Background

In a letter dated 29 September 2014, the Secretary General of the Council of Europe, Mr. Thobjorn Jagland, requested the opinion of the Venice Commission on the Law of the Republic of Azerbaijan on Non-Governmental Organisations (Public Associations and Funds) (hereinafter, “Law on NGOs”), as amended.  

This opinion is based on the Law on NGOs as amended in 2009[1], already examined by the Venice Commission in its 2011 Opinion on NGO Law, and on the basis of unofficial translations of a set of amendments adopted by the Parliament of the Republic of Azerbaijan: 

·        on 15 February 2013 (entered into force on 12 March 2013),

·        on 17 December 2013 (entered into force on 3 February 2014) and

·        on 17 October 2014 (signed by the President on 14 November 2014) to the Law on NGOs[2].

Account also has been taken of the amendments adopted on 17 October 2014 (signed by the President on 14 November 2014) to the Law on Grants[3] and of an unofficial translation of the 2003 Law on Registration of Legal Entities and State Registry (hereinafter “Law on Registration”).

This opinion primarily focuses on the Law on Non-Governmental Organizations, as amended, since the request by the Secretary General explicitly refers to it. However, due to the interlinks between this law and other legal acts amended simultaneously, the opinion also contains sections relating to such acts, when it was deemed necessary to include them to get a better understanding of the legal context within which NGOs operate in Azerbaijan.

The present Opinion was adopted by the Venice Commission at its 101st Plenary Session (Venice, 12-13 December 2014).

Visit cancelled

In accordance with the Venice Commission’s practice, the Rapporteurs agreed to visit Baku in the framework of the preparation of this Opinion in order to hold meetings with the representatives of the relevant authorities and civil society organisations. The Secretariat, in a letter dated 15 October 2014 to the authorities, asked their support and assistance for the organisation of this visit. However, despite initial confirmation of the proposed dates for the visit, no information about the program of the visit and no invitations have been received and the visit regrettably had to be cancelled. Consequently, this Opinion has been drafted on the basis of available information without the input that could have been obtained during the planned visit. It is to be regretted that new amendments of relevance for this Opinion were enacted by Parliament and signed by the President while this Opinion was under preparation.

 

Conclusions

The recent amendments to the Law on NGOs of the Republic of Azerbaijan and to several other legal acts (Law on Registration, Law on Grants, Code of Administrative Offences) have brought some limited positive changes:

·        A specific period of up to 30 days is provided for within which NGOs are to rectify their alleged violations brought to their attention by a notification from state authorities;

·        the right of NGOs to appeal to administrative bodies or to a court with respect of any measure of liability defined by law is now explicitly recognized.

Despite these positive changes, the amendments have not addressed many of the recommendations contained in the 2011 Opinion of the Venice Commission:

·        the procedure of registration of NGOs has not been simplified in any substantive way,

·        branches and representations of foreign NGOs are still object of specific, and problematic, regulation, and

·        NGOs can still be dissolved for misgivings which are not serious enough to justify the imposition of the most severe sanction.

In addition, the amendments have introduced certain new controversial provisions. Branches and representations of foreign NGOs have been put into a yet more disadvantaged position with respect to other NGOs: additional reporting obligations, special penalties, limited validity of the agreements signed with the state and the excessive discretion of the state authorities to intervene in the matters of their internal life (obligatory content of their internal documents etc.).

Moreover, new obligations are imposed on NGOs with respect to the receipt of grants and donations and to reporting to the state authorities. Again, some of these obligations seem to be intrusive enough to constitute a prima facie violation of the right to freedom of association.

In general, the enhanced state supervision of NGOs seems to reflect a very paternalistic approach towards NGOs and calls again for sound justification. The same holds for new and enhanced penalties that can be imposed upon NGOs even for rather minor offences.

 

Globally, the cumulative effect of those stringent requirements, in addition to the wide discretion given to the executive authorities regarding the registration, operation and funding of NGOs, is likely to have a chilling effect on the civil society, especially on those associations that are devoted to key issues such as human rights, democracy and the rule of law. Like the Council of Europe Commissioner on Human Rights has, the Venice Commission finds that the amendments, in an overall assessment, “further restrict the operations of NGOs in Azerbaijan”. 

In conclusion, the following recommendations are made:

-          The registration process should be simplified and decentralised in order to decrease its excessive length; specific measures should be taken to ensure full respect for the legislative requirements and to prevent contra legem practices as the breach of deadlines for registrations, repeated unnecessary demands for correction of registration documents etc. The relevant provisions should be amended to limit the grounds for refusal of registration to serious deficiencies. 

-          The requirement for international NGOs to create local branches and representations and have them registered should be reconsidered. Blanket restrictions on the registration and operation of branches and representations of foreign NGOs, such as the absolute limitation of the number of branches and representations of foreign NGOs in Azerbaijan, should be eliminated.  

-          The amendment preventing foreign funding of NGOs should be revised as to authorize foreign funding unless there are clear and specific reasons not to do so. The procedure for obtaining the right to give a grant, if maintained, should be associated with clear criteria and procedural indications clearly laid down in the legislation.

-          Provisions allowing unwarranted interferences into the internal autonomy of NGOs, i.e. reporting obligations and state supervision on NGOs internal organisation and functioning, should be removed.   

The Venice Commission reiterates its readiness for further assistance to the authorities of Azerbaijan in this and other areas.