Civil Society Dialogue in Azerbaijan

December 2017

Civil Participation in Decision-Making Processes in Azerbaijan

Legal Framework and Practice

This report has been prepared by a local expert at the request of the Council of Europe under the European Union and Council of Europe joint project “Civil Society Dialogue in Azerbaijan”. Launched in March 2016, the project aims to promote civil society dialogue in Azerbaijan through the improvement of the national NGO legislation and its practice in line with the European standards. Additionally, the project also aims to raise the capacities of relevant national authorities and local civil society organisations in order to bolster prospects for consultation and co-operation.

The purpose of this report is to describe the legal framework and practices relating to civil participation and good governance in Azerbaijan.

The report has been produced by Javid Gadirov, an external local expert selected by the Council of Europe. The information and views set out herein are those of the author and can in no way be taken to reflect the official opinion of the European Union or the Council of Europe. Neither the European Union nor the Council of Europe guarantee the accuracy of the data included in this report and they may not be held responsible for the use, which may be made of the information contained therein.

Table of Contents

1.       Introduction. 4

1.1.        Facilitating environment for civil society. 7

2.       Provision of information about decision making. 9

3.       Consultations with citizens and society. 13

3.1         Public discussions and hearings. 14

3.2         Consideration of citizen appeals. 15

3.3         Discussions of draft laws and regulations. 16

3.4         Written consultation. 18

3.5         Studying of public opinion and local opinion polls. 19

4.       Dialogue and active involvement 21

5.       Dialogue. 24

5.1         State grants. 24

5.2         State orders (purchases) of social services. 25

6.       Civil participation Practices. 26

7.       Recommendations. 30

1.   Introduction

1.            The purpose of this review is to provide an overview of laws and regulations of the Republic of Azerbaijan concerning civil participation in decision-making processes, evaluate them in the light of the requirements of Council of Europe’s requirements, and provide recommendations on their further development.

2.            Civil participation refers to “the engagement of individuals, NGOs and civil society at large in decision-making processes by public authorities” that is “distinct from political activities in terms of direct engagement with political parties and from lobbying in relation to business interests”^[1]. Council of Europe's Recommendation CM/Rec(2009)1^[2] of the Committee of Ministers defines citizen participation as "the involvement of citizens and groups of citizens in public affairs, such as interest groups, corporations, associations and non-profit organisations (NPOs), so that they can exert influence and improve the quality and acceptability of the results of democratic processes".

3.            Civil participation is a precondition of deliberative and participatory democracy, whereas it is expressed in the “Guidelines for civil participation in political decision-making” that “participatory democracy, based on the right to seek to determine or to influence the exercise of a public authority’s powers and responsibilities, contributes to representative and direct democracy and that the right to civil participation in political decision-making should be secured to individuals, non-governmental organisations (NGOs) and civil society at large”[3].

4.            Civil participation is furthermore enticed by the guarantees of the freedom of expression and freedom of association protected by the “Convention for the Protection of Human Rights and Fundamental Freedoms”, whereas a “guaranteed enjoyment of these rights is a precondition for the active participation of civil society in decision making at all levels of government.”^[4]

5.            According to “Guidelines for civil participation in political decision-making”:

“6. Civil participation should be guaranteed by appropriate, structured and transparent means including, where necessary, legal or regulatory measures which could include provisions for handling requests for recourse or redress in the event of non-compliance. Any limitations or restrictions to participation should be clearly defined in this framework and be in accordance with the Convention for the Protection of Human Rights and Fundamental Freedoms and the relevant case law of the European Court of Human Rights.”

6.            According to Recommendation CM/Rec(2007)14 of the Council of Europe Committee of Ministers^[5]:

“76. Governmental and quasi-governmental mechanisms at all levels should ensure the effective participation of NGOs without discrimination in dialogue and consultation on public policy objectives and decisions. Such participation should ensure the free expression of the diversity of people’s opinions as to the functioning of society. This participation and co-operation should be facilitated by ensuring appropriate disclosure or access to official information.

77. NGOs should be consulted during the drafting of primary and secondary legislation which affects their status, financing or spheres of operation.”

7.            Furthermore, Recommendation CM/Rec(2009)1 of the Committee of Ministers to member states “on electronic democracy (e-democracy)” recommends to member states "when introducing, implementing and reviewing e-democracy, ensure that it...provides opportunities for meaningful and effective public deliberation and participation in all stages of the democratic process, responsive to people’s needs and priorities"^[6].

8.            Recommendation CM/Rec (2001)19 of the Committee of Ministers to member states “on the participation of citizens in local public life” recommends to governments of member states to "frame a policy, involving local and – where applicable – regional authorities, designed to promote citizens' participation in local public life" and to "adopt...the measures within their power, in particular with a view to improving the legal framework for participation and ensuring that national legislation and regulations enable local and regional authorities to employ a wide range of participation instruments"^[7]. Moreover, Recommendation CM/Rec (2009)2 of the Committee of Ministers to member states “on the evaluation, auditing and monitoring of participation and participation policies at local and regional level” recommends to member states "to undertake or step up work to evaluate democratic participation and its impact at local and regional level" and supplies a "self-assessment tool for citizen participation at the local level"^[8].

9.            In 2009 Committee of Ministers of the Council of Europe adopted a declaration that “Calls on governments, parliaments, local and regional authorities in the member states to take due account of the Code of Good Practice on Civil Participation in the Decision-Making Process, when developing NGO participation in the decision-making process and when drawing up and implementing e-tools, capacity-building activities, structures and framework agreements for co-operation between NGOs and public authorities”.^[9]

10.        Both the “Guidelines for civil participation in political decision making” and the Code of Good Practice (that was developed by the Conference of INGOs)^[10], outline four major forms of civil participation. Lowest form includes the provision of information (Guidelines) or access to information (Code) about decision-making, which is a precondition for meaningful participation of civil society.

11.        A higher form is consultation, when public authorities ask NGOs for their opinion in the decision-making process, and that “may be carried out through various means and tools, such as meetings, public hearings, focus groups, surveys, questionnaires and digital tools.”[11]

12.        A yet higher form of participation, according to the Code, is dialogue that involves "two-way communication built on mutual interests and potentially shared objectives to ensure a regular exchange of views", and may encompass public hearings and specialized meetings. Guidelines characterise dialogue as “a structured, long-lasting and results-oriented process which is based on mutual interest in the exchange of opinions between public authorities, individuals, NGOs and civil society at large”.[12]

13.        Finally, highest form of participation is active involvement that involves “opportunities for civil participation in decision-making processes provided by public authorities to individuals, NGOs and civil society at large…”[13] Active involvement is called partnership in the Code, and involves “shared responsibilities in each step of the political decision-making process from agenda setting, drafting, decision and implementation of policy initiatives”, and may involve work groups or committees for joint decision making.

