects conclusions on the statusof ensuring the freedom of assembly in the country. Below are the general ref-erences on the results achieved through the tools applied within the monitor-ing.
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Restrictions can be imposed only inconformity with law and in cases asnecessary in a democratic society.
However the analysis of the Lawon "Freedom of Assembly" andother statutory acts related withexercising and restriction of thefreedom of assembly indicates thatserious obstacles have been createdon the level of legislation beforerealization of this fundamentalfreedom. Practice of applying thesenorms causes serious problems toensure the right for freedom ofassembly.
The main conclusions drawnthrough analysis of the norms areas following:
The Law on "Freedom ofAssembly" of the Republic ofAzerbaijan (was adopted onNovember 13 of 1998 and changesand amendments were made onMarch 4 of 2005 year) and theorders adopted by relevant bodiesof executive power in regards withexercising of this Law, restricts therights for freedom of assembly asprescribed by the Article 49 of theConstitution of Republic ofAzerbaijan, Article 21 of theInternational Covenant on Civiland Political Rights and the Article11 of the European Convention forthe Protection of Human Rightsand Fundamental Freedoms towhich the Republic of Azerbaijan isa party.
The Law does not put seri-ous requirements before the bodies,which adopt decisions on restric-
tion, suspension and prohibition ofan assembly to indicate substantiat-ed reasons for doing that. The rele-vant bodies of executive power donot provide any grounds whileadopting decisions on restricting,suspending and prohibiting of con-duct of an assembly (not permittingor authorizing) and in this case theLaw does not place any burden ofproof or any serious responsibilityon them. In essence, the Law doesnot support presumption in favorof holding assemblies but its prohi-bition.
The restrictions and prohi-bitions are not prescribed as ameasure of last resort but as mainorder by the Law.
Most of the parts of theLaw related with restriction of free-dom of assembly as well as suspen-sion, dispersal and prohibition ofassemblies exceed the limit of "asprescribed by law and are necessaryin a democratic society" reflected inthe International Standards.
In many cases, the parts relatedwith exercising restrictions and pro-hibitions violated the "principle ofproportionality".
Most of the parts of theLaw are not concrete and areabstract. This creates conditions toarbitrary acts by the authoritiesand abuse of the parts of the Law.
The notion of fortuitousassembly indicated in the Part IV ofArticle 5 of the Law is not inter-preted in detail. The provisions ofthe Law allow to classify any fortu-
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itous assembly or a gathering tak-ing place spontaneously as anunlawful assembly. Such kind ofgatherings which took place inpractice so far, have been dispersedby the state structures violently andparticipants and organizers werecalled to responsibility.
The requirements for thewritten notification for conduct ofan assembly as stipulated by Article5 of the Law are excessive. Most ofthe data to be included to the letterof notification provide grounds forthe bodies of power to regulate theassembly.
III Point of the Part III ofArticle 8 of the Law contradicts theConstitution of Republic ofAzerbaijan and InternationalNorms to which the Republic ofAzerbaijan is a party. The principlestated by this Point allows the bod-ies of power prohibit assemblieswithout any grounds. Prohibitionof an assembly "during the period ofpreparation for international eventsof state importance determined bythe decision of the relevant body ofexecutive power and on days of hold-ing them on the territory of citiesand regions where they are conduct-ed" as stipulated by this Point vio-lates the principle of proportionali-ty and at the same time contradictsa sound logic. Restriction of con-duct of an assembly (even a picket)by legislation in a place 30-40 andeven more kilometers away fromthe area where "international eventof state importance" is held in capi-
tal Baku city with the area of sever-al thousands square kilometers isabsurd.
The restrictions on places ofconduct of assemblies by the PartIII of Article 9 of the Law restrictthe freedom of assembly withoutany grounds. Prohibition of con-duct of assemblies "in a radius of300 meters around buildings of leg-islative, executive and judicial pow-ers of the Republic of Azerbaijan" asdefined by I Point of Part III, inmany cases reduces the importanceof an assembly to zero. Exercisingof this part does not allow conductof any gathering in the central partof Baku city.
Part VIII of Article 9 of theLaw defines time for conduct of anassembly. According to this part "insummer time an assembly can beheld from 8.00 till 19.00 and in otherperiods of a year from 9.00 till17.00. A time of any assembly mustbe coordinated with the relevantbody of executive power".
