International law and its relation to domestic law

International agreements to which Azerbaijan is a party constitute an integral part of the country’s legislative system. (Art. 148 (II) of the Constitution, 12 November 1995)  In cases where there is a disagreement between Azerbaijan’s domestic legislation (except for cases involving the Constitution or legislation passed by referendum) and an international agreement, the provisions of the international agreement shall prevail. (Art. 151 of the Constitution)

FREEDOM OF ASSEMBLY

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International law and its relation to domestic law

International agreements to which Azerbaijan is a party constitute an integral part of the country’s legislative system. (Art. 148 (II) of the Constitution, 12 November 1995)  In cases where there is a disagreement between Azerbaijan’s domestic legislation (except for cases involving the Constitution or legislation passed by referendum) and an international agreement, the provisions of the international agreement shall prevail. (Art. 151 of the Constitution)

FREEDOM OF ASSEMBLY

Legal framework

Everyone shall have the right to take part in meetings. (Art. 49 (1) of the Constitution) Everyone shall have the right, having notified the relevant governmental bodies in advance, peacefully and without arms, to hold meetings, demonstrations, street processions, and pickets together with others. (Art. 49 (2) of the Constitution) Primary legislation includes the Freedom of Assembly Act (As of 13 November 1998. Hereinafter referred to as the Law) and Decree of the President of the Republic of Azerbaijan “On the application of the Freedom of Assembly Act”.(As of 13 November 1998) No secondary legislation has been adopted.

Types of assemblies defined and protected in domestic law

For the purposes of this Law, assembly refers to the temporary gathering of several people for a specific purpose in a public place. The Law regulates the following types of assemblies: gatherings, rallies, demonstrations, street processions, and pickets. (Art. 2 of the Law) Peaceful assemblies held on private property, as well as wedding ceremonies, funerals, religious rituals, holiday celebrations, and mourning events, are not regulated by this Law. (Art. 4 of the Law)

Possible limitations/restrictions/conditions, including notice requirements

In accordance with Azerbaijan’s international obligations, human rights and fundamental freedoms may be partially and temporarily restricted only in states of war or emergency or under martial law. The population shall be notified in advance of any restrictions to their rights and freedoms.(Art. 71, Part III of the Constitution) Human rights and fundamental freedoms may also be restricted to guarantee the implementation and protection of the rights and freedoms of others. (Art. 3.5 of the Constitutional Law “On regulating the implementation of human rights and freedoms in the Republic of Azerbaijan”, 24 December 2002) The rights and freedoms provided for in Article 49 (Freedom of Assembly) of the Constitution may be restricted in the interests of public safety or national security, for the prevention of disorder or crime, or for the protection of health or morals or of the rights and freedoms of others. (Art. 3.6 of the Constitutional Law)

Article 7 of the Law enumerates the same restrictions as those mentioned in the Constitutional Law with the addition of “prevention of violations of public order”. It also states that any restriction on freedom of peaceful assembly, as stipulated in Article 7, shall be proportionate to the aims pursued. Measures intended to restrict freedom of peaceful assembly shall be utterly necessary in order to achieve the aim justifying the restriction.

The State of Emergency Act stipulates that, during a state of emergency, the responsible executive authorities may limit and/or ban assemblies, meetings, rallies, demonstrations, pickets, and other mass events. (Art. 8.0.6 of the State of Emergency Act, 8 June 2004) The Martial Law stipulates that, in order to ensure state independence, territorial integrity, and the protection of the population from aggression, the president of the Republic of Azerbaijan, taking into account the particular circumstances, may issue a decree to ban meetings, rallies, demonstrations, pickets, and other mass events. (Art. 11 (10) of the Martial Law, 6 January 1994)

Assemblies advocating national, racial, or religious hatred or that incite discrimination, hostility, or violence, are prohibited.(Art. 8 (I) of the Law) Assemblies voicing war propaganda are prohibited.(Art. 8 (II) of the Law) Peaceful assemblies that have political aims are prohibited in the following cases:

During presidential, parliamentary, or municipal elections and referenda, for a period from 24 hours prior to election day and until polls are closed;