14.        According to joint OSCE/ODIHR and Venice Commission Guidelines, "associations should be able to participate in the development of law and policy at all levels, whether local, national, regional or international…", and moreover such "participation should be facilitated by the establishment of mechanisms that enable associations to engage in dialogue with, and to be consulted by, public authorities at various levels of government."^[14] In particular, "all consultations with associations should allow access to all relevant official information and sufficient time for a response, taking account of the need for the associations to first seek the views of their members and partners."^[15]

15.        OSCE/ODIHR Recommendations^[16] highlight that the right to civil participation is widely accepted in international and domestic settings, and indicate that:

“Participation in decision-making processes means that the public and civil society in particular, as well as other interested parties and stakeholders, should be able to contribute to the development of policies and legislation which affect or may affect them. Effective public participation and transparent processes of decision-making help improve the quality of policy and legislative decisions, enhance the potential for their successful implementation and ultimately serve to increase public trust in state institutions. A participatory democracy and an open and transparent public decision-making process should provide for effective and regular consultation and participation of associations in the development and review of policies and practices of public authorities as well as of laws and legislative amendments. In particular, open and transparent public decision-making processes should lead to the effective and genuine involvement of those associations of persons most directly affected by the policy and legislative decisions under consideration.”

16.        United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention)^[17], that is also ratified by Azerbaijan^[18], stipulates that state parties “shall strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment”^[19].

17.        Right to civil participation has a basis in the Constitution of Azerbaijan^[20]. Article 54.1 establishes the “right of citizens of the Republic of Azerbaijan to participate in the political and civic life without impediments”. Furthermore, Constitution provides for the freedom of association^[21], freedom of access to information^[22], freedom to access information about environment^[23], and judicial guarantee of fundamental rights^[24].

18.        Besides the Aarhus Convention mentioned above, Azerbaijan is a party to the International Covenant on Civil and Political Rights,[25] and, as a member of the Council of Europe, also to the Convention for the Protection of Human Rights and Fundamental Freedoms[26].

19.        According to the Constitution, international agreements “constitute an integral part of legislative system of the Azerbaijan Republic”.^[27] Moreover, the Constitution provides that in a case of conflict between Azerbaijani laws and regulations on the one hand, and the international agreements to which Azerbaijan is a party on the other, the provisions of international agreements prevail. The exception to this rule is the Constitution itself and acts accepted by way of a referendum.^[28]

1.1.   Facilitating environment for civil society

20.        Importance of civil society, in particular of NGOs, to the task of overcoming the estrangement of authorities and citizens is stressed in the Recommendation CM/Rec(2007)14, that emphasises

“…the essential contribution made by non-governmental organisations (NGOs) to the development and realisation of democracy and human rights, in particular through the promotion of public awareness, participation in public life and securing the transparency and accountability of public authorities, and of the equally important contribution of NGOs to the cultural life and social well-being of democratic societies.”

21.        “Guidelines for civil participation in political decision making” list the following three preconditions that enable civil participation[29]:

“a. respect for human rights and fundamental freedoms, the rule of law, adherence to fundamental democratic principles, political commitment, clear procedures, shared spaces for dialogue and good conditions overall for a vital, pluralistic and sustainable civil society;

b. creation and maintenance of an enabling environment by member States, comprising a political framework, a legal framework (where appropriate), and a practical framework, guaranteeing individuals, NGOs and civil society at large effective rights of freedom of association, freedom of assembly, freedom of expression and freedom of information;

c. recognition and protection of and support for the role of civil society in a pluralist democracy, its functions in terms of advocacy and monitoring of public affairs and its contribution to building a diverse and vibrant society.”

22.        The enabling legal environment that ensures independent and robust civil society, which has sufficient means for scrutinise and contribute to government decision making and implementation, is therefore a necessary, if not a sufficient, condition for an effective civil participation.

23.        In this regard, it should be mentioned that the recent report on “Bringing the law and practice relating to NGOs in the Republic of Azerbaijan into compliance with European standards”^[30] highlights a number of outstanding issues with regard to legal environment for NGOs. The report emphasises issues relating to scope of activities of NGOs, restrictions on establishment, registration, obstacles to the functioning, restrictions on and controls of the sources of finance, reporting requirements, intrusive supervision, suspension, liquidation and other forms of responsibility, including heavy penalties, that taken together may well cripple this important prerequisite for civil participation.

24.        This review will consider legislation and regulations of the Republic of Azerbaijan according to three of the four forms of civil participation mentioned in in the “Guidelines for civil participation in political decision making” and the Code of Good Practice developed by Conference of INGOs.

2.   Provision of information about decision making

25.        Without provision of access to information about decision making, there is little room for participation of civil society. According to “Guidelines”:

“20. At all stages of decision making, all appropriate information should be presented in clear and easily understandable language and in an appropriate and accessible format, without undue administrative obstacles and, in principle, free of charge, in accordance with open data principles.

21. Public authorities should provide the widest possible access, both offline and online, to key documents and information without restrictions on analysis and re-use of such information.”

26.        It should be mentioned that the European Convention on Human Rights embraces the “freedom to hold opinions and to receive and impart information and ideas without interference by public authority”.^[31] In a landmark decision the European Court on Human Rights held that the duty of authorities to disclose information of public interest to public “watchdogs” falls within the scope of the Article 10 of the Convention.^[32]

27.        Constitution of Azerbaijan provides for the right to “seek, receive, transmit, prepare, and disseminate” information.^[33] On the other hand, constitution prohibits, except when provided for by law, “following, video and photo recording, sound recording and other similar actions without one’s knowledge or despite one’s protest”^[34]. Another constitutional provision relevant to adoption of laws is that sessions of the Parliament (Milli Majlis) are conducted openly, unless a closed session is requested by a qualified majority of 83 deputies, or upon a suggestion of the President of the Republic.^[35] With regard to adoption of the laws and procedure of hearings, the Constitution and the Internal Charter of Milli Majlis (adopted by a law), regulate them^[36].

28.        When Milli Majlis holds an open session (meeting) then “representatives of the mass media registered in the Milli Majlis are allowed to take seats allocated to them.”^[37] Furthermore, according to law, the minutes and transcripts of Milli Majlis sessions must be “periodically officially published” upon being signed by the chairman^[38].

29.        The Internal Charter does not oblige to publish draft bills or proposed editorial changes that may happen during consideration by parliamentary commissions^[39] or during three possible hearings^[40]. Milli Majlis however has a discretionary power “to publish and present for a public discussion a bill adopted at a first reading”^[41].

