Appeal of the National Council of Democratic Forces to the European Parliament

National Council of Democratic Forces (National Council hereafter), a political organization, was established by the opposition political parties, independent journalists and civil society representatives prior to the 2014 Presidential Election in Azerbaijan. The National Council nominated well-known historian, prof. Jamil Hasanli as its single candidate in the 2013 presidential election. J.Hasanli gained an overwhelming majority of the votes in the election. However, the results of the election were falsified in favour of the incumbent president. In its final report on the election, OSCE/ODIHR noted that the election was held in the absence of pre-election environment, in the conditions of restrictions to media, freedom of assembly, freedom of expression and an ongoing civil society crackdown. It further stated that the count was overwhelmingly negative, with 58 per cent of the observed polling stations assessed as bad or very bad, indicating very serious problems. At present, the National Council is compriserd of the Azerbaijan Popular Front Party, politicians joined individually from other opposition parties, intellectual and cultural elit, journalists and civil society representatives.

The National Council fights for protection of human rights, achieving the environment of free and fair elections reflecting the opinion of the people, in particular ensuring the right to freedom of assembly, removing pressures on independent media and civil society. The final objective of the National Council is to establish a democratic state with rule of law, and to achieve integration of Azerbaijan into the Euro-Atlantic arena. In order to achieve these goals and to restore all civil, political and economic rights, in particular - rights to free elections, right to freedom of assembly, freedom of expression, the National Council resorts to all civil mechanisms recognized by the Azerbaijani Consitution, international and European law. Considering the recent situation in Azerbaijan, the National Council regards political protest rallies and marches as one of the most effective, civil and optimal way for achieving its goals. By virtue of the rallies, the National Council has brought some crucial issues to the attention of the public.

The freedom of assembly has been restricted for almost three decades in Azerbaijan. From 2005 to 2013 holding rallies near the center of the capital city was not authorized and marches, in fact, were prohibited everywhere of the country. In the regions, neither rallies nor marches were permitted and such unlawful situation still exists. After longlasting struggle, the Government gave permission to hold rallies in "Mahsul Stadium" which is situated near the center of Baku, the capital city. But the marches in Baku - both rallies and marches in the regions still remained prohibited at that time.

Though the rallies of the National Council were held under strict conditions and restrictions until 2016, administrative interference was relatively less than today. However once large number of people joined the rallies held prior to the 2016 constitutional referendum, the government resorted to new unlawful ways for decreasing number of people attending the rallies. Since high number of participation was recorded in the rallies held on Sundays, the Government didn"t give permission for the rallies to be held on Sundays. In spite of the legal authorization of these rallies, the law enforcement agencies started to arrest the organizers and active National Council and APFP members prior to the rallies. The rally participants are identified by biometric cameras installed at the stadium where the rallies are held and they are summoned to the police stations, threatened due to participation in the rally, and warned that in case of participation again they will be punished by arrest. In the course of the National Council"s rallies held in September-October, 2017, at least 229 APFP members and National Council supporter were summoned to the police stations around the country, out of which 18 activists were sentenced to 10-30 days of administrative arrest, remainder were fined and released after warning. During the National Council"s 3 rallies held prior to the 11 April 2018, 174 APFP members were summoned to the police stations, out of which 17 persons were sentenced to 10-30 days of administrative arrest, remainder were likewise fined or released after warning. On the eve of 9 rallies of the National Council held from 11 September 2018 through the end of 2018, 86 APFP members were arrested due to the participation in the organising the rallies. Since the beginning of 2018 until today 53 APFP functionaries were administratively arrested. Prior to the every rally of the National Council, hundreds of APFP functionaries were summoned to the police stations and threatened. One of the Government"s steps in order to prevent mass participation in the rallies was to refuse the persons under the age of 18 to enter the rally venue.

Since 19 January 2019, the Azerbaijani government adopted a zero tolerance view to the opposition rallies - considering the rallies as a potential danger to their power. The events which put an end to the government"s tolerance on rallies happened as follows: On 26 December 2018, new criminal case was instituted against video blogger Mehman Huseynov three months before his prison was to expire. Though the facts that the political prisoners encountered new criminal case just a short time before they served their whole prison term were observed previous years, this method was imposed widely against political prisoners since September 2017. A short time before Mehman"s case 3 political prisoners including PFPA chairman"s advisor Mammad Ibrahim faced the same scenario. M.Huseynov"s case was 4th such case in kind. The 19 January rally was the most crowded rally since 2005- gathering at least 20,000 people. Before and after the rally more than 40 APFP functionaries were arrested. Though the official reasons for their arrest were unrelated to freedom of assembly (for instance, unaddressed insult in the public place), the ulterior purpose was to prevent mass participation at the rally. Additionally, thousands of rally participants were summoned to police stations by phone call and questioned about their reason for attending the rallies. They were threatened and warned that in case of a repeat participation in rallies they would be punished by arrest. In total 52 PFPA members were arrested in the last 3 months.

