|
Strasbourg, 21 December
2001
|
CDL-INF (2001) 27
|
OPINION
ON THE DRAFT CONSTITUTIONAL
LAW
ON REGULATION OF THE IMPLEMENTATION
OF HUMAN RIGHTS AND FREEDOMS
OF AZERBAÏJAN
Adopted
by the Venice Commission
at
its 49th Plenary Meeting,
(Venice
14-15 December 2001)
on
the basis of comments made by:
Mr
Franz MATSCHER (Member, Austria)
Mr
Pieter VAN DIJK (Member, The Netherlands)
Mr
Gerard BATLINER (Member, Liechtenstein)
Mr
Aivars ENDZINS (Member, Latvia)
Mr
James HAMILTON (Member, Ireland)
Introduction
1. Within the framework of the programme of co-operation
between Azerbaijan and the Venice Commission, an opinion on the draft law “On
Regulation of Implementation of Human Rights and Freedoms in the Azerbaijan
Republic” was requested by the Presidential administration of the Republic of
Azerbaijan.
2. Following a meeting held in Baku on 15 November 2001,
whereby the preliminary comments on draft law made by the Venice Commission
Rapporteurs Messrs Franz Matscher and Pieter van Dijk were discussed, the first
version of the draft law was partially amended. The amended text was then
discussed during the meeting of the Venice Commission Working Group on the
reform of the constitutional system of Azerbaijan, held in Strasbourg on 28-29
November 2001. Messrs Franz Matscher, Gerard Batliner, Aivars Endzins and James
Hamilton took part in this meeting on behalf of the Commission; the Delegation
of Azerbaijan was composed of Meesrs Khanlar Hadjiyev, Chairman of the
Constitutional Court and Member of the Venice Commission, Safa Mirzoyev, Head
of the Secretariat of the Milli Majlis, Shahin Aliev, Head of the Legal
Department of the Office of the President of the Republic, Rafael Gvaladze,
judge of the Constitutional Court and Raouf Guliyev, Head of the International
Relations Department of the Constitutional Court.
3. At its 49th Plenary Meeting (Venice, 14-15
December 2001), the Commission adopted the present opinion on the basis of the
comments by the Rapporteurs.
General remarks
4. Azerbaijan became a member of the Council of Europe
on 25 January 2001. At the time of its accession, it also signed the European
Convention on Human Rights (hereinafter referred to as “ECHR”) as amended by
Protocols Nos. 2 and 11 thereto, and Protocols No 1, 4, 6 and 7. The
ratification of the ECHR should take place at the beginning of the next year.
The present draft constitutional law “On Regulation of the Implementation of
Human Rights and Freedoms in the Azerbaijan Republic” (hereinafter referred to
as “draft law”) aims at facilitating the implementation of the ECHR in the
Azerbaijan Republic by bringing domestic legislation in conformity with the
ECHR rules and other Council of Europe standards in the field.
5. In this respect, the Preamble to the draft law
clearly sets out as its aim “to bring the exercise of human rights and freedoms
in Azerbaijan in conformity with the ECHR”.
6. The draft law provides for precise rules on: a)
restrictions of the exercise of human rights; b) the scope of certain rights
and freedoms guaranteed in the Constitution; and c) the right - for individuals
and tribunals - to address the Constitutional Court in human rights matters.
7. Harmonisation of the human rights protection system
in the Constitution of Azerbaijan with the ECHR is effected as follows: first,
the draft law provides for guidelines for the implementation of ECHR provisions
concerning restrictions on human rights and freedoms; then, it supplements some
constitutional provisions, with a view to ensuring their compatibility with the
ECHR.