30.        In 2010, the Parliament adopted a constitutional law “on normative legal acts” that also regulates the legal status and hierarchy of decisions and regulations by various authorities.^[42] The law distinguishes normative acts, acts that have normative character, and non-normative legal acts, all with different publicity regimes. Normative acts are those containing “generally binding rules of conduct for an indefinite set of persons and envisaged for a repeated application”^[43], while non-normative legal acts are “adopted for the purpose of implementing specific (one-time) organizational, control or administrative measures, or calculated for other one-time application”^[44].

31.        Normative acts include, in the following hierarchy^[45], the Constitution, acts adopted by referendum international treaties ratified by Azerbaijan laws, decrees of the President, decisions of the Cabinet of Ministers, acts of the central and local executive powers.

32.        Acts that have ‘normative character’ include decisions of the Constitutional Court; decisions, instructions and interpretations of the Central Election Commission; decisions of the Central Bank; decisions of the Judicial-Legal Council; decisions of the National Council of Television and Radio; decisions of the local self-government bodies (municipalities) and local executive authorities^[46]. The difference between these, and the category of “normative acts”, is that “acts that have normative character” cannot establish responsibility for their non-performance^[47].

33.        Non-normative legal acts include ordinances of the Milli Majlis, ordinances of President, ordinances of the Cabinet of Ministers, acts of bodies that perform state registration of civil status, and other acts that conform to the definition quoted above^[48].

34.        The law does not establish a duty of norm-making bodies to publish drafts of their decision, nor their agendas. Article 9 of the law provides a general principle of “publicity in the activities of norm-making bodies” which may be achieved by “informing individuals and legal entities about the activities of norm-making bodies and the normative legal acts they adopt”; “publication of normative legal acts in official publications, other mass media or bringing them to the public in other ways”; and by “placement of drafts of normative legal acts on Internet information resources of norm-making bodies”. The law does not, however, provide for an at least qualified positive duty to do so.

35.        The law also provides for publicity in the planning activities in the preparation of draft normative legal acts, mentioning that “plans for the preparation of drafts of state programs and of normative legal acts are approved and published in the manner prescribed for acts of the norm-making bodies that approve them”, and that “approved plans for the preparation of draft state programs and normative legal acts are sent to the appropriate authorities for information”^[49]. Once again, there is no positive duty to publish all such programs as a general rule, neither there are requirements as to how detailed should the published information be, nor any timeframes for doing so.

36.        According to law, preparation of draft normative legal acts “may include”:

·         consideration of the norm-making proposal and the adoption of a decision on the preparation of the draft;

·         organizational, technical and financial support for its preparation;

·         collection of necessary materials and information;

·         development of the project concept;

·         drafting of the project text;

·         project coordination;

·         carrying out legal, linguistic, financial and other necessary examinations.^[50]

37.        The law does not envisage possibility or duty to publish or consult projects of decisions or normative regulations and laws. Official publication of an adopted law, presidential or governmental decree must take place “within 72 hours” of adoption, while other normative legal acts must be included in the state registry of legal acts and the published within 5 days of their receipt by the state registry^[51]. Unofficial publications may only follow the official publication, with a note “extract” and mentioning the source of official publication, as well as the number and date of issue of a license for the dissemination of legal information, if such activity is subject to licensing^[52].

38.        The law “on receiving information”^[53] provides for an obligation to publish draft normative legal acts “from the time of submission for coordination and approval” (which is optional according to law on legal acts) and any normative acts from the moment of their approval^[54]. Moreover, laws, orders and ordinances of state bodies and municipalities must be published from the day they enter into force^[55]. Draft conceptions of state and public importance, development programs and drafts must also be published, but there is no deadline indicated for these^[56].

39.        Besides classified information, two broad categories of information are withheld from the duty to publication and from information requests, including official information and private information.

40.        Official information includes:

·         “information collected in a criminal case or administrative offense - before filing a case in court or before making a decision on the enforcement of the sentence in the case”;

·         “information collected in the process of state supervision - before a decision on this matter is taken”;

·         “information whose premature dissemination creates obstacles or may impede the formation, development and successful completion of public policy - until agreement on the completion of the process”;

·         “information whose premature distribution creates or may pose a serious threat to the usefulness of a financial testing or inspection by government authorities - until the end of the financial testing and inspection”;

·         “information whose premature dissemination violates or may disrupt the exchange of opinions, meetings in government bodies - before a final decision is taken”;

·         “information whose premature distribution may adversely affect the implementation of economic, financial, credit or financial policies of public authorities until the completion of specific economic, financial, credit or financial procedures”;

·         “information that hinders or may impede the implementation of a fair judicial decision - pending a court decision”;

·         “documents received from foreign states or international organizations - prior to the adoption of a bilateral agreement on the promulgation of the document”;

·         “information that creates the danger of harm to the environment, the components of the environment or can cause such harm - until the causes that created the danger are eliminated”;

·         “information on technical solutions, if the disclosure harms the lawful interests of the information owner, or if the service of using information services is stipulated in the contract concluded with legal persons that perform public functions”;

·         “orders, ordinances, and draft resolutions of” state bodies, and municipalities, as well as of “legal persons (including legal persons of public law) performing public functions, as well as private legal and natural persons working on the basis of legal acts or contract in the fields of education, health, culture and social sphere” until such “orders, ordinances, or resolutions are submitted for adoption”.

·          “acts and corresponding documents on the performance of public duties” of legal entities that dominate the market, have special, exclusive rights or are monopolies with regard to the goods, the conditions for the sale of goods and prices, changes in these conditions and prices” before the adoption or signing of these acts;

·         “acts and corresponding documents on the performance of public duties” of “non-commercial organizations, extra budgetary funds, including state-owned commercial associations” that are “wholly or partly owned by the state or dependent on the state” with regard to “information on funds or property allocated from the budget”, before the adoption or signing of these acts.^[57]

41.        The law provides that such information may only be considered as official if “the harm that may be caused by the dissemination of information exceeds the public interest in this information”.^[58] Private information includes information concerning personal and family life, and with certain narrow exceptions must be withheld and considered as being for official use only. Private information comprises:

·         “information reflecting political views, except lawfully registered information about party affiliation of private legal entities, religious affiliation, beliefs and worldview”;

·         “information on ethnic origin or race”;

·         “information gathered in the course of effecting a criminal case or of other offenses – until an open court hearing, or court decision with regard to an offense, or in cases where protection of personal and family life is required, when required in the interests of minors, victims or refugees, or the integrity of administration of justice”;

·         “information about a criminal record of the person”;

·         “information on the state of health”;

·         “private characteristics of persons, abilities and information about other traits of character”;

·         “information on social assistance and applications for the provision of social services”;

·         “information about mental and physical problems”;

·         “information about the commission of domestic violence against a person”;

·         “information on taxes levied, except tax debts”;

·         “information about financial transactions”;

·         “information about sexual life”;

·         “information on registration of civil status”;

·         “information about various events of family life”;

·         “information about adoption”[59].

