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Azerbaijan - Constitutional draft modifications are negative and “at odds with European constitutional heritage”

20/09/2016

Council of Europe, Strasbourg – Constitutional modifications proposed for vote in a referendum in Azerbaijan next Sunday 26 September 2016 are assessed negatively and “at odds with European constitutional heritage” by the Venice Commission in its Preliminary Opinion made public today.

The draft modifications concern 29 provisions of the Constitution and concern:
• a number of human rights provisions;
• additional powers of the President, his term of office and introduction of the figure of (appointed) Vice-President.

The opinion criticises the procedure of adoption of the reform, in particular the lack of clarity of the rules set in the Constitution for passing such modifications, the facts that the Parliament was not formally involved in the process, and that the time for public discussions about the reform was insufficient.

As to the modifications of human rights provisions, some of them are generally positive. In particular, the constitutionalisation of the principle of proportionality is welcome, although the proportionality should be checked against the state’s legitimate aims and not expected results. That being said, the proposed limitation clauses raise concerns as regards the freedoms of assembly, association and speech – all limitations in this sphere should be interpreted in the light of the principles derived from the ECtHR case-law.

As to institutional reform proposed, it weakens further the Parliament and even the judiciary, consolidating the already disproportionate power of the President and making the government even less accountable. The extension of the President’s mandate from five to seven years, his power to appoint Vice-Presidents and choose a date for early presidential elections are unprecedented in comparative perspective and have no justification in the context of Azerbaijan.

For the full text of the Preliminary Opinion please refer to the link below.

The opinion was requested by the Chair of the Bureau of the Parliamentary Assembly on 6 September 2016. Due to the very short time before the upcoming referendum, the Bureau of the Venice Commission authorised the preparation of a preliminary opinion, its transmission to the authorities and its publication prior to the plenary session (14-15 October 2016), where it will be endorsed (and become final).
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