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Strasbourg, 29 June 2004
Opinion no. 283 / 2004
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CDL-AD(2004)025
Or. Engl.
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EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
Opinion
on THE LAW ON POLITICAL PARTIES
OF THE REPUBLIC OF AZERBAIJAN
Adopted by
the Venice Commission
at its 59th Plenary Session
(Venice, 18-19 June
2004)
on the basis of
comments by
Mr James HAMILTON
(Substitute member, Ireland)
Mr Hans-Heinrich VOGEL
(Substitute member, Sweden)
I. INTRODUCTION
1. The Authorities of the Republic of Azerbaijan
submitted to the Council of Europe for expertise the Law of the Republic of
Azerbaijan on Political Parties (CDL (2004) 43). The Ago group of the Committee
of Ministers of the Council of Europe alsorequested the Venice
Commission to give an opinion on this law.
2. The Commission appointed Messrs James
Hamilton and Hans-Heinrich Vogel as rapporteurs on this issue. The present
opinion was drafted on the basis of their comments (CDL (2004) 44 and 45), and
with regard to the “guidelines on legislation on political parties: some
specific items” (CDL-AD(2004)007rev, items 1., 2. and 3.), was adopted by the
Commission at its 59th Plenary Session (Venice,18-19 June 2004).
II. GENERAL
3.
The Law of the Republic of Azerbaijan on Political Parties is a
relatively clear and straightforward piece of legislation. It provides for
certain principles which should govern the establishment and functioning of
political parties, for the rights and duties of political parties and of the
state towards political parties, and for the suppression of particular parties
in particular circumstances. While there are some concerns, in general the law
seems to be an appropriate one.
III. DETAILED
OBSERVATIONS
4. “Political party” is defined as “an
association of citizens of the Republic of Azerbaijan pursuing
common political ideas and aims, and participating in the political life of the
country”. This is a clear and appropriate definition.
5. A general observation concerning Article 1
and related articles might be that the draft defines as “political
party” an association “of citizens of the Republic of Azerbaijan”, and among the
requirements for membership as stated in Article 8 there is the requirement
that members of political parties shall be “citizens of the Republic of Azerbaijan”. These provisions
seem to exclude both foreign citizens and stateless persons from membership in
political parties. However, as the VeniceCommission stated in its “Guidelines on legislation on political parties: Some
specific issues” (CDL-AD(2004)007rev) adopted at its 58th Plenary
Session (Venice,12-13 March 2004), general exclusion of foreign citizens and stateless persons
from membership in political parties is not justified. According to the
guidelines, “foreign citizens and stateless persons should to some extent be
permitted to participate in the political life of their country of residence,
at least as far as they can take part in elections. At the very least, the
country of residence should make membership in political parties possible for
these persons. In dealing with issues of the participation of foreign nationals
in the public life of their country of residence, the Member States are invited
to apply to the largest possible extent the provisions of the European
Convention on the Participation of Foreigners in Public Life at Local Level.
Additional measures further extending the guarantees provided for by the
provisions of this Convention would be most welcomed.”
6. Article 1 refers to political parties “taking
as a basis their functions and aims compatible with the constitution and the
laws…” and again in Article 4 there is a prohibition on the establishment and
functioning of political parties whose purpose “is to overthrow or change
forcibly the constitutional order of the Republic of Azerbaijan or to violate
its territorial integrity or … to perpetrate other acts contradictory to the
constitutional order…”
7. It is important to be clear that while in a
democracy it is permissible to ban or suppress organisations which use or
advocate violence, the European Court of Human Rights has consistently held
that Articles 10 and 11 of the European Convention of Human Rights permit
persons to advocate constitutional change and change in the institutions of
state, and even secession from a state, and to organise political parties for
this purpose. The Court has on many occasions made clear that the right to
freedom of expression includes the right to advocate ideas that offend, shock
or disturb. In particular the Court has also held that political parties are
entitled to campaign in favour of a change in the legislation or in the legal
or constitutional structures of the State subject to two conditions 1) that the
methods employed for this purpose must in all respects be legal and democratic
and 2) the change proposed must itself be compatible with fundamental
democratic principles (see Socialist
Party of Turkey (STP) and others v Turkey, No 26482/95, 12
November 2003, a case which concerned a ban on a political party advocating
self-determination for the Kurdhish minority. The Court held that the fact that
a particular political proposal was incompatible with the existing principles
and structures of the Turkish state did not mean it was contrary to democratic
principles. It was of the essence of democracy to permit the advocacy and
discussion of different political proposals, even those which would alter the
existing structures of a State (Judgment, §38 and 43). It
is not clear whether the Azerbaijani law is in compliance with these
principles; this clearly would depend on the meaning the courts of Azerbaijan gave to
perpetrating acts contradictory to the constitutional order or violating the
territorial integrity of the state.