42.        These categories provide ample grounds for excluding information, and explicitly mention possibility of excluding drafts of decisions as well as of any information pertaining to it (if it’s “premature disclosure” may be harmful to broadly defined interests of states). Together with the lack of positive obligation to disclose drafts of decisions and regulations, civil society is essentially left to the good will of government officials that may disclose information about decisions and regulations in the amounts and parts and at times they please, or, as frequently is the case, fait accompli.

3.   Consultations with citizens and society

43.        “Guidelines” instruct that:

22. Consultation allows public authorities to collect the views of individuals, NGOs and civil society at large on a specific policy or topic as part of an official procedure.

23. Consultation may be carried out through various means and tools, such as meetings, public hearings, focus groups, surveys, questionnaires and digital tools.

24. Public authorities should provide publicly available feedback on the outcome of consultations, particularly information giving reasons for any decisions finally taken.

44.        Azerbaijani law provides for possibilities of consultations with citizens and civil society, however typically such consultations are up to the government authorities that may choose not to conduct them. On the other hand, law “on civic participation” establishes detailed requirements to various types of consultations, prescribing a framework that in effect may limit flexibility and vigour in conducting them.

45.        The law “on public participation”^[60] envisions several types of consultations, including public discussions and public discussions of draft laws, public hearings, studying of public opinion, and written consultations^[61]. Furthermore, there is a decision of Cabinet of Ministers on “rules for conducting public discussions and public hearings of draft legal acts prepared by central and local executive bodies and local self-government bodies”^[62].

3.1  Public discussions and hearings

46.        Public discussion is defined as “a meeting organized with the participation of authorized representatives of relevant state bodies and local self-government bodies, representatives of civil society institutions, individuals, professionals and experts to prepare proposals from various sectors of society on relevant issues during decision-making of public significance”; and public hearing as “a meeting organized with the participation of authorized representatives of relevant state bodies and local self-government bodies, representatives of civil society institutions, individuals, specialists and experts for conducting public consultations and informing citizens about draft legal acts, certain issues of state and public life”^[63].

47.        There is no obligation on behalf of the government to conduct public discussions or hearings. State bodies and local self-government bodies, civil society institutions, public councils and individual citizens may initiate hearings or discussions^[64]. In the organisation of a public hearing and discussion the “precise definition of the purpose and topic” must be ensured, interested parties must be informed about the purpose and the topic of the discussion, “experts and specialists” must be involved, an “independent and extensive analysis of the problem” ensured, and “when necessary, alternative drafts and proposals” submitted. Participation “of authorized representatives of state bodies and local self-government bodies, relevant to the topic of the hearing and discussion” must be secured^[65].

48.        Organiser of a public discussion or hearing clarifies and approves its topic, determines the themes of main reports and speakers, prepares a draft agenda, determines its place, time and duration, determines the principles of selection and the form of invitation of participants, and invites them. Organiser, furthermore, prepares explanatory information for the media and the public and places such information at a publicly available place. Organiser also prepares the initial draft of the final documents of the hearing and discussion. Announcement of public hearings and public discussions must also be posted on the initiator's website or in the media at least 7 working days prior to the event with the indication of the exact time and venue^[66].

49.        Public discussions and hearings are concluded by a final document. When a civil society institution^[67] conducts a hearing or discussion, such document takes a form of “main opinions, opinions and proposals made during the hearing” or “conclusions and proposals of the public discussion”, signed by the chairperson of the discussion or hearing, and within 3 days submitted “to the relevant state bodies, local authorities and the mass media”^[68].

50.        Central and local executive authorities must consider final documents of discussions and hearings in accordance with the law “on citizen appeals”^[69].

3.2  Consideration of citizen appeals

51.        According to the law “on citizen appeals” any citizen has a right to appeal to state and municipal bodies, and to legal entities owned by state or municipality, in written or oral form^[70]. These appeals have different procedure from appeals to Ombudsman or information requests, and may not be anonymous^[71].

52.        Written appeals must contain the name of the entity considering the appeal or the name, surname, patronymic, position of its official (with the exception of appeals sent to the e-mail of the official); name, surname, patronymic and address of the individual (or place of work), name and legal address of the legal entity; if the application is submitted through the representative, name, surname, patronymic and address of the representative. Written appeals must have a signature and date, and if a written request is submitted through a representative, a copy of the document confirming the representative's authority must be enclosed. An electronic appeal is sent to the e-mail address of the entity or its official considering the appeal, or may be posted on its official website. In an appeal posted on the official website of the entity considering the appeal, the e-mail address or ordinary mail of citizens must be indicated. An application submitted in the form of an electronic document must be confirmed by an electronic signature^[72].

53.        Citizen appeals are given the date of receipt and registration number. At the request of the person who applied, he or she must be informed of the registration number, and date of its execution. When an informed (founded) reply is provided, the application is deemed as considered. Electronic appeals are considered by replying to the email indicated by the applicant, and if no email is indicated, by replying to postal address. The replies are provided in Azerbaijani^[73].

54.        The reply must indicate the consideration of the issues indicated in the appeal and the measures taken or the subject to be contacted in connection with the said issues. If a decision is made to leave the appeal without consideration, to its partial satisfaction or refusal, the reply letter sets out the procedure for appealing against the decision. If the subject considering the appeal makes requests for further information, the request must be answered within 7 working days. If the resolution of the issues stated in the appeal does not fall within their competence, the subjects considering the appeal forward the appeal to the relevant instance within 3 working days and inform the applicant accordingly. If the question specified in the appeal refers to the competencies of several entities, a copy of the appeal is sent to the said entities no later than 3 working days. In such cases the subject that considers the appeal must communicate the reply to the applicant^[74].

55.        In general, citizen appeals must be considered within 30 days (less in certain cases), and as a rule this period may be extended for maximum of additional 30 days[75].

56.        If the information indicated in the appeal is classified or restricted, the applicant must be informed that it is not possible to consider the appeal in substance^[76]. In cases where appeals are not considered (e.g. anonymous, not signed, without electronic signature) the applicant must be informed within 5 working days of the decision with indication of applicable reasons^[77].

3.3     Discussions of draft laws and regulations

57.        Public discussion of draft legal acts is defined as “research, analysis and evaluation of draft legal acts with the participation of persons who took part in their preparation, as well as civil society institutions, individuals, experts and specialists.”^[78]Discussions and hearings on draft laws are organised by the apparatus of the Milli Majlis^[79], while discussions and hearings on drafts of other legal acts are  “are conducted in accordance with the procedure established by the [Cabinet of Ministers].”^[80] In both cases, the law does not specify in which cases Milli Majlis Apparatus or executive authorities should hold hearings or discussions.