During preparations for significant international events of nationwide importance and throughout the duration of such events, in cities or districts where such events are conducted.(Art. 8 (III) of the Law)

The Law stipulates that a person or persons organizing an assembly shall notify, in advance and in writing, the relevant executive authority. The notification shall be submitted at least five days prior to the day of the planned assembly. It is not required to submit a written notification for spontaneous assemblies, although these might be restricted or suspended.(As stipulated in Articles 7 and 8 of the Law)

The notification shall include, inter alia, the purpose, place, and time of the assembly; the approximate number of participants; and the proposed route (in case of a street procession)(Art. 5 (II) of the Law) The written notification shall be signed by all of the organizers of the assembly.(Art. 5 (III) of the Law)

The relevant executive authority shall designate specific places for meetings, rallies, and demonstrations in every city or district.(Art. 9 (VI) of the Law) The place, time, and route of an assembly shall be co-ordinated with the relevant authorities.(Art. 9 (VII, VIII) of the Law) Any decisions of the executive authorities regarding the restriction of freedom of assembly (Outlined in Articles 7-9 of the Law) shall be delivered, in written form, to the organizers of the relevant assembly at least two days prior to the day of the planned assembly. These decisions shall be clear and justified.(Art. 10 of the Law)

Place, route, and time of assemblies

According to the Law, the relevant executive authority shall designate specific places for gatherings, rallies, and demonstrations in every city or district. The organizers of gatherings, rallies, or demonstrations may select one of these places for their event. The organizers of street processions shall obtain the consent of the relevant executive authority for the planned route of the procession.(Art. 9 (VI, VII) of the Law)

The Law prohibits gatherings, rallies, and demonstrations in the following places:

Within a radius of 300 metres of buildings of legislative, executive, or judicial authorities of the Republic of Azerbaijan;

In areas where railways, oil or gas pipelines, or high-voltage power lines pass;

In places designated by the relevant executive authorities for conducting special state events;

In areas that are used for military purposes, and within a radius of 300 meters of such areas; and

On the territory of detention facilities or of psychiatric treatment institutions, as well as within a radius of 300 meters of such facilities.(Art. 9 (III) of the Law) 

Pickets shall not be held closer than 10 meters from the relevant building, and no obstacles shall be made to hinder entry to, or exit from, the building.(Art. 9 (V) of the Law)

An assembly may be held between 8:00 and 19:00 during the summertime and between 9:00 and 17:00 during any other period of the year.(Art. 9 of the Law)

Power to ban assemblies

When necessary in a democratic society and taking account of the restrictions set forth in Article 7 of the Law, an assembly may be prohibited by a decision of the relevant executive authority.(Art. 8 (IV) of the Law)

When necessary, an assembly may be terminated by a decision of the relevant executive authority, taking into account the restrictions set forth in Article 7 of the Law.(Art. 8 (VI) of the Law)

Requirements for organizers; their rights and duties (including liability and penalties)

The organizer of an assembly is the person whose name is indicated in the written notification submitted to the relevant authorities.(Art. 6 (i) of the Law) Persons under 18 years of age, or persons whose legal capacity has been restricted by a court, cannot organize peaceful assemblies. Foreigners and stateless persons cannot organize peaceful assemblies that have political purposes.(Art. 6 of the Law)

The organizers of an assembly have the right of verbal and written expression. The organizers of an assembly shall use all available means to conduct the event in a peaceful and lawful manner and in accordance with the provisions set forth in a written notification regarding the assembly.(Art. 12 of the Law) The organizer may ask for police assistance (paid) in cases when an assembly spreads beyond the security measures provided by the government.(Art. 12(VII) of the Law)

The organizer shall bear a distinct sign that makes it possible to distinguish them from others involved in the assembly.

