Political parties may challenge the compliance of the Law with the Constitution

The Venice Commission of the Council of Europe and the OSCE Office for Democratic Institutions and Human Rights have published a joint opinion on the new Law of Azerbaijan "On Political Parties". The document notes that the new law "has introduced a number of new problematic provisions that may have a restrictive impact on pluralism in the country."

The Venice Commission, the OSCE Office for Democratic Institutions and Human Rights remind that the right to freedom of association and freedom of speech are fundamental to the functioning of a democratic society.

"Political parties should be able to fully use these rights as a means of collective political expression. This means that the registration requirements must be acceptable. This should limit State control over political parties. Therefore, extensive State control over the internal activities of a political party, including the requirement to provide lists of its members to the State, is a completely unnecessary measure incompatible with the principles of necessity. Suspension of activity and dissolution of political parties are possible only in cases of the most serious violations of regulatory legal acts and in other extreme cases," the document says.

The Venice Commission, the OSCE Office for Democratic Institutions and Human Rights suggest that the authorities eliminate the shortcomings.

Mirali Huseynov, Chairman of the Public Association for the Study of Democracy, shared with ASTNA his opinion on the joint conclusion of the Venice Commission of the Council of Europe, the OSCE Office for Democratic Institutions and Human Rights on the new Law of Azerbaijan "On Political Parties".

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Question: The Venice Commission of the Council of Europe and the OSCE Office for Democratic Institutions and Human Rights have published a joint opinion on the new Law of Azerbaijan "On Political Parties". The document reads that the new Law "has put into effect a number of new problematic provisions that may have a restrictive impact on pluralism in the country." In plain language, what was the focus and what is required in the joint conclusion of the Venice Commission of the Council of Europe and the OSCE Office for Democratic Institutions and Human Rights?

Answer: First of all, concern is expressed about the process of adopting the law. It says that important legal acts, such as freedom of association, should be adopted in an open, transparent, inclusive, and collaborative process. But the fact that this did not happen, and the process took place extremely quickly, and the law was adopted without sufficient discussion, is expressed with particular concern. It is emphasized that the Law has a more detailed and complex structure compared to the previous one, and it is noted that the regulation has become more stringent.

In conclusion, it is noted that some expressions reflected in Article 4 of the law entitled "On the establishment and principles of the activity of a political party" open the way to uncertainty and have no legitimate grounds. This is expressed, in particular, in the absence of the right of a political party to speak on behalf of the whole people and address on behalf of the whole people, in vague requirements, such as not to violate the rights of members of a political party. And the following were noted as the main problematic issues:

• 1. Bringing the minimum number of party members from 1000 to 5000 people;
• 2. The need for re-registration of registered political parties;
• 3. The long and complicated procedure provided for the establishment and registration of political parties;
• 4. Prohibition of the activity of a political party without state registration;
• 5. Excessive regulation of internal party structures and operations;
• 6. Excessive control of the activities of the party by the Ministry of Justice and the register of a larger number of members of political parties;
• 7. Uncertainty of grounds and ease of procedure for suspension or even dissolution of a political party.

It is emphasized that all this raises concerns about compliance with international standards and rights guaranteed by the country's Constitution in the field of human rights and freedom of association, and it is recommended to eliminate.

Question: Is such a conclusion sufficient to change the Law? Can we expect any punishments, sanctions if Azerbaijan does not change this law?

Answer: Since the Venice Commission is the most specialized body on legislative issues in the European space, its opinion is not questioned or challenged. Since the issues reflected in the conclusion are evaluated in the context of the international obligations assumed by Azerbaijan, the main conclusions, and recommendations that she made also comply with international standards. I am of the opinion that, considering the recommendations, the Law is able to ensure its compliance with international standards. As for the second part of the question, I do not think that any sanctions will follow for non-compliance with these recommendations. And before that there were laws on which the Venice Commission gave a negative conclusion. The existing experience, including Azerbaijan's role in meeting Europe's energy needs at the moment, excludes such a possibility.

Question: Can political parties appeal to the Constitutional Court based on this conclusion?

Answer: According to the Article 34.1 of the Law of the Republic of Azerbaijan "On the Constitutional Court", "... everyone can appeal to the Constitutional Court normative legal acts of legislative and executive authorities, municipal and judicial acts that violate his rights and freedoms, in order to restore violated human rights and freedoms." The presence or absence of the Venice Commission's opinion is not a condition for political parties to appeal to the Constitutional Court. Each political party may, by filing a complaint with the Constitutional Court, challenge the constitutionality of the law.

Question: Government officials usually state that numerous provisions of the Venice Commission were considered when drafting the bill. Have the e's been accounted for? In general, what should be the procedure? Was it necessary to apply to the Venice Commission during the preparation of the bill or after it was adopted?

Answer: I do not think the officials are sincere in stating this. Although the conclusion of the Venice Commission states that it gave its opinion on the 1992 law, as well as on the amendments made to this law in 2011, but such cooperation in the process of drafting a new law was not noted. In fact, the bill should have been submitted to the Venice Commission in advance and its conclusion was received. However, if it has not been done, it does not mean that the process is completed. The preparation of such a conclusion after the adoption of the law is a message that the process has not been completed and the doors are still open.

Question: What steps should be taken to improve the Law and at the same time to improve the activities of political parties? What steps should the authorities take? What can political parties do to protect themselves?

Answer: Unfortunately, there is a situation where the issue of improving the activities of parties is no longer in their power. Given the significant depletion of resources and the presence of political apathy, there is no hope that in the near future they will be mobilized and strengthened to a level that allows them to influence political processes. The strength of political parties is their electorate, and until they set this electorate in motion, they will not be able to protect themselves or the interests of society.