In July 2009, the Azerbaijani authorities made amendments to the Azerbaijani NGO Law, which state that registration of foreign NGOs in Azerbaijan “is processed based on the agreement signed with the organisations”. It followed with the adoption of the new decree of 2011, with the aim to set criteria for concluding such agreements.
In its opinion, the European Commission for Democracy through Law (Venice Commission) comes to a conclusion that the 2009 amendments to the Azerbaijani NGO Law and the 2011 decree setting new requirements for foreign NGOs overturn the efforts to meet international standards and mentioned the registration of foreign NGOs among the most problematic aspects.
It particularly states that the requirement for the bilateral agreement between a foreign NGO and the national authorities is in itself questionable and the conditions set are rather problematic and unclear. The decree does not specify how the general terms “national and moral values” and “political and religious propaganda” are to be defined and what an NGO should do to “respect the people of Azerbaijan”. In the absence of any specification, as concluded by the Venice Commission, it is clear that a rejection of a registration based on one of these conditions could hardly be found compatible with Article 11 of the ECHR.
Absence of any specific time-frame is another problematic aspect where the Venice Commission holds that not concluding the process within the time-frame without substantive reasons would violate Article 11 of ECHR.
It concluded that conditioning “the views, activities and conduct of an NGO before allowing it to obtain the legal personality necessary for its operation, goes against the core of the values underlying the protection of civil and political rights. It clashes with the whole ideological framework underlying democracy such as pluralism, broadmindedness and tolerance”.
The opinion was adopted upon request of the Parliamentary Assembly of the Council of Europe (PACE), as a result of joint appeal of fifteen human rights organizations, including the Human Rights House Foundation (HRHF) and several partners of the Human Rights House Azerbaijan.
The Expert Council on NGO Law: the Decree is in breach of international standards
On 29 September 2011, the Expert Council on NGO Law of the Conference of INGOs (the Expert Council on NGO Law) presented its own opinion on the NGO Law in Azerbaijan, which was reflected in the opinion of the Venice Commission. The Expert Council on NGO Law stated that some requirements on the NGO agreement with the state set in the decree are overly broad and could entail restrictions that go beyond those admissible. Specifically, the requirement for respect for national and moral values or to not be involved in political propaganda can be subjectively interpreted and applied inconsistently with freedom of expression. Moreover, the decree does not provide any proper timeframe or clear process for reaching an agreement and for relevant state bodies to provide their feedback or to reach a conclusion, states the Expert Council on NGO Law.
As a result, the Expert Council concluded that the changes introduced by 2009 amendments and the supplementing decree of 2011 are in breach with international standards. In these circumstances, according to the Council, the application of requirement for an agreement to Human Rights House Azerbaijan without any legal foundation in domestic or international law ought to be seen as an unjustified attempt to stifle freedom of expression and to hinder the legitimate activities of human rights defenders.
Case of Human Rights House Azerbaijan mentioned
On 10 March 2011, as a result of mentioned amendments, the Ministry of Justice of the Republic of Azerbaijan ordered the immediate closure of the Human Rights House Azerbaijan, the international branch of HRHF, stating that it had not organized its activities in accordance with the legislation.
The Venice Commission mentioned the closure of HRHA as the case that followed in Azerbaijan due to new complicated and problematic requirements for foreign NGOs.
The Expert Council on NGO Law went further and stated that the action taken by the Ministry of Justice cannot be regarded as having an appropriate legal basis and the resulting interference with the activities of HRHA is contrary to international standards. It based the conclusion on the fact that the new provision did not provide that it applies to foreign NGOs already operating in Azerbaijan. Secondly, the Azerbaijani Law on NGOs provides that in respect of action by NGOs contrary to the NGO Law, the notification power provides a possibility of warning or an instruction to eliminate the violations and not to desist operation entirely.
Venice Commission ready to assist
In its opinion, the Venice Commission recalls that the way in which national legislation enshrines freedom of association and its practical application by the authorities reveal the state of democracy in the country. It invites the Azerbaijani authorities to take its own conclusions and the ones of the Expert Council on NGO Law into consideration and reiterates its readiness to assist the Azerbaijani authorities in matters concerning human rights.
Representative of the expert group from INGO Conference of Council of Europe is planning to visit Azerbaijan in November 2011 to meet with authorities and NGOs and to discuss how to implement the recommendations.