The law "On Combating Corruption" does not consider the business of the President`s family as corrupt

In an interview with the Italian newspaper “La Repubblica”, President Ilham Aliyev, answering a question about the information in “The Pandora Papers” about his 700 million properties in London, said that “there is perhaps 5 percent of the truth. The rest is a lie."

“… I have been president for eighteen years. Before that, I was an entrepreneur, I was in business. My biography is well known. Moreover, I myself was a successful entrepreneur. When I was elected president, I was not a poor man. After becoming president, I stopped directly participating in business and handed it over to my family,” said the president.

Before becoming president, Ilham Aliyev held high positions in government agencies since 1994. He was vice president of SOCAR, a deputy since 1995 and served as prime minister until the presidential elections in 2003. While in these posts, he was at the same time the son of the president.

What does the legislation say about this? Can a government official, a person holding the position of a deputy, be in business? Isn't the fact that the presidential family is in business a violation of the competitive environment?

Lawyer Samed Rahimli answered ASTNA's questions regarding this topic.

* * *

Question: President Ilham Aliyev said in an interview with the Italian newspaper “La Repubblica” that before becoming president, he was an entrepreneur and was engaged in business. But you also know that since 1994, before becoming president, Ilham Aliyev held high positions in state bodies. He was vice-president of SOCAR, became a deputy in 1995, served as prime minister until the 2003 presidential elections. Can any government official in Azerbaijan do business? What does the legislation say about this?

Answer: According to paragraph 4 of Part I of the Article  89 of the Constitution of the Republic of Azerbaijan, formally adopted by a referendum on November 12, 1995 and entered into force on November 27, 1995, a deputy cannot engage in commercial activities, otherwise, he must be deprived of his deputy mandate. Note that President Ilham Aliyev became a deputy of the Milli Mejlis just at the elections to the Milli Mejlis, held in parallel with the referendum on November 12, 1995. Therefore, the provisions of the Constitution should have been applied to Ilham Aliyev (The transitional provisions of the Constitution also did not provide for any legal norms on the non-application of these provisions). From this point of view, in the context of the current statement of the president, it becomes obvious that until 2003 he was engaged in commercial activities as a deputy. This was a violation of the Article 89 of the Constitution and the relevant legislation. However, it is currently not possible to take any legal action in this regard. Because this fact happened during Ilham Aliyev's deputy. In this case, Ilham Aliyev should have been deprived of his mandate. But this is not currently possible. Because retrospectively it is impossible to revoke the mandate. From this point of view, there is no legal procedure in this regard, although the president's statement, being political, is significant.

Question: Ilham Aliyev also said in an interview that, having become president, he ceased to be directly involved in business and transferred the business to his family. By the way, let's not forget about one nuance. Before Ilham Aliyev became president, he was the son of the president. That is, both the president's son and a civil servant. I want to ask you, does the business of the president's family members cause a conflict of interest? Is the competitive environment disturbed? Shouldn't the president's family members be accountable? What does the Law say about this?

Answer: The Law "On the Fight against Corruption" does not consider that family members (close relatives) of the President are engaged in entrepreneurial activities as a corruption offense that creates conditions for corruption (Article 9 of this Law). In general, the only restriction in relation to close relatives in the Anti-Corruption Law is the prohibition of close relatives of officials to work in their direct subordination (Article 7 of the same law). In this regard, the entrepreneurial activity of the president's family is not a direct violation of the law "On the fight against corruption." However, the anti-corruption legislation of the Republic of Azerbaijan does not fully comply with international standards. Thus, the relevant regional principles related to Azerbaijan are reflected in the documents of the Council of Europe organization GRECO (Group of States Against Corruption). Azerbaijan's anti-corruption legislation does not fully comply with GRECO standards. Therefore, I believe that this problem will disappear if an appropriate adjustment is made.

Question: Why are not the declarations on the income and property of the president and his family members published in Azerbaijan?

Answer: The issue of disclosing financial declarations has been on the agenda for a long time. However, the authorities are not taking the necessary steps in this direction. True, the Anti-Corruption Law establishes the legal framework for filing financial declarations (Article 5 of the same law). However, in the relevant laws, the related regulatory framework is not formed at the proper level and the corresponding administrative measures are not taken. This approach has been around for quite some time. Such a dismissive attitude clearly demonstrates the government's disinterest in this issue.

Question: How should such issues be regulated in the legislation? What laws should be passed? What laws need to be amended?

Answer: First of all, the anti-corruption legislation of Azerbaijan should be brought in line with the established GRECO standards. At the same time, it should be noted that corruption occurs not only on a formal, but also on an informal basis. In this regard, it is necessary to establish clearer legal norms regarding informal corruption, including control over the business activities of family members of officials (close relatives, relatives, associates (friends and acquaintances). Especially when such entrepreneurial activity involves participation in state projects and receiving state projects (winning tenders financed from the state budget).

An administrative practice related to the filing of financial declarations should also be established. In addition, until the shadow market is legalized, it will be impossible to identify and document the links between the shadow and semi-shadow markets in the business activities of officials. In this regard, appropriate changes should be made. But above all, this requires political will. The Azerbaijani government has taken steps to eradicate corruption of minor officials. However, the Azerbaijani government does not have the political will to eradicate endemic (systemic, high-level) corruption.

Kamran Mahmudov