58.        Milli Majlis, “with a view to organizing public hearings and public discussions on draft laws” allocates a section on the website of the Milli Majlis; publishes all draft laws registered with the Apparatus of Milli Majlis on this section within 3 days after sending them to the relevant committee; also publishes information on the entity that submitted the draft law, the registration number of the draft, the committee (committees) to which it was sent, the schedule and venue for public hearings and the deadlines, the rules for conducting public discussions, the procedure for submitting opinions, comments and proposals, the time limits of their consideration and publication of results; “informs the public about the results of taking into account the conclusions, comments and proposals submitted in connection with the draft laws”; and publishes the updated text of the draft law after the first and second readings ^[81]. The law finally indicates that “the procedure for holding public hearings on draft laws is established by the Internal Charter of the Milli Majlis”^[82], which as of now does not elaborate on this procedure.

59.        With regard to publishing draft law after their registration by Milli Majlis Apparatus, all draft laws must be registered by the Apparatus, and the Speaker of Milli Majlis sends the drafts to the “relevant standing commissions” and sets the deadline for their consideration^[83]. The draft laws may be considered^[84] and adopted^[85] in the first reading. The Charter mentions “Milli Majlis may decide to publish and pass for public discussion a bill adopted on first reading”^[86]. At the same time bills or draft decisions submitted by the President of the Republic, the Supreme Court, the Prosecutor-General's Office and the Supreme Majlis of the Autonomous Republic of Nakhchivan should be put to the vote as presented, and any changes to such draft laws and draft decisions may be made only with the consent of these bodies^[87].

60.        The website of the Milli Majlis does publish draft bills on its website,^[88] and provides the online form for submitting comments under each draft. The commenter must enter name, email address and subject, as well as pass a simple CAPTCHA. At the same time comments already made are not published. In the past some draft laws, particularly those submitted by the President towards the end of the Milli Majlis sessions and adopted on first hearing, were only published once adopted and signed into law.

61.        In 2014 Cabinet of Ministers adopted rules of conducting public hearings and public discussions of draft legal acts prepared by local and central executive authorities and local self-government bodies^[89]. Public discussions and hearings on acts of local and central executive authorities are organized by their “relevant structural units”^[90], and in cases of local self-government (municipality), then by the chairman of municipality^[91]. The initiators may be local and central executive bodies or municipalities, civil society institutions, public councils or individuals,^[92] but there is no obligation on organizers to launch a discussion or hearing provided.

62.        Public hearings and discussions are conducted with participation of “authorized representatives of relevant authorities”, civil society institutions, individuals, specialists and experts^[93]. However, public discussions and hearings organized by municipalities, are conducted with participation of only residents of a given municipality and civil society institutions functioning on its territory^[94].

63.        Central and local executive bodies should create a dedicated section on their official websites for public discussions and hearings of legal acts, and publish the draft legal acts there from the moment they are sent for co-ordination (confirmation)^[95]. Village and settlement municipalities may place draft normative acts on a public board in a place accessible to everyone. The drafts should remain available on the information resource for 60 days, or when the decision is to be adopted within less than 3 months’ timeframe, then for at least 10 days^[96].

64.        Together with the draft legal act the following information must be available: time and length of public discussion and hearing, rules for submitting opinions, comments and suggestions, time limits for considering them and publishing the results^[97]. Opinions, comments, and suggestions made by civil society institutions, individuals, experts and specialists must also be placed on the information resource and made publicly available^[98]. If the draft is modified following the suggestions, comments or opinions presented, the updated draft must also be published^[99]. The information of internet page, place of the gathering, time of public discussion or hearing must also be notified to authorized representatives of relevant state authorities^[100]. If the discussion or hearing takes form of a gathering, then authorized representatives of relevant state authorities or municipalities, experts, and specialists are invited by an official invitation letter^[101].

65.        To be adopted, the suggestions, opinions and comments made in the course of public discussions and hearings must not be “unfounded”,^[102] and are considered if they are economically, financially and ecologically expedient, and also if they conform^[103] to the following requirements:

·         not contradict to laws that have superior legal force;

·         compliance with the Constitution the priority of laws;

·         conformity of acts of lower state bodies to acts of higher state bodies;

·         priority of universally recognized principles and norms of international law;

·         proportionality;

·         responsibility of state bodies to citizens;

·         democratic and transparent rulemaking;

·         consistency of normative legal acts;

·         protection of human rights and freedoms, and of legitimate interests of individuals and social justice;

·         systematic and integral legal regulation of public relations^[104];

·         opinions, comments, and suggestions may not create factors for abuse in the legal act^[105];

·         opinions, comments, and suggestions may not protect the interests of certain interest group^[106];

·         opinions, comments, and suggestions must be relevant to the regulated field^[107];

·         opinions, comments, and suggestions that are completely reflected in existing legislation are inadmissible^[108].

66.        Moreover, municipalities may not submit to public discussions or hearings “issues that are not within the competence of municipalities according to the legislation and the Constitution of the Republic of Azerbaijan”, secession of municipality from rayon and city administrative areas, declaring autonomy, projects aiming to change borders of municipalities established by the state^[109].

3.4     Written consultation

67.        Law on “public participation” provides for possibility of written consultations, that are understood as “a recourse by central and local executive and local self-government authorities to civil society institutions with the purpose of studying its opinion with regard to draft legal acts, and analysis, summarizing and evaluating opinions, comments and suggestions submitted in writing.”^[110] Information on commencing a written participation is published at the Internet resources of authorities or in the media^[111]. At the same time, drafts and structural elements of legal acts that contain information restricted according to law “on receiving information” are not published for written consultation^[112].

68.        Central and local executive and local self-government bodies provide at least 7 working days for civil society institutions to provide their opinions, comments and suggestions on the draft legal acts that they are preparing^[113]. Central and local executive and local self-government bodies after having discussed and evaluated opinions, comments and suggestions that they received, within 14 days make a founded decision on their consideration or rejection and publish this decision.^[114]

3.5     Studying of public opinion and local opinion polls

69.        Law “on public participation” mentions “studying public opinion” as a form of public participation,^[115] and counts it among the rights of public councils^[116]. Such study is defined as “the holding of sociological surveys and other similar events with the purpose of studying the opinions of various sections of society on certain issues of state and public life”^[117].

