The International Human Rights Framework on the Right of Peaceful Assembly
Azerbaijan is a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Azerbaijan is also a state party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the state has violated their human rights as protected under the Covenant.
At regional level, Azerbaijan is a state party to the 1950 European Convention on Human Rights. Article 11 governs freedom of assembly and association:
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
The Domestic Legal Framework on the Right of Peaceful Assembly
Article 49 of the 1995 Constitution of the Republic of Azerbaijan (as amended) guarantees the right of peaceful assembly is by the Constitution:
Everyone has the right to meet.
Everyone has the right, having notified respective governmental bodies in advance, peacefully and without arms, meet with other people, organize meetings, demonstrations, processions, place pickets.
The right of peaceful assembly in Azerbaijan is governed by the 1998 Freedom of Assembly Act (as amended).
The Act provides that no restrictions may be placed on the freedom of assembly other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.
Under Article 5 of the Act, the local executive authorities must be notified in writing of the route of any march through the streets, and of the place and time of the assembly, in order to facilitate coordination and any necessary measures. Notification must be made at least five days in advance. A decision on the holding of the assembly is said to be sent to the organizers within three working days.
On 14 May 2013, amendments to the Code of Administrative Offences increased the penalties for “organising, holding and attending an unauthorised assembly” to 60 days’ detention.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
The Police Act of 1999 (as amended) governs the use of force by the Azerbaijan National Police, but does not generally require that police use no more than minimum necessary force that is proportionate to the threat or the harm to be avoided.
Article 14 of the 1998 Freedom of Assembly Act (as amended) the police are empowered :
1) to inform organizers and participants about the suspension of an assembly and its dispersal;
2) to order organizers and participants of an assembly to use all available means for suspension of an assembly and for participants to disperse;
3) to warn organizer and participants that a physical force or special means will be used against them in case of refusal to observe the order on suspension of an assembly and for participants to disperse;
4) to use physical force or special means in compliance with the legislation of the Republic of Azerbaijan for the suspension of an assembly and dispersal of its participants;
5) to detain individuals who refuse to follow the order on the suspension of an assembly and dispersal.
It is further specified that troops can be used for "maintaining, restoring public order and ensuring security of people during assemblies".
During dispersal of an assembly using force, the police and internal troops
can use handcuffs, shields, batons, water-jet, gases of special function, rubber bullets and other special means designed for these purposes.
VI. Physical force or specials means used by police officers shall be adequate to the danger occurred.
VII. Powers of bodies of police provided for in the legislation of the Republic of Azerbaijan are not limited to the present Law.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
Section 27 of the Police Act stipulates that firearms are to be used "exclusively for the prevention of an imminent danger".
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2016 Concluding Observations on Azerbaijan, the Human Rights Committee remained concerned
about restrictions on the exercise of the right to peaceful assembly in practice. While noting that legislation only requires advance notification of a peaceful assembly, it is concerned about reports that it frequently requires permission in practice. The Committee is further concerned about allegations of frequent use of excessive force and/or detention and about the imposition of administrative and criminal penalties against persons participating in planned or spontaneous peaceful protests, including protests of the Nida Youth Movement, the protest organized by the Popular Front Party on 17 September 2016 and other demonstrations ahead of the referendum of 26 September 2016. Finally, the Committee is concerned about the use of a variety of tactics to prevent and deter individuals from joining and participating in peaceful assemblies, including the practices of preventive detention and of “prophylactic conversations” on police premises aimed at intimidating activists and discouraging them from participating in assemblies....
The Human Rights Committee called on Azerbaijan to
revise its laws and practices with a view to ensuring that individuals fully enjoy their right to freedom of assembly and that any restrictions on the exercise of that right are in compliance with the strict requirements of article 21 of the Covenant. It should promptly and effectively investigate all cases of violence, excessive use of force by law enforcement officials, arbitrary arrest and detention of peaceful protesters and bring perpetrators to justice.
It further called on Azerbaijan to "end the practices of preventive detention of activists and “prophylactic conversations”, which are inconsistent with the State party’s obligations under articles 9, 19 and 21 of the Covenant."
A number of cases have been brought against Azerbaijan in the European Court of Human Rights alleging violations of the right of peaceful assembly.
Huseynli and others v. Azerbaijan (2016)
The case concerned administrative conviction and detention of opposition figures seeking to prevent their participation in a demonstration and punishing them for their political activity. The applicants, who were members of the main opposition parties or groups, had participated in demonstrations in 2011 and had been arrested and convicted a number of times as a result. They had intended to attend a demonstration scheduled for 2 April 2011 and one of the applicants was involved in its organisation. The municipal authority refused to allow the demonstration to be held at the place indicated by the organisers, and proposed that it be held at another location on the outskirts of Baku. The Ministry of Internal Affairs warned the public that attempts to hold a protest rally in central Baku would be prevented. Nevertheless, the organisers decided to hold the demonstration in central Baku, and information about it was disseminated via Facebook and the press. Two days before the scheduled demonstration, all three applicants were arrested, convicted of public-order offences and sentenced to seven days’ administrative detention. They appealed unsuccessfully.
The European Court cited various reports that the authorities had been resorting to seemingly arbitrary measures to quell support for the opposition and to prevent people from participating in demonstrations. These included pre-emptive and/or retaliatory arrests and convictions, police warnings not to attend a protest rally, closing down organisations working on human rights and democracy, or demolishing buildings where they were located.
The Court expressed doubt as to the credibility of the administrative proceedings against the applicants and found that the applicants’ conviction and ensuing detention were aimed at preventing them from participating in the demonstration and punishing them for having participated in opposition protests in general. Those measures, imposed in reliance on legal provisions which had no connection with their intended purpose, had amounted to an interference with the applicants’ right to freedom of peaceful assembly and could only be characterised as arbitrary and unlawful. They had had a chilling effect on the applicants and a serious potential to deter other opposition supporters and the public at large from attending demonstrations and, more generally, from participating in open political debate.
Views of Civil Society
According to Freedom House's 2019 report on Azerbaijan:
National law imposes tight restrictions on freedom of assembly, and under 2016 amendments, the right to free assembly is contingent on not violating “public order and morals.” Unsanctioned gatherings can draw a harsh police response and fines for participants.
In March 2018, in advance of a rally in Baku organized by several opposition parties to protest the early presidential election, six party members from the APFP were arrested and detained for between 15 and 20 days, and dozens of other activists were summoned for questioning. The APFP claimed that the pressure placed on party activists by the authorities was meant to discourage the event and intimidate its organizers.
After the attempted assassination in July of Elmar Valiyev, the mayor of Ganja, protesters gathered in support of the detained suspect and demanded an investigation into the mayor himself, who had been accused of corruption. The demonstration turned violent and two police officers were killed. Around 40 people were arrested at the protest, and mobile data service in the area was shut down to restrict the spread of information.