As is seen from this part conductof an assembly shall be coordinatedwith the relevant body of executivepower even if an assembly held atthe time as defined by the Law.This part of the Law also indicatesthat the freedom of assembly inRepublic of Azerbaijan may beexercised not by notifying as statedby the Constitution, but onlythrough coordination, that is get-ting permission. Imposing restric-tions on time of conducting assem-
blies also violates the freedom ofpeaceful assembly. This Law pro-hibits conduct of assemblies of per-manent character. That is anypeaceful gathering is considered asunlawful beyond the indicated timeframe. There are cases in thenational practice when peacefulmeetings were dispersed ruthlesslyand by using special violationbecause of several minutes pass ofan indicated time.
Article 10 of the Law statesthat decision of the relevant bodyof executive power related withconduct of an assembly must bepresented to the organizers of theassembly in written form at leasttwo days prior to the intended dateof the assembly. According toArticle 10 of the Law "all the deci-sions provided for in Article 7-9 ofthe present Law can be appealed in arelevant court. A complaint shall beconsidered by court within 3 days".This creates grave shortcomings inpractice. That is the relevant bodiesof executive power submit theirdecisions related with letters ofnotification to the organizers twodays prior to the intended date ofthe assembly at best. In this caseappeal to a court by the organizersturns out to be ineffective. Even ifthe court considers the complaintwithin the period as defined by thelegislation, it takes place after theintended date of the assembly.Thus the "right to an effective rem-edy" is violated.
Part VIII of Article 12 ofthe Law states that "The govern-ment shall have the responsibility forensuring the security of an assembly.However, with an aim to ensure thesecurity of an assembly that goesbeyond security limits ensured by thegovernment, organizers can requestto attract additional police forcesunder the condition of paying for it".
This part of the Law contradictsArticle 11 of the EuropeanConvention on Human Rights aswell as the Constitution of theRepublic of Azerbaijan. Ensuringthe security of the assembly is thepositive responsibility of the gov-ernment and from this point thegovernment must fulfill its duty inall cases. The expression of "securi-ty limits" is abstract.
There are neither concrete indi-cators nor units of measurement todetermine the security limit to beensured and it can not be. Thedegree of expected danger shouldbe assessed by the governmentahead of time and adequate securi-ty measures must be taken.
Part V of Article 13 of theLaw indicates that "a participant ofa lawful assembly can not be laterbrought to responsibility for partici-pation in such an assembly. Only theparticipants of a lawful assemblywho violate the law can be brought toresponsibility".
According to both the parts andthe observed defective practice wecan tell that all of the assemblieswhich take place without permis-
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sion of relevant body of executivepower are considered as unlawfulby the authorities and there aremany cases when even participantsof peaceful assemblies were calledto legal liability. In any case if aparticipant of an assembly does notviolate the law, it is inadmissible tocall him or her to responsibility.
III Point of Part I of Article14 of the Law defines the authori-ties of police, including the right to"suspend when necessary an assem-bly if holding of this assembly doesnot meet the conditions stipulated ina written notification". This partcreates serious problems in prac-tice. There are multiple cases regis-tered when police abused this part.
Conduct of assemblies at"Azadlig" Square, the biggestsquare in capital Baku city is pro-hibited by the decree of thePresident of Republic of Azer-baijan. According to the executiveorder only events of state impor-tance can be held at this square.Prohibition of conduct of assem-blies at this square while gatheringshave been traditionally held hereand which is suitable for conduct ofmass events is the restriction offreedom of assembly. The Presi-dential decree contradicts theConstitution and the relevant In-ternational Norms to whichRepublic of Azerbaijan is a party.
Results of Sociological Interview
One of the tools applied withinthe monitoring was conduct of soci-ological interviews among theactivists of political parties andpublic organizations. The followingconclusions were made throughsummarizing the results of the con-ducted interviews.
As a rule the politicallyactive part of the population partic-ipate in the assemblies. These peo-ple are mainly the activists repre-sented in the opposition parties.
Afterwards even most ofthose who participate in authorizedassemblies face persecution in theirwork place and educational insti-tutes where they study. The entre-preneurs involved in business activ-ities face pressure by the variousstate structures following the event.That is why most of the politicallyinactive people avoid participatingin the assemblies.