The 19 January rally was the end of the Government"s partial tolerance towards rallies. The appeals to the Baku City Executive Power made by the National Council for holding subsequent rallies were refused. The National Council appealed 6 times for holding the rally on the dates of 26 January, 02 March, 06 April, 20 April, 5 May and 11 May but the Baku City Executive Power didn"t authorize any of them. In response to the appeals, Baku City Executive Power failed to produce any evidence of illegality that could justify their refusal. On the contrary, in its statement immediately after the rally, the Baku City Main Police Department officially stated that the rally was held in a peaceful manner and no unlawful acts were recorded.

Freedom of assembly is guaranteed by national legislation - the Constitution of Azerbaijan Republic and several international and regional instruments. When Azerbaijan became a member of the United Nations in 1992, it acceded to the International Covenant on Civil and Political Rights which is legally binding on the member states. By accession to the Council of Europe in 2001, Azerbaijan ratified the European Convention on Human Rights and Fundamental Freedoms and recognized the jurisdiction of the European Court of Human Rights. Article 11 of the European Convenstion guarantees the right to the freedom of assembly and describes exhausted list of restrictions which can be carried out by the states. Restrictions imposed by the Government to freedom of assembly are inconsistent with the requirements of this Article. In its numerous judgments against Azerbaijan in connection with the violation of freedom of assembly, the Strasbourg Court found that the Government"s interference with this right was not justified. In its 21 judgments, the European Court noted that 72 applicants" administrative arrest had violated their right to liberty, right to a fair trial and freedom of asembly. In these judgements the Court said these applicants were arrested in order to prevent them from attending the rallies or punish them for participation. More than half of these applicants are the APFP members. Despite the judgments of the European Court, the Azerbaijani Government continued arrests in connection to authorized rallies - hundreds of people were summoned to the law enforcement agencies and police departments, threatened, fined or at best released after warning. The Committe of Ministers of the Council of Europe supervising the execution of the European Court"s judgements and decisions noted that this group of cases raised complex problems stemming from the non-compliance of the domestic legislation on public assemblies with the requirements of Article 11 of the Convention, highlighting arbitrary application of the law by the police, the local authorities and the courts involved and called on the Government for urgent action to ensure the adoption of the different reforms required. They further noted that absence of the steps from the authorities in this respect, despite the Committee"s repeated calls resulted in constant influx of new cases with similar violations.

In addition to all of these, the calls of international human rights organisations are neglected as well. This is the reason why lots of the National Council and APFP members have applied to the European Courts on violation of their right to freedom of assembly. At present, majority of the cases are in the communication stage.

Freedom of assembly is also one of the fundamental rights of the European Union, being a precondition for democracy, as this right is one of the means of ensuring several human rights and fundamental freedoms and the right to free expression in particular. For this reason, the European Court of Human Rights and the European Court of Justice note that the restrictions to this right can be made in only exceptional circumstances. By ratifying the international and regional human rights treaties, Azerbaijan became committed not only to refrain from unlawful interference with freedom of assembly bu also to take proactive and preventive measures to protect it. Nevertheless, Azerbaijani government fails to comply with its negative obligations by unjustified interference and with its positive obligations to ensure enjoyment of this right - the Government itself is the main obstacle to benefit from this right.

Having regard to the aforementioned factors, by considering the agreement which is expected to be signed between Azerbaijan and the European Union, the National Council emphasizes that the following issues should be raised before the Azerbaijani Government by the European Union in bilateral negotiations.

• Due attention should be paid to human rights in the expected agreement, a completely separate part in the document should be devoted to human rights. A guarantee should be obtained from the Azerbaijani government in this respect and provisions envisaging control mechanism for ensuring the implementation of the obligations should be enshrined in the agreement;
• The important steps for protection and promotion of human rights should be taken, all politically motivated arrests should be stopped, the release of more than 100 political prisoners must be one of the preconditions for the agreement, politically motivated administrative arrest which is one of the political methods to discourage people to participate in the rallies must end, summoning of the political activists to the police departments, their being threatened, fined and arrested must be stopped;
• Freedom of assembly should be ensured in the whole country, national legislation should be brought in line with international standards. Political will must be demonstrated for achieving all these changes;
• The provisions preventing unlawful interference of the law enforcement agencies with all peacefull rallies, marches, and flashmobs regardless of whether the authorities were informed or not about the events should be brought to the legislation; the government should not only refrain from unjustified interference but also implement its positive obligations and take all appropriate steps in order to ensure the rallies proceed in a peaceful manner;
• Age restrictions on participation in the lawful and peaceful rallies must be removed, considering that those under age of 18 have full right to attend the rallies and demonstrations guaranteed by the UN Convention on the Rights of the Child as well as the European Convention, persons under age of 18 must not be prohibited from accessing the rally venues.
• The prohibition to hold rallies on Sundays must be removed, the right to choose the date and time of the rallies must remain under the discretion of the rally organizers.