8. The Venice Commission favours the adoption of the
draft law (as modified along the lines which follow), in particular taking into
account the relative lack of clarity of the constitutional regime concerning
human rights restrictions. Indeed, the Constitution of the Republic of
Azerbaijan provides for limited possibilities of restrictions in three of its
provisions (Article 28 on the right to freedom, Article 32 on personal
inviolability and Article 48 on the freedom of belief), while at the same time
for some other guaranteed rights and freedoms, for example, the right to strike
(article 36), the right to preserve personal and family secrets (article
32),the right to secure life (article 31) or the inviolability of residence
(article 33), the possibility to be restricted is generally left to the
discretion of the legislator (“in cases specified by law”). On the other
hand, Article 71.II states that “No one may restrict implementation of
rights and freedoms of human being and citizen”. Moreover, Article 71.III
sets out the legal grounds for possible derogations from human rights and
freedoms without however specifying the manner in which these derogations may
be implemented. In general, the constitutional provisions concerning
restrictions on and derogations from human rights give no clear indication as
to the scope of discretion of the competent authorities, thus leaving the
individual without adequate protection against arbitrary interference.
9. The Venice Commission finds it therefore necessary
that conditions under which restrictions may be imposed be clearly stipulated
in the Constitution, in order to avoid improper interpretation that could lead
to violations of guaranteed rights and freedoms. In this context, the enactment
of a constitutional law that will set precise limits to possible restrictions
and derogations and will ensure that these restrictions do not go beyond what
is accepted in accordance with European standards is particularly welcomed.
Status of the ECHR in the legal
order of Azerbaijan
10. According to Article 12 of the Constitution (“The
highest priority objective of the State”): “Rights and liberties of a person
and citizen listed in the present Constitution are implemented in accordance
with international treaties to which the Azerbaijan Republic is one of the
parties”. Article 148 concerning “Acts Constituting the Legislative system
of the Azerbaijan Republic” reads:
“The
legislative system of the Azerbaijan Republic consists of the following
normative-legal Acts:
1. The Constitution;
2. Acts accepted by
referendum;
3. Laws;
4. Orders;
5. Decrees of the Cabinet of
Ministers of the Azerbaijan Republic;
6. Normative Acts of central
Executive power bodies.
International
agreements to which the Azerbaijan Republic is one of the parties shall be an
integral part of the Legislative system of the Republic”.
11.
As
to the legal force of the international agreements, Article 151 (“Legal Force
of International Acts”) reads: “Whenever there is disagreement between normative
legal Acts included in Legislation system of the Azerbaijan Republic (except
the Constitution of the Azerbaijan Republic and the Acts adopted by way of
referendum) and International agreements to which the Azerbaijan Republic is a
party, provisions of international agreements shall prevail”.
12. It follows from the above
provisions that, once ratified by Azerbaijan, the ECHR will be incorporated
automatically in the domestic legal system and its self-executing provisions
will be directly applicable.
13. It is also clear from the above
provisions that where the provisions in the ECHR conflict with domestic law
other than the Constitution, the former will prevail.
14. As regards the position of the ECHR vis-à-vis the
Constitution, the following should be noted: Section II of the Constitution of
Azerbaijan provides for a large catalogue of rights and freedoms. Although some
economic and social rights that are not guaranteed by the ECHR are provided
for, the guarantees laid down in the Constitution are, in some instances, less
extensive than those enshrined in the ECHR. Because of the direct effect of the
ECHR, it must be assumed that behaviour that amounts to a violation of the ECHR
will be prohibited in Azerbaijan even though there is no specific constitutional
prohibition of this behaviour. Furthermore, in the light of Article 151 read
together with Article 12, it can be assumed that even in the case of an
apparent “disagreement” between the ECHR and the Constitution, the latter’s
provisions will be interpreted and implemented in the light of the ECHR
provisions. Consequently, the essence of the ECHR guarantees will be
safeguarded.
15. The draft constitutional law does not affect the
privileged position that the ECHR will have, after its ratification by
Azerbaijan, in the domestic legal order. Its provisions should be read and
interpreted taking into account the stated aims of the constitutional law, i.e.
to bring the legislation in Azerbaijan in conformity with the ECHR.
Remarks with respect to specific articles
As to the expression
“implementation of human rights”
16.
The
Venice Commission understands that the word “implementation” in the
title as well as in the preamble to the draft law does not imply that
the self-executing provisions of the ECHR have no direct effect within the
domestic legal order of Azerbaijan.
Article 1
17.
This
article combines the idea of Article 17 of the ECHR, that is, the prohibition
of the abuse of rights (paragraph 2), and general restrictions on guaranteed
human rights and freedoms – with the protection of human rights and
freedoms of others (paragraph 1). The Venice Commission would favour adopting a
new formulation that would reproduce more closely the text of Article 17 of the
ECHR.