Most of the intervieweesincluding organizers of assembliesnote that the authorities create mul-tiple problems during both thepreparation and conduct of theassemblies.
Majority of the respondentswho participated in the assembliesregularly indicate that encounteredpolice violation as well as were sub-jected to both administrative andcriminal penalties.
Majority of the intervieweesthink that to complain to statestructures about the violations and
punishments they faced is useless.The main aim of using force andapplying punishments against thoseattempting to conduct an assemblyis to restrict the right for freedom ofassembly in the country in general,demonstrate to people that attend-ing an assembly is dangerous andthus prevent any mass protestaction against the government.
Application of Norms EnsuringFreedom of Assembly
Serious shortcomings and gapsexisting in the Law on "Freedom ofAssembly" and other relevant stan-dard acts create substantial prob-lems in practice of application ofthese norms.
One of the tools applied withinthe monitoring was the analysis ofthe letters of notification submittedby the political parties, publicunions or groups of persons to rele-vant bodies of executive poweraiming to exercise the freedom ofassembly and the responses by therelevant bodies of executive powerto the organizers related with thesenotifications.
We have analyzed more than 70letters of notification and responsesto them.
In particular, this analysis hasclearly revealed the application ofthe legislation on freedom ofassembly in the country.
We mostly analyzed the lettersof notification submitted to thebodies of executive power of capital
Baku city and responses to thesenotifications.
All of the responses indicatethat the bodies of executive powerdefinitely understand the part ofthe Article 5 of the Law on"Freedom of Assembly" that "…have to notify in advance the rele-vant body of executive power" as if"have to get permission in advancefrom the relevant body of executivepower". In all of the letters ofresponse they either permit conductof an assembly or state that its con-duct is not permitted (in most casesthe expression of "not consideredexpedient" is used).
They abuse the rights toimpose restrictions and prohibi-tions as stipulated by the Law on"Freedom of Assembly" and herebyroughly violate the principle of pro-portionality. In a group of answersthe reasons such as "the traffic isintensive", "located close to dwellinghouses and violates the people's rightto rest", "because this place is densewith movement of people" and etc.are taken as a ground and conductof an assembly is prohibited byreferring to point 6 of part I ofArticle 7 of the Law (protection ofrights and freedoms of others).
In most of the letters ofresponse conduct of an assembly isprohibited by referring to point I ofpart I of Article 7 of the Law (pro-tection of public interests and inter-ests of a national security). Whilegiving such an answer it is by nomeans explained that what kind of
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threats are expected against publicand national security interests incase of conduct of an assembly. Ingeneral, references to the Law toprohibit an assembly as indicated inall of the analyzed letters are defec-tive.
Some of the prohibitionsare imposed by referring to point 3of part III of Article 8 of the Law.According to this point, authorities"during the period of preparationfor international events of stateimportance determined by the deci-sion of the relevant body of execu-tive power and on days of holdingthem on the territory of cities andregions where they are conducted"prohibit conduct of assemblies.Relevant body of power uses thenotion of "international event ofstate importance" in the way itlikes. For example, a conferencetaking place with participation ofrepresentatives of several countriesis classified as international eventof state importance and conduct ofassemblies are prohibited on theeve of this conference and duringthe period it takes place.
In a group of letters ofresponse, prohibition is imposed bynot referring to the Law but byreferring to absurd excuses. Forexample: Response to those plan-ning to protest against the murderof the well-known journalist: "thisissue should be solved with the stateand bodies of power through dia-logue and there is no need for con-duct of street-procession"; response
to the organizers planning to con-vene an assembly to protest againstcorruption: "President Ilham Aliyevis doing his best to improve socialcondition of people, oil incomeincreases year by year, the govern-ment struggles against corruption,anti-corruption structures are beingestablished under procurator's office...that's why there is no need to con-duct an assembly"; response to theapplication for conducting a picketto protest against restriction offreedom of speech: "…we think itwould be beneficial not to convene anevent but to express your position ina civilized way regarding this issue"and etc. There is no any referenceto the Law at all while imposingsuch kind of prohibitions.
According to the practiceevolved in Baku city and othertowns and districts the authorizedbodies do not make any decisionsregarding the notification submit-ted for conduct of an assembly. Theexisting practice is based on thatthe letter of response is presented tothe organizers a day ahead of theassigned assembly with the signa-ture of the head of department foraffairs with public organizationsand political parties operating atthe local bodies of executive power.The police departments of city anddistricts accept the letter by thehead of department to prohibit anassembly as the main documentand prevent conduct of the assem-bly. It is rough violation of theConstitution that one of the depart-
ments of the bodies of executivepower makes decision about assem-blies.