8. Article 4 lays down other conditions for the
establishment of political parties. Generally these seem reasonable. A party is
to be established by a constituent congress or general meeting, which adopts
its constitution (described as its charter) and sets up the organs of the
party. The details of how the congress is to be organised or convened are not
prescribed, and the Venice Commission does not think it necessary to do so. For
registration, a party must reach a threshold of 1,000 members. This seems a
reasonable threshold in a country with a population of slightly less than 8
million.
9. Article 4 also contains a prohibition on the
establishment or functioning of foreign political parties as well as their
branches and subsidiaries. In itself this is not unreasonable but care would
need to be exercised to ensure that it is not abused in order to prevent the
establishment or functioning of political parties representing minority ethnic
or national groups.
10. Article 4 also states that “political parties
shall be constituted upon the territorial criterion”. The provision goes on to
prohibit “functioning of primary organisations, committees and other
organisational structures of political parties in the State bodies…” While
these provisions are not altogether clear It could be assumed that the
intention of the authors of the law is to require political parties to be
organised in some sort of geographically based branch structure rather than in
the workplace or in a vocational manner (for example, a lawyer’s branch, or a
university branch, or a schoolteacher’s branch). It is not clear what the
thinking behind such a provision is, other than perhaps to prevent political
parties from exercising covert influence in the workplace.
11. Article 5 provides for the manner in which
political parties are to carry out their activities. There are no problems with
this provision and it seems to be justified.
12. Article 6 requires every party to have a
constitution (described as a “charter”) and sets out in general terms what it
should contain. These provisions seem appropriate ones.
13. Article 7 requires that the name, abbreviator
of the name and party symbols should differ from those of other registered
parties. This provision is desirable in order to avoid confusion, particularly
at elections.
14. Article 8 refers to membership in political
parties. Its most noteworthy feature is the prohibition on certain office
holders being members of political parties. These include the President of the
Republic, the judiciary, the ombudsman, all military servicemen, the staff of
the prosecutor’s office, much of the civil service, the state-owned press
(except for technical and service staff), the leadership and creative staff of
the State Broadcasting Company, and religious figures.
15. Undoubtedly there is scope for argument about
the precise content of such a list. Any such rule necessarily trenches on the
rights of the person affected to take part in political life. There are, however,
offices where the necessity for impartiality is such that they could not
properly be filled by persons who at the same time played an active part in
politics. This is clearly the case for the judiciary and the ombudsman. With
regard to some of the others the situation is more problematic.
16. In the case of prosecutors Article 6 of the
Recommendation REC (2000) 19 of the Committee of Ministers of the Council of
Europe on the role of public prosecution in the criminal justice system
provides that states should take measures to ensure that public prosecutors
have an effective right to freedom of expression and assembly, have the right
to form and join lawful organisations and attend their meetings in a private
capacity. These rights can only be limited in so far as is prescribed by law
and necessary to preserve the legally established aims and powers of the public
prosecutor. Notwithstanding these provisions it seems to the Commission that a
strong case can be made for the prohibition of involvement in party political
activities by senior prosecutors, particularly those responsible for making
prosecutorial decisions. To permit such involvement risks compromising the
necessary impartiality and independence of the prosecutor. The considerations
apply with particular force in emerging democracies, in particular those with a
history of political interference in the prosecution of criminal offences. On
the whole, therefore, such prohibition can be justified, insofar as it relates
to senior decision-makers, although it may be questioned why it is necessary to
apply it to all the staff of the prosecutors office.
17. Similar considerations apply to the various
other categories of persons precluded from political activity. The inclusion of
servicemen is presumably designed both to discourage the armed forces from
intervention in politics and to protect the armed forces from party
factionalism and political interference. The inclusion of major elements of the
public service and in particular the security services may have a similar
justification. So far as state-owned media are concerned, if the State is to
play a role in the media it is desirable to limit the scope for political
advantage. On the other side, however, it may be objected that a ban on
membership of political parties may simply conceal the extent to which
supporters of a political party may exercise influence without necessarily
being paid-up members. Finally, the ban on membership by religious figures may
serve the interest of attempting to maintain a separation between church and
state, though whether it is likely to be effective in a society where religious
leaders have great influence may be doubted.
18. Articles 9, 10 and 11 deal with the rights of
members of political parties and the right of parties to join international
non-governmental organisations. These provisions seem appropriate.
19. Articles 12-16 deal with the relationship
between political parties and the State, and the only comment one could propose
to make concerns the provisions relating to registration of and liquidation of
political parties. Article 14 provides that State registration of a political
party shall be refused if its charter is inconsistent with the provisions of
Article 3, 4 or 5. Article 16 provides that if a party commits the acts
referred to in paragraph 4 of Article 4 it shall be liquidated by a court
decision. These two provisions therefore depend on the meaning which is to be
attached to violating territorial integrity or perpetrating acts contrary to
the constitutional order discussed in paragraphs 3 and 4 above and reinforce
the importance of those Articles.
