CoE Venice Commission criticizes intended changes to Azeri constitution in referendum on 26.9.2016

A preliminary opinion by the Council of Europe’s constitutional law experts, (the Venice Commission) criticizes draft modifications to the constitution of Azerbaijan, which will be put to a national referendum on Monday 26 September. Many proposed amendments would severely upset the balance of power by giving “unprecedented” powers to the President (in this case Ilham Aliev), according to the Venice Commission opinion.

For example, the extension of the presidential mandate from five to seven years “cannot be justified” given the already very strong position of the President, who since 2009 can be re-elected without term limits.

Another reform gives the President power to dissolve parliament, which does not only make political dissent in parliament “largely ineffective”, according to the opinion, but also affects the independence of the judiciary, since parliament’s role in the approval of judges will be reduced.

The Venice Commission experts were “particularly worried” by the introduction of the figure of unelected Vice-Presidents, who may at some moment govern the country, and the President’s prerogative to declare early presidential elections at his convenience. There are many rumours in Baku that Ilham Aliev will install his wife as Vice President.

The opinion also criticizes the procedure of the referendum as having lacked proper debate in parliament and having been carried out too quickly and without real public discussion beforehand.

Indeed, due to time constraints, the Council of Europe opinion rapporteurs themselves were unable to visit Azerbaijan and did not benefit from direct consultations with the authorities, experts and other stakeholders. In this context, the Venice Commission regrets that the authorities of Azerbaijan did not consult it prior to submitting the draft to the referendum.

The experts praised proposed amendments in the human rights chapter of the Azeri constitution, such as the introduction of the concept of „human dignity“ and of the right to “conscientious treatment excluding arbitrariness” by state bodies and of certain procedural rights. They also praised the proposal to elevate the “principle of proportionality” to the constitutional level, which means that every restriction to human rights should be proportionate to the aim the state seeks to achieve.

However, the experts expressed reservations with other proposed changes in the human rights chapter, in particular one which provides for limitations to public gatherings for the sake of „public order“ and “morality”, since this provision risks to be too broadly interpreted. The opinion also is concerned about a proposed provision on withdrawing citizenship that “reduces the scope of the current guarantee” that prevents withdrawal of citizenship in absolute terms.

 

Russian Law on Constitutional Court incompatible with international obligations, says CoE Venice Commission

 An opinion adopted on 11.3.2016 by the Council of Europe’s constitutional law experts (the Venice Commission) determines that empowering the Russian Constitutional Court to declare international decisions, including judgments of the European Court of Human Rights, as “unenforceable” is incompatible with Russia’s international legal obligations.

Because such empowerment may result in preventing the execution of international decisions in any manner in the Russian Federation, the Russian Law on the Constitutional Court must be amended, according to the interim opinion (*)

Indeed, the inability of the Constitutional Court to remove contradictions between the Constitution and international decisions does not absolve the state from its obligation to enforce international decisions, according to the experts. It is a duty of all state bodies to reconcile provisions of the international treaties in force in Russia with the Constitution, for instance through interpretation or even modifying the Constitution.

“The Russian Federation should have recourse to dialogue, instead of resorting to unilateral measures,” the Venice Commission stressed, adding that dialogue has been an effective tool in several Council of Europe states for removing possible tensions between the European Court’s rulings and national systems.

The Venice Commission calls on the Russian Federation to do the following:

  • “Enforceability” should be replaced with “compatibility with the Russian Constitution of a measure of enforcement of an international decision”;
  • Delete articles according to which no measures will be taken to enforce an international decision declared by the Constitutional Court not to be in conformity with the Constitution;
  • The law should spell out the duty of the Russian authorities to find alternative measures for executing the international decision;
  • The Law should make clear that individual measures contained in the European Court’s judgments, such as payment of just satisfaction, may not be the object of an assessment of constitutionality;
  • Any proceedings involving the compatibility assessment should necessarily involve the individual who acted as applicant before the relevant international court or body.

(*) This opinion is an interim one, as the Russian authorities were not able to host meetings with the rapporteurs from December 2015 until March 2016. Should such meetings be organised, and should the Russian authorities present their arguments after March 2016, a final opinion reflecting these will be prepared at a later stage.

The full text of the adopted opinion will be published on the website of the Venice Commission on Tuesday 15 March 2016.

Remark: This EUFAJ blog has written already on 21.12.2015 about the mentioned Russian law; see  https://libertasblogs.wordpress.com/2015/12/21/is-russia-withdrawing-from-rule-of-law-principles/