As a rule the assemblies,which are not authorized by theauthorities, are dispersed with spe-cial cruelty even if they are excep-tionally of peaceful character, theorganizers and participants aresubjected to use of physical forcealong with administrative andsometimes criminal penalties. Anyresistance demonstrated while dis-persal of such assemblies is assessedas public disorder. Public disorderin the criminal legislation of thecountry is referred to the categoryof "crimes against public safety"and considers imprisonment of upto 12 years.
As a rule, administrativeand criminal liabilities are broughtagainst the participants and organ-izers of assemblies in the way whichis not adequate.
Non-Structured Interviews
We conducted non-structuredinterviews with the persons subject-ed to use of physical force andbrought to responsibility while dis-persal of mass events by the bodiesof power, as one of the monitoringtools applied within the Project.
The following are the conclu-sions made based on the interviews:
Police forces demonstratespecial cruelty while dispersal of allthe peaceful but "unauthorized"gatherings by the relevant body of
executive power. Police were rela-tively loyal only during some of thegatherings (mainly the picketsorganized by journalists) and satis-fied by removing the participantsfrom the area through forcing outwithout use of force.
The aim of applying specialcruelty and penalties against theparticipants of an assembly is notonly to disperse it but also to makethe organizers and participants suf-fer physically and psychologicallyand avoid conducting such assem-blies further. Such a cruelty alsomeans to fear the passers-by and bythat way restrict the circle of partic-ipants of an assembly.
Non-standard tools areused while dispersal of assembliesand blows are delivered on theparts of body that can underminephysical integrity of a person (head,face, belly, back, jawbone and etc.).
Special instructions aregiven to nearby medical and firstaid stations not to grant medicalaid to the participants injured whiledispersal of big-sized assemblieswith cruelty. A part of the intervie-wees note that they were denied ofmedical aid when turned to hospi-tals and polyclinics.
Medial aid is not providedto the people arrested by adminis-trative order.
Most of those arrested byadministrative order are notbrought before court. First, theyare arrested by administrativeorder and after some time the
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administration of the institution ofconfinement informs them aboutthe term of imprisonment.
Observation of Assemblies
The observations made by themonitoring group during theassemblies proved most of theresults achieved through applica-tion of other tools.
Police and other forces ensuringpublic safety during the assembliesauthorized by the relevant bodies ofexecutive power also carry outplanned measures to prevent theassembly. Such measures includestopping and sending back thebuses carrying participants to anassembly from the regions, confis-cation of some slogans and theirhandles (usually the wooden arti-cles) carried by the participants,illegal interventions to assemblies,abuse of the participants and etc.During observation of such assem-blies conducted with permission ofthe authorities it was evident thatthe main aim of the police was notto ensure safety of the assembly butto make efforts to reduce numberof the participants.
During the assemblies conduct-ed without permission of theauthorities (unauthorized) even ifthe number of the participants is30-35 people and they do not dis-turb anybody, we registered caseswhen the assemblies were dispersedby using immediate force, peaceful
participants subjected to abuse andbeating.
Although not any aggression isobserved in the behavior of theorganizers and participants of theobserved assemblies, the forcesensuring public safety demonstrat-ed aggression and readiness to dis-perse the assembly at any time byusing force.
Observation of the assembliesallows to conclude that the govern-ment is intolerant to any massprotests.
Analysis of Writings on Freedomof Assembly Issued by Press
This tool facilitated evaluationof the events and summarizing theresults achieved through othertools, though was not accepted asthe main means of monitoring.
We analyzed the writings dedi-cated to ensuring the freedom ofassembly, its prevention andimprovement of corresponding leg-islative acts issued by the leadingnational three newspapers withinthree months. The results achievedthrough analysis of the press alsocoincided with the results gotthrough application of other moni-toring tools.