20. There is a further procedure whereby a
political party may be liquidated which involves, firstly, the issue of a
warning by the Ministry of Justice to a party which “commits an act that
deviates from the aims and tasks determined in its charter or runs counter to
the existing legislation, followed by an application to court by the Ministry
to liquidate the party if it again commits the acts referred to (Articles 15.3,
16.2 and 16.3)”. While the necessity for a court decision on liquidation is to
be welcomed, the absence of any sanction other than liquidation poses a
problem, since the provisions in question appear capable of being invoked even
for minor breaches of the charter or legislation. It would be desirable to
provide for sanctions short of liquidation and to provide that liquidation was
to apply only in cases of serious and deliberate violation of the charter or
legislation where no other sanction was appropriate.
21. Articles 17 to 21 deal with the financing of
political parties. Parties are to be financed from their own resources,
donations, membership dues and so forth, without State subvention. Financing by
foreign States or foreign persons or bodies is forbidden. Donations may not be
made by State agencies, exclusively charitable or religious bodies, trade
unions, or mass movements. Parties may not own land, industrial enterprises,
nor engage in business or commerce.
22. There is a provision prohibiting political
parties from receiving donations granted with the purpose of gaining economical
or political benefit. While this is a worthy objective, there is no indication
how it is to be achieved. Parties are required to include the amounts of
donations and the names of donors in their financial accounts, but the
legislation does not provide that these be published. It would seem desirable
to consider other measures such as (a) putting an upper limit on the amount of
donations (b) making public the names of donors and amounts above a certain
level (c) prohibiting donors from receiving state contracts within a certain
period of the donation (d) applying severe sanctions for breach of the
legislation.
23. Trade unions are prohibited from making
donations. This might be regarded as discriminatory when there is no
corresponding limitation on employers or their organisations doing so. It is,
of course, open to argument that a trade union should not in effect require its
members to subsidise a party of which the members do not approve, but there are
mechanisms to prevent this happening which fall short of a total ban on trade
union donations. It might also be pointed out that donations by companies
similarly require the shareholders to subsidise a political party of which they
may not approve. There is something to be said for a law which would require
donations by a company to a political party to be approved by a resolution of
its shareholders.
24. Some countries do place restrictions on trade unions funding
political parties. For example, the United States, a member of the
International Labour Organisation
has had long-standing restrictions on the funding of political parties by trade
unions (although it has been possible to circumvent these restrictions whereby
trade unions could establish funds made up of voluntary individual
contributions).
Historically, the labour movement in the US has tended to provide financial
support to the Democratic Party. More recently, the Bipartisan Campaign Finance
Reform Act of 2002 has sought to ban large-scale donations to national
political parties and has placed a ceiling on individual donations.
25.
However, taking the United States as an example, it is significant that
US laws have applied equally to workers’ and employers’ representatives and
corporations i.e. there is no discrimination between them in terms of freedom
or otherwise to make political contributions, at least since the passing of the
Taft-Hartley Act of 1947 (the Tillman Act of 1907 had actually banned political
funding of parties by businesses and corporations, but its provisions could
also be circumvented and were largely ineffective). Both corporations and trade
unions are equally subject to restrictions under political finance laws.
26.
One of the main International Labour Organisation Conventions relating
to trade unions, the Freedom of Association and Protection of the Right to
Organise Convention of 1948,
does state in one of its primary provisions that:
“Workers
and employers, without distinction whatsoever, shall have the right to
establish and, subject only to the rule of the organisation concerned, to join
organisations of their own choosing without previous authorisation.”
27. Interpreted
broadly, the provision could be taken as authority that all acts of
discrimination as to the functioning of employer and employee representatives
are prohibited. On the one hand, the provision could be interpreted as relating
to joining organisations only. On the other hand, it could be argued that if
the prohibition on discrimination were to stop at the mere function or act of
joining, all kind of other discriminatory measures could be put in place that
would effectively put employees on a lesser footing than employers in terms of
collective representation. This broader view of the scope of the provision is
supported by the use of “without distinction whatsoever”.
IV. CONCLUSION
28. On the whole the law on political parties is
a good one and is not over-prescriptive. The major concern is whether the
conditions in Article 4 which require a party not to perpetrate acts contrary
to the constitutional order could be used to refuse recognition to or to
suppress a party which sought fundamental constitutional change by peaceful
means. A second concern is whether the provisions of the law relating to
corrupt donations to political parties are likely to be effective. Membership in political parties
could be an issue to be further considered (a possibility for non-nationals to
participate in the activities of political parties). Finally, the question
arises whether the provisions relating to donations discriminate against trade
unions by comparison with employers and their organisations.