18.
In
any case, the second sentence of paragraph 1, which establishes a general basis
for human rights restrictions, could be misleading. Although logical in its
essence, the request to “abide to the Constitution and laws of Azerbaijan”
could be interpreted as a condition for the enjoyment of guaranteed rights and
freedoms. This should not be the case, as persons that have infringed the law
also may and should invoke the guaranteed human rights and freedoms (for
example, the right to respect for correspondence). On the other hand, it could
also be that a law may be unconstitutional itself.
19.
Therefore,
the Venice Commission suggests deleting the second part of the sentence,
i.e. the words “and shall abide to the Constitution and laws of the Republic of
Azerbaijan”.
20.
As
to the prohibition of the abuse of rights, such a provision is usually put at
the end in international legal instruments concerning human rights and
freedoms. Paragraph 2 of this Article could therefore be transferred to the
end of the draft law.
Article 2
21.
The
Venice Commission warmly supports the prohibition of the restriction on the
right to life guaranteed by Article 27 of the Constitution, in accordance with
the abolition of the death penalty in 1998. Nevertheless, it would be advisable
to clarify the meaning of “death in the time of war”. To this respect,
the Venice Commission would recall the Parliamentary Assembly Recommendation n°
1246 (1994) on the abolition of capital punishment and in particular its
paragraph 5.
22.
Article
15.2 of the ECHR does not allow for any derogation from, inter alia, the
prohibition of slavery or servitude (Article 4.1) and the principle nulla
poena sine lege (Article 7). Article 2 of the draft law refers instead to
Article 28.I of the Constitution, which guarantees the general right to
freedom. As there is no specific provision on slavery in the Constitution, it
may reasonably be assumed that Article 28.I also covers the prohibition of
slavery or servitude. This assumption has been confirmed by the representatives
of Azerbaijan authorities that participated in the Strasbourg meeting on 29-30
November 2001.
23.
On
the other hand, Article 2 of the draft law makes no reference at all to the
right guaranteed by Article 7 of the ECHR (no punishment without law). A
reference to Article 71.VIII of the Constitution should therefore be added in
Article 2 of the draft constitutional law
24.
As
regards the wording of the article, the use of the term prohibition of
“restriction” on certain guaranteed human rights and freedoms could create some
confusion. A reference to prohibition of derogation from these rights
and freedoms (as provided for by Article 15 of the ECHR) in the title as well
as in the text of the article itself might be necessary.
Article 3
25.
The
Commission welcomes the drafters’ wish to specify in the constitutional law the
requirements for restricting rights and freedoms through laws. In accordance
with the ECHR’s provisions and the jurisprudence of the European Court of Human
Rights, any restriction on guaranteed human rights and freedoms must have a
precise and accessible legal basis, pursue a legitimate aim and be
proportionate to this aim. The first paragraph of Article 3 rightly requires
that laws restricting fundamental rights and freedoms contain a reference to
the fundamental right concerned. This requirement may increase the legislator’s
vigilance when adopting norms that affect the exercise of human rights. The
Commission also welcomes the provision in the second paragraph, according to
which limitations on human rights should not “alter the essence of these rights
and freedoms”. Paragraph 3 refers to the requirements of legality. However, in
the Commission’s view, this provision, as it presently stands, is too vague.
The Venice Commission would therefore suggest replacing the last part of the
sentence starting with “imposed by law…” with “shall pursue
legitimate aim, as prescribed in the Constitution and this law, and be
proportionate to this aim”, in order to ensure its conformity with the
ECHR.
26.
Finally,
it should also be noted that the proportionality requirement does not concern
only legal provisions, but also their implementation. As it refers only to
“laws”, the present title of the article risks limiting its scope.
Consequently, the Venice Commission would suggest reformulating it into: “Requirements
for restrictions on human rights and freedoms”.
Article 4
27.
This
article follows relatively closely the text of Article 5, para 1 of the ECHR,
and Article 1 of Protocol no. 4. However, in order to underline the need to
respect the principle of legality, the Commission finds that the following
should be included in the first paragraph: “and in accordance with a
procedure prescribed by law”.