The following are the conclu-sions drawn through analysis ofpress:
The press writes about thefreedom of assembly mainly on theeve of an event or aftermath. These
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writings are mainly dedicated toprohibition of mass events by therelevant bodies of executive poweror their postponement, to partici-pants or organizers of the massevents who were subjected to policeviolation, administrative penaltiesor detained during the unauthorizedevents as well as discussion of legis-lation on freedom of assembly, pro-posals made by the internationaland local organizations concerningimprovement of the legislation andwritings about the freedom ofassembly.
Most of the writings wereabout the police violation againstthe participants and organizers of anassembly or application of adminis-trative penalties against participantsof an assembly. Within the period ofanalysis of the press only some of
the assemblies were agreed with theexecutive power of the city to con-duct outside of the city. All otheractions were prohibited and becauseof this, either organizes refused toconduct an assembly or suchattempts were prevented throughintervention of the police;
Efforts are being increased inthe country and by the internationalorganizations to facilitate improve-ment of the legislation to ensurefreedom of assembly and eliminatethe shortcomings observed in prac-tice. In this regard, there were writ-ings by the press concerning the dis-cussions and meetings held betweenOSCE, Council of Europe, otherinternational organizations and thegovernment.
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Recommendations to ImproveLegislation
The Law on "Freedom ofAssembly" of Republic ofAzerbaijan adopted on November13, 1998 year defining the rules forexercising and restricting the free-dom of assembly as stated by theArticle 49 of the Constitution ofRepublic of Azerbaijan should bechanged substantially. In essence,the Law should regulate realizationof the assemblies. According to thecurrent language, the Law serves asinstruction for the relevant statestructures to prohibit and dispersethe assemblies.
The Law should put seriousrequirements before the bodiesadopting decision about restriction,suspension or prohibition of anassembly to indicate substantiatedreasons for restricting, suspendingand prohibiting an assembly. Thebody adopting the decision shouldprovide serious grounds for restrict-ing, suspending and prohibiting anassembly. The requirement thatdecisions regarding conduct of an
assembly be made by an authorizedbody and official and signed shouldbe included to the Law.
Specific provisions definingthe rules for conduct and restriction,prohibition, suspension and disper-sal of fortuitous assemblies, sponta-neous assemblies and counter-meet-ings (counter-demonstrations)should be included to the Law.
The requirements relatedwith submission of written notifica-tion and letter of notification shouldbe simplified. Most of the datarequired to be included to the letterof notification should be excludedfrom the Law, since they are notnecessary.
The authority by legislationto prohibit the mass action shouldbe granted not to the bodies of exec-utive power but to the courts. Therelevant body of executive power,which receives notification aboutconduct of a mass action, shouldappeal to court for prohibition ofconduct of the action and the prohi-bition should be imposed only basedon the substantiated court decision.Otherwise:
MONITORING REPORT
RECOMMENDATIONS
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Changes should be made tothe rules of submitting notificationsand delivery of the decision adopt-ed by the relevant body of executivepower related with the notificationto the organizers of an assembly.The organizers shall submit thenotification at least 10 days beforethe date of the planned gathering.The executive power shall presentthe written notification about pro-hibition of an assembly at most 5days prior to conduct of the assem-bly. This would allow the organiz-ers of an assembly to appeal tocourt in timely manner and as aresult, the right to an effective rem-edy would be ensured.
The provision of prohibit-ing an assembly during the periodof preparation for internationalevents of state importance deter-mined by the decision of the rele-vant body of executive power andon days of holding them on the ter-ritory of cities and regions wherethey are conducted as stipulated bypoint 3 of part III of Article 8 of theLaw should be excluded from theLaw since it contradicts theConstitution and relevant interna-tional norms to which Republic ofAzerbaijan is a party.
The provision on prohibi-tion of assemblies in a radius of 300meters around buildings of legisla-tive, executive and judicial powersof the Republic of Azerbaijanshould be excluded from the Law,because it creates conditions forungrounded restriction of the free-
dom of assembly and makes itimpossible to conduct assemblies inthe central part of the city.
The restriction related withtime of conducting assemblies inaccordance with part VIII ofArticle 9 of the Law should beexcluded from the Law.
The procedure of complain-ing should be determined in a waythat the assembly could be held inthe assigned time in case if the deci-sion on prohibition by the relevantbody of executive power abolishedby court.
The part VIII of Article 12of the Law stating that "the govern-ment shall have the responsibilityfor ensuring the security of anassembly. However, with an aim toensure the security of an assemblythat goes beyond security limitsensured by the government, organ-izers can request to attract addi-tional police forces under the con-dition of paying for it" should beexcluded from the Law.
