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Strasbourg, 16 January 2001
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Restricted
CDL (2001) 5
Or. Eng.
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EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
Azerbaijan
Memorandum
Programme of Co-operation with Azerbaijan
Approved by
the Commission
at its 45th
Plenary meeting
(Venice, 15-16
December 2000)
At its 45th
Plenary meeting the Venice Commission approved the programme of co-operation
with Azerbaijan, which had been proposed by Messrs Khanlar Hajiyev, President
of the Constitutional Court, Mr Ramiz Mehdiyev, Head of the Presidential
Administration and Mr Safa Mirzoyev, Head of the Administration of Parliament.
The main
lines of the programme follow the mandate given the Venice-Commission given by
the Committee of Ministers, i.e. constitutional reform, electoral reform and
the media (CM (2000) 170). Already before, the Venice Commission had started
co-operation on the introduction of an access for individuals to the
Constitutional Court in accordance with Opinion 222 (2000) of the Parliamentary
Assembly.
Constitutional Reform
The major
thrust of the constitutional reform is to reach an equilibrium between the
executive and the legislative branches reinforcing the latter. Stronger
guarantees of the independence of the judiciary should complement the system of
checks and balances. This includes a clear definition of the powers of the
prosecutor general in line with European standards. The position of individuals
vis a vis the state is to be
strengthened by a clearer definition of constitutional clauses on restrictions
to Human Rights and by the introduction of the institute of an ombudsperson
equipped with constitutional guarantees for his/her independence.
Legislative
reform in the media field (see below) is to be accompanied by the creation of
an independent regulatory authority for the broadcasting sector. The
independence of this body is to be enshrined in the Constitution as well.
Article 4 of the Law on the Constitutional Court provides
for a system of referrals of requests by individuals for constitutional review
of normative acts from the Supreme Court to the Constitutional Court. In
practice, this provision has not proved to be as effective as had been hoped.
As opposed to this indirect access to the Constitutional Court, direct access
will require a regulation both on the constitutional level and in the Law on
the Constitutional Court. In addition, the codes on civil and criminal
procedure may need to be revised in order to give full effect to decisions of the
Constitutional Courts.
Other
issues of constitutional reform may be included in the programme of
co-operation if a need to do were to be identified.
The draft
elements of the constitutional reform are to be presented to the Venice
Commission in July and will then be discussed within a joint working group
between the authorities of Azerbaijan and the Venice Commission in July 2001
with a view to their adoption by Parliament in spring 2002 and possibly a
referendum thereafter.
Several of the above points will require implementing laws.
The Venice Commission will co-operate with the Directorate General of Legal
Affairs and the Directorate General of Human Rights in these issues.
Electoral
reform
At its 45th Plenary meeting the Venice Commission
discussed the electoral legislation of Azerbaijan in the light of the recent
presidential elections.
A major element in this respect is a reinforcement of the
position of the Central Electoral Commission strengthening its neutrality and
its capacity to deal effectively with electoral complaints both from a legal
and material point of view. The electoral commissions should be enabled and
obliged to deal with complaints directly rather than to refer them to the
prosecutor or ordinary courts. Additional safeguards against electoral fraud
need to be introduced.
Close co-operation with OSCE in this respect is paramount in
order to be able to assist Azerbaijan effectively.
Media – freedom of information:
The
existing Law on the Mass Media of 1999 is to be amended. In particular a
provision allowing the closure of media entities if they have violated the law
more than three times in one year needs to be revised. A future law on
television and radio broadcasting should lead to the establishment of a public
service broadcasting organisation. Other elements of the co-operation are
assistance in the establishment of an independent regulatory authority for the
broadcasting sector, the preparation of a law on freedom of information and a
revision of the Law on State Secrets.
The co-operation is also to cover assistance in the
definition of a proper balance between the journalist's rights to collect and
disseminate information on the one hand, and the right to privacy, honour and
dignity of individuals on the other hand.
In this area, the Venice Commission will co-operate
with the Directorate General of Human Rights.
Other points of the
programme of co-operation:
A law on minorities is to complement constitutional
guarantees. In this field, the Venice Commission will co-operate with the
Directorate General of Human Rights as well.
Upon proposal by the authorities of Azerbaijan made at
the 45th Plenary meeting of the Venice Commission, the introduction of a law on
data-protection was introduced into the present programme. This activity is to be dealt with in
co-operation with the Directorate General of Legal Affairs.
* * *
A timetable for the programme of co-operation presented by
the authorities of Azerbaijan is annexed.
Annex
TIMETABLE
Time-table of the implementation of
the commitments for the improvement of legislation of the Azerbaijan Republic
on occasion of the accession to the Council of Europe
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Deadline
for the passage after the accession to the Council of Europe
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Drafting
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Presentation
to the Venice Commission
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Passage by
the Milli Majlis (Parliament)
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Adoption
of
the
Constitutional Law
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1 year, 6 months
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01.06.2001
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01.07.2001
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Spring session, 2002
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Law “On the
Ombudsman”
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6 months
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01.03.2001
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15.03.2001
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31.05.2001
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Law “On National
Minorities”
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3 years
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December, 2002
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January, 2003
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Autumn session, 2003
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Amendments
to
the
electoral legislation
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2 years
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December, 2001
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January, 2002
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Autumn session, 2002
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Amendments to the
Law “On the
Constitutional Court”
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1 year, 6 months
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01.06.2001
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01.07.2001
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Spring session, 2002
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Amendments to the
Law “On Mass Media”
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1 year, 6 months
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01.09.2001
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01.10.2001
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Spring session, 2002
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Law “On
Television and Radio Broadcasting”
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1 year, 6 months
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01.09.2001
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01.10.2001
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Spring session, 2002
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Amendments to the Law “On Information Freedom and Immunity” and “On
State Secret”
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1 year, 6 months
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01.10.2001
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01.11.2001
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Spring session, 2002
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The time limits specified in the time-table are based on
recommendations given by the Parliamentary Assembly of the Council of Europe
(doc. Opinion of the Parliamentary Assembly N 222 (2000))