70.        Azerbaijani legislation also establishes a separate institution of local opinion polls in a special law^[118]. A local opinion poll is defined as the “study of the opinions of citizens who reside in the municipal territory on matters of local importance”.^[119] The Electoral Code does not cover conduct of local opinion polls. Their outcomes are legally binding only if a municipality adopts a decision based on the results of such a poll.^[120] Activities related to the preparation and conducting of the local opinion polls are funded from municipal budgets.^[121]

71.        While the range of questions that can be put to opinion polls is limited, it includes issues of local importance that are within jurisdiction of municipalities.^[122] There are several categories of information that are expressly forbidden on opinion polls, such as questions outside of jurisdiction of municipalities, questions aiming to remove municipality from the rayon or city administrative-territorial structure, declarations of autonomy, changes in municipal boundaries established by the state, restrictions on human and citizen rights and freedoms, and causing damage to the historical, cultural monuments and nature reserves.^[123] Local opinion polls cannot be conducted during and for three months after announcements of martial law and emergencies.^[124]

72.        Local opinion polls can be initiated by the municipal authorities or by citizens residing on the territory of a municipality. The right to appoint a local opinion poll belongs to the municipalities. The decision to conduct an opinion poll must indicate the date of the poll, the question that will be put on the poll, and establish the procedure for financing, among other issues. The decision is published in the local media within three days and sent to the Ministry of Justice.^[125] Ministry of Justice can appeal to the court a municipality’s decision to hold a local opinion poll. Courts should deal with such appeals within three days and make a final decision.^[126]

73.        For citizens to initiate a poll, they must collect the signatures in support of the question being put to a poll from at least 10% of citizens who reside in the territory of municipality and who have the right to vote.^[127] Prior to doing so, at least 15 people living in the municipal area and who have the right to participate in a poll must create an “initiative group.” To form the initiative group, citizens must hold a meeting and consider the following issues:

·         the establishment of an initiative group;

·         the questions to be put on the opinion poll;

·         appointment of an authorized representative; and

·         registering the initiative group with the territorial commission on local opinion polls.

74.        Initiative group should formulate the question for local opinion poll with sufficient precision so that it can be answered unequivocally.^[128] During the voting, citizens will be checking “pro” or “against” options to the question put on the ballot.^[129]

75.        Following the start-up meeting, the initiative group should make a written request to the territorial commission on local opinion polls, together with minutes of the start-up meeting. The municipality’s territorial commission on local opinion polls must make a decision on whether to register the group and issue a certificate of registration within 5 days of submission of signature sheets. A refusal to register can be appealed to the court, which makes a final decision within 3 days.^[130]

76.        Local opinion polls are prepared and conducted by the territorial commission on opinion polls and district commissions on local opinion polls (that are formed by the territorial commission)^[131]. After the poll has been conducted, the territorial commission on opinion polls summarizes all information based on protocols of district commissions and, within two days of the poll, determines the outcomes of the vote and adopts a corresponding decision. The decision can be contested in the courts^[132].  The commission may also hold poll invalid if is during the poll “a violation of the law that has had a major impact on its results” took place. In the latter scenario, a repeat poll shall be held within three months by a decision of the territorial commission on local opinion polls^[133].

4.   Dialogue and active involvement

77.        According to “Guidelines”:

26. Public authorities, NGOs and civil society at large may consider establishing different platforms as a permanent space for dialogue and participation. Such platforms may include regular public hearings, public forums, advisory councils or similar structures….

27. Active involvement … may include working groups or committees for the co-development of documents as well as of policies and laws ultimately requiring a decision by the appropriate public authority.

28. Where joint working groups or committees exist, public authorities should adopt transparent criteria and processes for the representation of individuals, NGOs and civil society at large.

29. Various types of partnerships involving public authorities, NGOs and representatives of civil society may be suitable at different stages of the decision-making process and may include partnerships relating to the implementation of decisions.

78.        Permanent consultative institutions (public committees and councils) that enhance participation of civil society in various activities of the authorities existed in Azerbaijan before the law “on public participation”^[134]. The current law provides detailed regulation on how such public councils should be established and function, but at the same time does not create any obligations on behalf of authorities towards such councils or to establish such councils. Public councils are defined as “advisory structures created by the central and local executive authorities and local self-governments”^[135].

79.        Public councils consist of 5 to 15 members elected by civil society institutions (that include according to law besides NGOs also mass media outlets, trade unions, citizen initiative groups and district committees of municipalities). Any person older than 16 and having legal capacity may become a member of a public council. According to Rules “on electing public councils by civil society institutions” adopted by Cabinet of Ministers, Electoral Commissions are established, that consist of 9 members (5 members representing civil society institution, and 4 representing the executive or self-government authority), and are charged with conducting elections to public councils^[136].

80.        Candidates for public councils must be of “high moral and ethical qualities” and must possess “knowledge and experience in the area relevant to the authority” by which the council is created and have legal capacity^[137]. As evidence of such “experience or knowledge” candidates must submit a document, such as “copy of employment record, or other documents confirming such information”^[138]. The requirement of knowledge and experience is not provided for in the law “on public participation”, and not only renders useless the 16-year old and legal capacity thresholds, but also gives the electoral commission wide discretion to reject candidates. Furthermore, staff of the executive or self-government authority may not become a member of a public council created under its auspices,^[139] and one civil society institution may only nominate one member to a public council^[140]. If a candidate does not conform to these requirements, the candidacy may be rejected and reasoned notification must be sent or delivered to the candidate^[141]. Within one month from the registration of candidates the elections must be held^[142].

81.        Public council’s term of office is 2 years^[143], and 2 months before its expiry, the relevant executive or self-government authority must announce preparation for new elections^[144].

82.        Members are elected by secret ballot at a joint meeting of civil society institutions, and in cases of public councils created by the local executive and self-government institutions, then at a joint meeting of those civil society institutions that function on the relevant territory^[145]. Electoral commission registers representatives of civil society institutions that participate in the joint meetings of such institutions based on their request that must be made 10 days prior to the day of elections^[146]. Civil society institutions that have not nominated their candidate can also take part in the selection of members of the public council.^[147]

83.        Member of public council do not get any salary, honorariums, compensation or any other payment for their work at the public council^[148].