The part V of Article 13 ofthe Law stating that "a participantof a lawful assembly can not belater brought to responsibility forparticipation in such an assembly.Only the participants of a lawfulassembly who violate the law canbe brought to responsibility"should be excluded from the Law.A participant of any assembly(authorized and unauthorized)should not be punished in case ifdoes not act against the Law.
The authorities granted to
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police to suspend when necessaryan assembly if holding of thisassembly does not meet the condi-tions stipulated in a written notifi-cation in accordance with point 3 ofpart I of the Article 14 of the Lawshould be excluded, since it leads toviolation of the freedom of assem-bly in practice.
The Law should not consid-er any procedures of notificationfor conduct of pickets and small-sized gatherings.
The provision consideringthat relevant bodies of executivepower determine place of assem-blies should be either excluded ordefined concretely so that not toleave a gap for restriction of theright for freedom of assembly.Conditions should be provided forconducting the assemblies both inthe center of the city and suburbs.
The Law should define thenotion of participant of an assem-bly more precisely.
The Criminal Code andCode of Administrative Tortsshould consider administrative andcriminal liabilities for the officialspreventing the freedom of assemblyillegally.
The President's decree pro-hibiting conduct of assemblies in"Azadlig" square, which is thebiggest square of capital Baku city,should be abolished.
Recommendations onImprovement of Practice ofApplication of Legislation
Majority of the bodies ofexecutive power, mainly theExecutive Power of Baku citywhich receive notifications on con-duct of assemblies prohibit theassemblies as if on legal basis byinterpreting the points of the Lawon "Freedom of Assembly" wrong-ly. To prevent this it would be expe-dient to present multiple com-plaints to courts against the lettersof prohibitions related with notifi-cations and further prove thegroundlessness of the decisions ofthe bodies of executive power andits contradicting the Article 11 ofthe Convention through Con-stitution Court and EuropeanCourt of Human Rights by over-coming the procedures.
Any resistance shown whiledispersal of the assemblies bypolice, which is peaceful but unau-thorized by the authorities, isassessed as mass disorder. Twogoals are being pursued here. Theyare: to apply inadequate forceagainst the participants of theassembly and organize the cam-paign of anti-propaganda againstthe participants and organizers ofthe assembly. In this regard, there isa need for the Constitution Courtto interpret the Article 220 of theCriminal Code (mass disorder) offi-cially.
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Part VI of Article 9 of theLaw on "Freedom of Assembly"states that "Relevant bodies of exec-utive power shall provide a specialarea for conducting gatherings,meetings and demonstrations in eachcity and region". This part of theLaw is applied quite defectively.Most of the bodies of executivepower adopt decisions on provid-ing areas for conduct of assembliesby referring to this part, which areunfit to conduct of assemblies,located far from the city and popu-lated areas. The state structuresshould instruct the local bodies ofexecutive power to lift this defectivepractice and such kind of decisionsshould be analyzed and abolished.
The structures of civil societyshould also organize court debatesto annul such decisions through thecourts.
Recommendations on PublicAwareness Increasing Activities
Majority of the officials oflocal bodies of executive power vio-late the requirements of theConstitution of the Republic ofAzerbaijan and correspondinginternational norms to whichRepublic of Azerbaijan is a partywhile imposing prohibitions onconduct of assemblies. In manycases it is due to the fact that offi-cials are not aware of the require-ments on freedom of assembly stip-ulated by the international normsand National legislation acts. From
this point, it is of high importanceto enlighten the relevant state struc-tures as well as responsible employ-ees of the local bodies of executivepower to ensure the freedom ofassembly. The activities of the stateand non-governmental organiza-tions are important in this direc-tion.
The organizers of assemblyas well as representatives of politi-cal parties and public unionsshould be educated about the free-dom of assembly, exercising thisfreedom, procedures of complain-ing and other issues. The activitiesto increase awareness should becarried out through providingtrainings and developing special lit-erature.
It is expedient to facilitatequality translation of the precedentdecisions made by European Courtof Human Rights related withArticle 11 of the Convention deal-ing with freedom of assembly toAzerbaijani language and dissemi-nate it widely. It is expedient tocarry out measures to facilitate allof the judges of the courts of gener-al jurisdiction of Supreme Courtand Judicial Legal Council to learnthese precedents.