28.
The
Commission welcomes the introduction into the present draft law of the
provisions in Article 4 paragraphs 2 to 5, corresponding to Article 5,
paragraphs 3 to 5 of the ECHR that were missing in the first draft following
the suggestion made by the Rapporteurs.
Article 5
29.
The
first paragraph of this Article sets out the principle that restrictions to
guaranteed human rights and freedoms can be imposed “only by the law”. This
provision is thus in line with the general doctrine on restrictions on human
rights in the ECHR as expressed in particular in the second paragraph of
Articles 8 to 11 of the ECHR and should be read in conjunction with Article 3.
The Commission further recalls that, pursuant to the jurisprudence of the
European Court of Human Rights any law restricting human rights and freedoms
must be adequately accessible and formulated in a manner that enables citizens
to regulate their conduct.
30.
Paragraph
3 of Article 5 sets out the grounds that are recognised as legitimate for
restricting the exercise of human rights and freedoms guaranteed by the
Constitution. It corresponds, grosso modo, to para. 2 of Articles 8 to
11 of the ECHR, and other substantive rights guaranteed in the Protocols.
Article 6
31. This Article supplements Article 60.II of the
Constitution by providing for a constitutional complaint in case of an
alleged violation of guaranteed human rights and freedoms. It also constitutes
the legal basis for corresponding provisions in the draft law on the
Constitutional Court that establish the competence of that Court to examine
individual constitutional complaints and regulate the relevant procedure.
32. It also responds to the Parliamentary Assembly
requirement stated in its Opinion 222 (2000) on Azerbaijan’s application for
membership of the Council of Europe, to grant access to the Constitutional
Court also to individuals.
33. The Venice Commission warmly supports this provision
enabling “anyone” to appeal to the Constitutional Court. The individual
complaint will allow the Constitutional Court to become an important player in
the protection of human rights and freedoms in Azerbaijan.
34. It became clear from the discussions in Baku and
Strasbourg concerning both the draft constitutional law under consideration and
the draft law on the Constitutional Court that the drafters did not wish to
extend the competence of the Constitutional Court in such a way as to comprise
the examination of all cases in which a violation of human rights is alleged,
but rather to focus on those cases in which it is alleged that a “legal
norm” that applied in a case is in contradiction to the fundamental rights
enshrined in the Constitution. In this respect, the Commission would draw the
drafters’ attention to the fact that the present formulation can give rise to
misunderstandings and be interpreted as allowing the Constitutional Court to
review not only the constitutionality of the norm on which a decision is based,
but also to examine whether it has been applied in a constitutional manner.
Apparently this was not intended by the drafters. Although much of the details
on the procedure and effects of decisions on individual complaints will be
addressed in the law on the Constitutional Court, the Commission finds it
necessary that the scope of the individual complaint be set out clearly in
Article 6 of the Constitutional Law.
35.
Regarding
the legal basis for the evaluation of the norm by the Constitutional Court,
paragraph III of Article 130 of the Constitution - to which Article 6 of the
draft law refers - requires the Constitutional Court to decide on the
conformity of a normative act with the Constitution of the Azerbaijan Republic
or with a superior normative act. On the other hand, according to Article 2 of
the draft law on Constitutional Court, the legal basis for its activity are: “Constitution
of Azerbaijan Republic, interstate agreements which Azerbaijan Republic is
a party to, present Law and other laws”. Therefore, once Azerbaijan ratifies the ECHR, the
latter will also form a legal basis for the action of the Constitutional Court.
In order to avoid possible restrictive interpretation of Article 6, it might be
advisable to add a reference to international treaties in the field of human
rights and freedoms. In such a way, Article 6 would also conform more closely
to the proclaimed aim of the draft law.
Article 7
36.
The
purpose of this article is to respond to the demand by the Parliamentary
Assembly to “re-examine the conditions of access to the Constitutional Court
and grant access … to courts at all levels” (Opinion 222 (2000)). It
introduces the possibility for ordinary courts to refer to the
Constitutional Court issues as to the constitutionality of norms regulating
human rights or freedoms. By doing so, it enlarges the list of persons that can
request the Constitutional Court to give an interpretation of the
Constitution and laws of the Azerbaijan established in Article 130.IV of the
Constitution. On the basis of this provision the Constitutional Court will be
able to provide interpretation of human rights provisions in the Constitution
and ensure interpretation of laws of Republic of Azerbaijan in accordance with
the Constitution.