84.        Public councils have a right to^[149]:

·         receive information from central and local executive authorities and local self-government necessary for their activities; and on issues requiring consultation with the public – receive their draft legal acts;

·         to propose holding consultations with the public;

·         to make proposals on the formation and implementation of state policy in the relevant field and sphere;

·         to make proposals in connection with the preparation of draft legal acts on the preparation and implementation of public policy in the relevant field;

·         to collect, summarize and submit to the central and local executive bodies and local self-government bodies the proposals of civil society institutions on the solution of issues of public importance;

·         organize public events (public discussions, hearings, seminars, conferences, roundtables and other events) to discuss specific issues of state and public life;

·         with a view to studying public opinion, to conduct polls or to propose to the relevant organizations proposals for conducting opinion polls;

·         to conduct public discussion of draft legal acts;

·         to involve representatives of central and local executive authorities, local self-government bodies, civil society institutions, experts and scientific organizations, including representatives of international organizations, individual experts in the work of the council;

·         to create permanent and temporary working bodies (committees, commissions, expert groups, working groups, etc.) for the implementation of their own goals;

85.        Members of the public council have the right of access to the buildings in which central and local executive authorities and local authorities are located, but only in the manner established by the relevant body.^[150]

86.        Public councils have the following duties^[151]:

·         to comply with the constitution, laws and other normative legal acts of Azerbaijan;

·         to inform the public about the activities of the council;

·         to compile and publish an annual report on its activities;

·         to be impartial about the issues under discussion.

87.        Activities of public councils are detailed out in the law. Thus councils must meet at least 4 times a year, and chairman or 1/3 of members may convene an extra schedule meeting. Meetings must be held openly, and their agendas are proposed by chairman and members and approved at the meeting, while the authorities may propose questions for discussions. Decisions are taken by simple majority vote, and the chairman signs the acts of public councils. Representatives of executive and self-government authorities and local self-government bodies may participate in meetings of the public council^[152].

88.        A chairman of public council is elected from members of public council for 2 years term and is charged with:

·         directing the activities of the public council;

·         representing the public council in relations with state bodies and local self-government bodies, and institutions of civil society;

·         determining the priority directions of the activity of the public council;

·         presiding at its meetings.

89.        Deputy chairman and secretary are also elected for 2 years from among the members of the council^[153].

90.        Public councils adopt their own regulations, which should provide for procedures for adoption of decisions (acts), electing chairman, deputy chairman and secretary, creation of permanent and temporary working bodies, procedures for cancellation of membership in the public council, and other issues^[154].

91.        Public councils may adopt decisions (on organizational matters) and conclusions and proposals on other matters. The conclusions and proposals must be considered by the authorities in accordance with the law “on citizen appeals”, and failure to consider such proposals and conclusions must be justified by the relevant body or official^[155].

5.   Dialogue

92.        This section looks at the framework for permanent cooperation and dialogue between the government and the civil society organisations (NGOs), that is, the possibility of joint decision-making and project implementation. Currently legislation provides for two ways to receive state funding for NGO activities. First is through a grant by state bodies to NGOs that must be endorsed by Council for State Support for NGOs under the auspices of the President of the Republic of Azerbaijan (hereinafter CSSN). The second is state orders (purchases) of social services.

5.1  State grants

93.        Law on grants provides that organisations that receive funding from state budget, and list of which is determined by the President^[156], may provide grants to individuals and legal entities^[157].  Such grants must still be submitted for registration with the Ministry of Justice^[158].

94.        CSSN is a state organisation created for the purpose of “strengthening civil society and securing its sustainable progress” and “increasing the role of Non-Governmental Organisations in issues of public interest”^[159]. CSSN consists of 11 members appointed by the President of Azerbaijan from civil society representatives (8 members) and state bodies (3 members)^[160]. CSSN evaluates themes of grants provided by state bodies and issues opinions on such grants^[161].

95.        State bodies that envisage providing grants should by December 30 of the previous year submit to the CSSN the following information on the themes of funding they propose^[162]:

·         number of competitions they will hold during the year;

·         approximate date of every competition;

·         approximate amount for every competition;

·         themes for funding that are proposed;

·         priority themes;

·         requirements for participants;

·         priority administrative areas (if applicable);

·         legal acts or action plan for activities stipulated in the grant contract or decision (if applicable);

96.        CSSN within 20 days conducts a comparative analysis of proposals of state bodies, and in doing so verifies that the themes are in accordance with the spheres of activities of these state bodies. Within 10 days of conducting the analysis, CSSN provides its opinion to the state bodies concerned, containing its “founded” suggestions and comments^[163].

97.        Moreover, state body should submit to CSSN the following information about NGOs participating in competition for grants within 10 working days of accepting applications^[164]:

·         name, registration number and date, legal address, number and date of the transcript from the state registry, and information about the chairman of the NGO that submitted a project for competition;

·         with regard to the project submitted by NGO, its name, summary, territorial area where it will be implemented, duration of the project, activities envisaged, required funding, and expected outcomes;

·         proposed projects that are prioritised and envisaged amount of grant to be provided by the state body.

98.        Within 10 working days from provision of such information by the state bodies, CSSN provides to the state bodies its opinion concerning the projects and NGOs that provided them^[165]. If the CSSN does not respect abovementioned time limits, the themes and grant provisions should be deemed as having been coordinated^[166].

5.2  State orders (purchases) of social services

99.        According to law “on social service”, it is one of the state objectives in the field of social service to “facilitate participation of …non-governmental organisations…in the provision of social services for persons in need of social services”^[167]. Social service is defined by the law as “comprehensive measures taken to eliminate social problems of individuals (families) who find themselves in difficult life situations and to create opportunities for participation in public life on an equal basis with others”^[168]. An NGO among others may apply to relevant authorities on behalf of a person in difficult life situation to receive social service^[169]. Furthermore, NGOs are part of the social service system along with state authorities^[170].

100.    Importantly, state may place orders (make purchases) in the field of social service to NGOs (among others), in the manner established by the Cabinet of Ministers^[171]. According to the relevant Rules^[172], the orders (purchases) take form of a contract^[173] between state entity (Ministry of Labor and Social Protection of Population, Ministry of Education, Ministry of Healthcare, or local executive power) and a service provider (that can be an NGO). The contracts are concluded on a basis of competition^[174] conducted by a commission created by the relevant executive authority.

101.    State authority that makes purchases must reach an agreement with Ministry of Finance with regard to purposes of state purchases, conditions for conducting them, and amount of funds allocated from the budget for each year in the process of allocating state budget^[175].

102.    A service provider must conform to the following criteria^[176]:

·         partially or completely specialize in the area of the purchased social service;

·         feature “professionalism, experience, technical and financial resources, human resources, competence in management and reliability”;

·         have no overdue tax or other mandatory payment obligations.

103.    Competition commissions are created by the mentioned state bodies, and charged with negotiating the conditions of the purchase agreement, conducting tender competitions, and supervising the implementation of the contract concluded^[177]. Prior to conducting a competition, the commission publishes in mass media, on the website of the state body concerned, and places on the information board of such state body the following information^[178]:

·         technical review of the project is to be financed, the purpose and scope of work;

·         description of suitable candidates;

·         list of documents to be submitted for participation in the competition and requirements to these documents;

·         the timing of commencement and completion of registration for participation in the competition, and the date and place of the competition;

·         address where applications must be sent (room, phone number, office hours);

·         the rules of procedure of the tender.