It is of great importance tolearn the measures realized withinthe OSCE to facilitate ensuring thefreedom of assembly, the "Guide-lines on Freedom of PeacefulAssembly" prepared by the OSCEOffice for Democratic Institutionsand Human Rights and other docu-
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ments and use the principles reflect-ed in those documents both indevelopment of legislation and itsapplication.
Recommendations onOrganization of Victims' Protection
The organization of protectionof the people who were subjected tophysical violation by the bodies ofpower and brought to administra-tive and criminal liabilities whileusing the right for freedom ofassembly in the country stillremains to be the issue of the day.So far, nobody achieved punish-ment of the offenders or got com-pensation for the caused materialand moral damages, for being sub-jected to physical violation or forbeing brought to administrativeand criminal liabilities through theNational courts.
That is why:
The NGOs involved in pro-tection of Human Rights shouldarrange regular and consistentcampaigns to organize protectionof the victims both on national andinternational level who suffered ofviolation by the bodies of powerand brought to administrative andcriminal liabilities while using theright for freedom of assembly.
The lawyers while defendingthe persons whose right for free-dom of assembly had been violatedshould take into account that mostof the victims are subjected to tor-tures; their right to freedom arerestricted or they are deprived ofthe right to freedom and use offorce applied against the right totestimony of these persons.
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1) Your age group:
a) 18-24b) 25-34c) 35-44d) 45-54e) above 55
2) Gender
a) Maleb) Female
3) Please specify political party orpublic union/organization which youare affiliated with
a) Non-partisanb) Political party (please specify)______________________________c) Public union/organization(please specify) ______________________________d) Other (please specify)______________________________
4). How often do you participate inthe peaceful assemblies?
a) One-two times a year b) Three-four times a year c) Five times and more d) Other (please specify) _______
5). In what types of event do youparticipate most often? (multipleanswers possible)
a) meetingb) picketc) street processiond) Other (please specify) ______________________________
6). In what capacity did you partici-pate in the last event?
a) Participant b) Organizerc) Other (please specify) ______________________________
MONITORING REPORT
ANNEX
The questionnaire of the sociological interview conducted among politicalparty and public organization activists.
7). Where did the majority of theevents, you participated, took place?
a) Bakub) Regions (please specify)______________________________
8). Did you encounter any problemsor challenges at the stage of prepa-rations for the mass events?
a) Yesb) No
9). If yes, then please describesome of them. ________________________________________________________________________________________________________________________
10). Did you encounter any prob-lems or challenges at the stage ofconducting the assembly?
a) Yes b) No (pass to the question # 17)
11). If yes, then please describesome of them. ________________________________________________________________________________________________________________________
12). Did you ever face any acts ofviolence by the forces ensuring pub-lic safety while participating in themass events?
a) Yesb) Noc) Hard to answer
13). Were you ever subjected toadministrative or criminal penaltyfor participation in the assemblies?
a) Yesb) Noc) Hard to answer
14). Please indicate the type ofpenalty applied to you (multipleanswers possible):
a) Fineb) Administrative arrest c) Criminal liability d) Other (please specify)__________________________
15). Did you ever appeal to anyinstances with complaints and pleato restore your rights?
a) Yesb) No
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16). If yes, please specify institutionwhere your appeal/plea wasaddressed
a) Courtb) Governmental bodies c) International organizations d) Embassy (please specify coun-try) ___________________e) Other (please specify)_____________________________
17). Are you acquainted with theeffective legislation of the Republicof Azerbaijan on freedom of assem-bly?
a) Yes, I read the Law b) Yes, I read some of the articlesof the Law
c) No, I did not read the Law d) I do not see any need to readthe Law
18). What do you think is the mainchallenge towards realization of theright to peaceful assembly in theRepublic?
________________________________________________________________________________________________________________________
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Citizens' Labor Rights Protection League
MONITORING OF OBSERVANCE OF THE FREEDOM OF ASSEMBLYIN THE REPUBLIC OF AZERBAIJAN
EGISLATION AND PRACTICE
MONITORING REPORT
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At the printer’s: 27.08.2007Format: 70x100 1/16Volume: 4,5 p.p.Quantity: 500 copiesOrder: 159
Book is published in printinghouse of “Teymur Poliqraf” LTD
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