37. As it presently stands, this Article only sets out
the principle of referral of issues by ordinary courts to the Constitutional
Court. It leaves open several questions that should be regulated in a law,
possibly the law on Constitutional Court: Can the Constitutional Court refuse
to accept a case submitted to it by the ordinary court? Is the Constitutional
Court competent to engage in “concrete” judicial review, in which case it would
act as the last judicial instance? Who will be the parties before the
Constitutional Court? What will be the effects of the Court’s judgments? The
law on the Constitutional Court should address these issues and clearly
establish the procedure to the followed by the ordinary courts, the scope of
the competences of the Constitutional Court, and the effects of its judgments.
CONCLUSIONS
The Venice Commission is satisfied that the draft
constitutional law determines the precise limits of possible restrictions and
derogations to guaranteed human rights and freedoms and thus contributes to
improving the legal framework of human rights protection in Azerbaijan.
38.
In
order to ensure the conformity of the law with the European standards in the
field of human rights protection, it is suggested that following changes be
made:
Ø
In
Article 1.1, replace the first sentence by a new formulation that reproduces
more closely the text of Article 17 of the ECHR;
Ø
In
the same Article, delete the second part of the last sentence starting with
“and shall abide to the Constitution and laws of the Republic of
Azerbaijan “;
Ø
In
Article 2, a reference to Article 71.VIII of the Constitution should be
included;
Ø
The
title of Article 3 should read as follows: “Requirements for restrictions to
human rights and freedoms”;
Ø
In
paragraph 3 of Article 3, the last part of the sentence starting with “imposed
by law…” should be replaced with “shall pursue a legitimate aim, as prescribed
in the Constitution and this law, and be proportionate to this aim”;
Ø
Add
the following sentence in Article 4.1: “and in accordance with a procedure
prescribed by law”;
Ø
The
wording in Article 6 should be reconsidered in order to clarify the scope of
the review undertaken by the Constitutional Court when dealing with individual
constitutional complaints and to ensure that the Constitutional Court will
examine the challenged acts in the light of both the Constitution and
international human rights treaties to which Azerbaijan is a party.
A P P E N D I X
Draft Constitutional Law of the Republic of Azerbaijan
on Regulation of the Exercise of Human Rights
and Freedoms
in the Republic of Azerbaijan
The present Constitutional Law is adopted with a view of
bringing the exercise of human right and freedoms in the Republic of Azerbaijan
in conformity with the European Convention on Protection of Fundamental Human
Rights and Freedoms.
Article 1. Basic conditions of the exercise of human rights and freedoms
1.1. Human and civil rights and freedoms stipulated
in the Constitution of the Republic of Azerbaijan shall not be used by anybody
for restriction of human rights and freedoms of others, and shall not justify
these acts. Everyone in exercise of his/her rights and freedoms shall not
violate rights and freedoms of others, and shall abide to the Constitution and
laws of the Republic of Azerbaijan.
1.2. No one should abuse of his/her
rights and freedoms.
Article 2. Human rights and freedoms that might not be restricted
Rights and freedoms provided for in
the Article 27 (save in death in the time of war), Para I of the Article 28, Para
III of the Article 46, and Article 63 might not be restricted.
Article 3. Requirements to the laws restricting human rights and freedoms
3.1. The Law restricting human
rights and freedoms shall directly quote the restricted right or freedom, as
well as the relevant Article of the Constitution of the Republic of Azerbaijan.
3.2. Restrictions on human rights
and freedoms should not alter the essence of these rights and freedoms.
3.3. Restrictions on human rights
and freedoms imposed by law should be compatible to the aims of that law.