The organizer shall participate in the assembly. If this is not possible, the organizer, or their representatives, shall inform the relevant authorities and participants about their unavailability not less than three hours before the planned event. An assembly cannot be held without an organizer.(Art. 6 (V) of the Law)

The Code of Administrative Offences stipulates that for impeding the conduct of meetings, rallies, demonstrations, street processions, or pickets organized in the manner established by legislation:

Ordinary citizens shall be fined from 137,500 AZM to 165,000 AZM;

Public officials shall be fined from 275,000 AZM to 385,000 AZM.(Art. 49, Code of Administrative Offences, adopted in 2000)

The Criminal Code foresees the following sanctions for violations of the rules of conducting an assembly:

Organizing or conducting an assembly prohibited by legislation, or participation in such an assembly if it has resulted in a significant violation of the rights or legal interests of citizens is punishable by a fine of up to 1,650,000 AZM, limitation of liberty for up to one year, correctional labour for up to two years, or deprivation of liberty up to two years;

Carrying firearms or cold steel arms, or explosive substances and devices, as well as other substances and objects endangering people’s life and health is punishable by a fine of up to 2,750,000 AZM, limitation of liberty for up to one year, correctional labour for up to two years, or deprivation of liberty up to three years.(Art. 169 of the Criminal Code, adopted on 30 December 1999, in force 1 September 2000)

The Criminal Code foresees punishment of 10 to 15 years in prison or life in prison for taking any legislative or other measures aimed at preventing any racial group from participating in the political, social, economic, or cultural life of the country or from interfering in the complete development of such groups by refusing their rights and freedoms, including the freedom of assembly.(Art. 111.0.3 of the Criminal Code)

Requirements for participants; their rights and duties (including liability and penalties)

According to the Law, pickets shall involve not more than 50 people.(Art. 9 (V) of the Law) There are no quantitative requirements with regard to other types of assemblies.

The participants of an assembly have the right of verbal and written expression.(Art. 12 of the Law) Participation in an assembly is voluntary. No one can be forced to participate in an assembly.(Art. 13 (II) of the Law)

The participants of an assembly shall help protect public order and shall use all available means to follow the lawful demands of the organizers and representatives of the relevant executive authorities.(Art. 12 of the Law) Participants shall leave an assembly upon the decision of the relevant authorities to terminate or suspend the assembly.(In accordance with Art. 8 (V) and 14 (II) of the Law)

For liability and penalties, please see the section on “Requirements for organizers”.

State and police powers and responsibilities (including liability and penalties)

The state guarantees the right to freedom of assembly. It shall take the necessary measures to ensure that assemblies are organized peacefully, without arms, and in accordance with the Law.(Art. 1 (II) of the Law)

To the extent possible, the police shall help the organizers of an assembly enjoy the freedom of peaceful assembly.(Art. 15 of the Law)

The police have the right to stop an assembly if the organizers fail to submit notification (except for spontaneous assemblies, where notification is not needed)(Art 14 (I-2) of the Law) When necessary, the police may stop an assembly if it is not conducted in accordance with the conditions set forth in the relevant written notification.(Art. 14 (I-3) of the Law)

The police may forcibly terminate assemblies (while resorting to the means necessary) in order to enforce the prohibitions and restrictions provided for in Articles 7 and 8 of the Law.

The Criminal Code stipulates a punishment of up to seven years’ imprisonment for exceeding the limits of force accompanied by the use of violence or resulting in severe consequences.(Art. 309 of the Criminal Code)

The Code of Criminal Procedure imposes upon the state a duty to detect offences as early as possible; to investigate all the circumstances related to criminal prosecution thoroughly, completely, and objectively; and to prosecute those who have committed offences.(Art. 8 of the Code of Criminal Procedure, 14 July 2000)

The Civil Code (Art. 1100 of the Civil Code, 1 September 2000) and the Code of Criminal Procedure (Chapter XX of the Code of Criminal Procedure) guarantee compensation for the victims of police violence.  

Rights of appeal

Any decision by the executive authorities to restrict freedom of assembly may be appealed to a court. The relevant court shall consider such complaints within three days. The decisions of courts of first instance may be appealed to higher courts.

Comments

In its Election Observation Mission Report on the Presidential Election of the Republic of Azerbaijan (15 October 2003), the ODIHR recommended that the Law on Freedom of Assembly be amended to curtail the unlimited powers given to the local authorities to restrict political gatherings and to ensure that genuine freedom of assembly is respected during election periods.

Analysis written with the assistance of the Permanent Mission of the Republic of Azerbaijan to the OSCE and the OSCE Office in Baku, which completed the ODIHR questionnaire.

Posted in June 2006

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