Article 4. Restrictions on arrest, detention and
deprivation of liberty of the person
4.1. No one shall be arrested,
detained or deprived of liberty, save in the following cases:
4.1.1. the lawful detention of a
person after conviction by a competent court;
4.1.2. the lawful arrest or
detention of a person for non-compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law;
4.1.3. the lawful arrest or
detention of a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his committing
an offence or fleeing after having done so;
4.1.4. the detention of a minor by
lawful order for the purpose of educational supervision or his lawful detention
for the purpose of bringing him before the competent legal authority;
4.1.5. the lawful detention of
persons for the prevention of the spreading of infectious diseases, of persons
of unsound mind, alcoholics or drug addicts or vagrants;
4.1.6. the lawful arrest or
detention of a person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view to
deportation or extradition.
4.2.
Everyone arrested or detained in accordance with the provisions of Article 4.1
of the this Law shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power. This person shall be entitled to
trial within a reasonable time or to release pending trial.
4.3.
Everyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings by which the lawfulness of his detention shall be
decided speedily by a court and his release ordered if the detention is not
lawful.
4.4. Release may be conditioned by
guarantees to appear for trial.
4.5.
Everyone who has been the victim of arrest or detention in contravention of the
provisions of this article shall have an enforceable right to compensation.
4.6. No one shall be arrested,
detained or deprived of liberty for impairment of civil obligation.
Article 5. Requirements to the legal restrictions on human rights and
freedoms
5.1. Human rights and freedoms,
provided for in the Constitution of the Republic of Azerbaijan and in the
international agreements, acceded by the Republic of Azerbaijan shall be
subject for restriction only by the law.
5.2. Beside on the grounds,
stipulated in the Para II of the Article 71 of the Constitution of the Republic
of Azerbaijan, human rights and freedoms may be subject to restrictions for
security and protection of human rights and freedoms of other individuals.
5.3. Beside on other grounds,
stipulated in the Constitution of the Republic of Azerbaijan, rights and
freedoms, provided for in the Para III of the Article 28, Articles 32, 33, 47,
49, 50, 51 and 58 of the Constitution of the Republic of Azerbaijan may be
subject to restrictions as are necessary in the interests of national security,
for the protection of health or morals, for the protection of rights and
freedoms of others, for the prevention of crime; rights and freedoms, provided
for in the Articles 32, 33, 47, 49, 50 and 58 of the Constitution of the Republic
of Azerbaijan – for the prevention of disorder or crime as well; rights and
freedoms, provided for in the Para III of the Article 28, Articles 47, 48, 49,
50 and 58 of the Constitution of the Republic of Azerbaijan – in the interests
of public safety as well; rights and freedoms, provided for in the Para III of
the Article 28, Articles 32, 33 and 48 of the Constitution of the Republic of
Azerbaijan – for the protection of public order as well; rights and freedoms,
provided for in the Articles 32 and 33 of the Constitution of the Republic of
Azerbaijan – in the interests of economic well-being of the country; rights and
freedoms, provided for in the Articles 47 and 50 of the Constitution of the
Republic of Azerbaijan – in the interests of territorial integrity, for the
protection of the reputation or rights of others, for preventing the disclosure
of information received in confidence, or for maintaining the authority and
impartiality of the judiciary as well; rights and freedoms, provided for in the
Article 48 of the Constitution of the Republic of Azerbaijan – in the interests
of public safety, for the protection of public order, for the protection of
health or morals, for the protection of the rights and freedoms of others as
well.
Article 6. Right to appeal to the Constitutional
Court of the Republic of Azerbaijan of individuals claiming to be a victim of a
violation by legislation, decisions of executive and judiciary, municipal acts
of his/her human rights and freedoms
Everyone claiming to be the victim
of a violation by legislation, decisions of executive and judiciary, municipal
acts set forth in the items 1-6 and 8 of the Para III of the Article 130 of the
Constitution of the republic of Azerbaijan, of his/her human rights and
freedoms may appeal respectively to the Constitutional Court of the Republic of
Azerbaijan.
Article 7. Right of judges to appeal to the Constitutional Court
Any
judge
may file the Constitutional Court of the Republic of Azerbaijan a request on
interpretation of the Constitution and the laws of the Republic of Azerbaijan
as regards the matters, concerning the implementation of human rights and
freedoms, in accordance with the procedure provided for by the laws of the
Republic of Azerbaijan