104.    Competition must be protocolled and the state authority must confirm the protocol within 5 days^[179]. Within 20 days from the confirmation of the protocol contract must be concluded between service provider and state agency^[180].

6.   Civil participation Practices

105.    In order to gather information about practical issues with regard to civil participation, several interviews were conducted in December 2017 with representatives of NGOs that regularly interact with government authorities and participate in either public councils or in other platforms of communication with authorities (such as Open Government Platform). They were interviewed on a variety of questions concerning their experiences and knowledge of access to information about decision-making by authorities, consultations and hearings conducted by authorities, establishment, elections and membership in public councils, their frequencies of meetings, impact and follow-up from the discussions, as well as practices of budget purchases or joint decision-making with authorities and civil society.

106.    Participants highlighted the importance that both government and civil society attach to civil participation mechanisms, particularly since the adoption of the law “on public participation” in 2013, but also expressed their disappointment in that the adoption of the law did not meet broader expectations by civil society in Azerbaijan.

107.    Participants were concerned with the level of information available to civil society about activities and decision-making by authorities. It was noted that authorities treat their activities as confidential information and are often secretive about the agenda and decision-making process in government agencies. Overall, decision-making by authorities was characterized as a closed process, with independent NGOs having no sufficient access to it. Information provided to civil society was characterized as rudimental and irregular, with often no information made available at all until authorities adopt a final decision.

108.    Furthermore, according to participants, authorities share information asymmetrically, in that certain civil society organizations (ones ‘trusted’ by authorities concerned) are typically better informed than others. These are usually organizations that are in a symbiotic relationship with government, that are not critical and typically justify any government action.

109.    It is noteworthy that concerns on insufficient access to information apply to Parliamentary level discussions and decision-making as well. Thus, for example, Parliamentary discussion minutes and legislative agendas are not published timely and with sufficient detail. Advanced levels of public participation at the level of Parliament and Parliamentary committees are virtually non-existent. Furthermore, the section of the website of the Parliament that allows making comments and suggestions to draft laws does not provide any information about what happens to submitted suggestions afterward.

110.    The websites of public authorities often consist of the main page and several poorly maintained sections with basic information, such as texts of laws and regulations that constitute their legal basis. Typically, authorities only disclose proposals and initiatives with civil society where law directly obliges them to do so.

111.    It was pointed out that authorities conduct hearings and consultations infrequently. Public hearings organized by the Parliament recently on the reforms of the penal legislation are a rare example.

112.    With regard to the establishment of public councils, state authorities are not held accountable for the establishment of these participatory mechanisms. One of the reasons is the absence of the list of executive authorities that must create consultative and participatory mechanisms (council, committees), which was supposed to be enacted according to the presidential decree implementing the law “on public participation”. Participants suggested that the establishment, elections, membership, and procedures of public councils should be monitored.

113.    As to the elections of public councils, participants noted irregularities in the process of nomination, conducting elections and transparency of the procedures. Firstly, election commission members were not experienced in conducting elections. Secondly, there were often not enough CSOs, especially in regions, for effective elections. Election commissions consist of 9 members (5 CSO representatives, and 4 representatives of the host institution) that cannot be elected into the public council. Elections must be held every two years, which in practice means that usually there are not enough NGO representatives to participate in both the public committee and the election commission.

114.    Moreover, according to the participants in interviews, elections themselves were not objective and transparent, and predetermined candidates were elected. Elections were not properly announced, and sometimes elections did not even take place, meaning there was no ballot. One participant characterized elections as a “hidden and hasty” procedure.

115.    Participants suggested remedying the election process by adopting minimum standards for election procedures, and basic criteria for their fairness and transparency. One of the participants suggested that a specialized institution should conduct elections of all public councils, which could either be the Council for State Support of NGOs or better an organization independent from the government.

116.    Participants were also concerned with regard to the current membership in the existing public councils, pointing out that their composition does not change through years, and, moreover, the same individuals (from pro-government NGO’s) are represented across a number of public councils and committees.

117.    Whereas one of the participants suggested that the existing term of office in a public council (2 years) is a balance between the necessity of rotation and accountability on the one hand, and the shortage of professional and knowledgeable civil society organizations capable and willing to be part of a public council on the other hand, not all participants shared this premise. Thus, it was pointed out that there is a sufficient number of professional civil society representatives, and no actual reason to have the same individuals as members in several public councils and committees for protracted periods. While participating in more than one public council could be a burden for an NGO resource-wise, it is better to address this issue by enhancing capacity of civil society.

118.    Concerning the functioning of public councils, it was pointed out that these councils cannot function independently due to a flawed legal basis, as often they are not authorized to conduct many activities. They conduct regular meetings to the extent that law establishes such obligation, but in practice, they meet infrequently and their procedures and meetings are not transparent to the public. There is usually either very basic information (such as location and date of meeting indicated on the website), or no information at all provided about meetings held. One member of a public council noted that sometimes there is an on-going “virtual” discussion without conducting formal meetings.

119.    Participants suggested that positive obligations should be established for public councils to share information about their activities; obliging them not to exclude non-members of public councils from their activities and meetings; as well as concerning their responsibility to engage with broader civil society.

120.    Participants noted that usually discussions at public councils, hearings or consultations have limited impact on decision-making process by authorities. One participant noted that usually authorities only take into account those proposals by civil society that they like of favour. Sometimes authorities accept secondary, less important proposals. Authorities also manipulate proposals made by civil society (e.g. during 2013-2014 changes to NGO legislation), disregard them and present their decisions to civil society as fait accompli. One participant suggested that public councils are becoming a mere “box-ticking” mechanisms for authorities to rubber-stamp their decisions.

121.    Participants mentioned that government practices funding civil society through grants and procurement of their services. For example, Ministry of Labour and Social Protection of Population regularly purchases services of CSOs, but it is always their ‘client’ NGOs that receive purchases or participate in monitoring the implementation of services. A few ministries have budgets for civil society, but the procedures for spending them are usually not elaborate, and very often there are either no competitions held, or no information is provided about such competitions (tenders) to the public. One participant pointed out that currently 9 state agencies are authorized to provide grants to NGOs in Azerbaijan, but sometimes grants are provided to NGOs that are close to respective government authorities and are their clients. On the other hand, it was noted that the Council for State Support to NGOs has a robust procedure for grant competitions.

122.    Individual state agencies usually have provisions concerning procurements from civil society in their regulations. But, as one participant noted, either a dedicated law or regulations of individual ministries and agencies must provide for transparent and competitive procedures for conducting purchases from civil society, as well as for monitoring implementation of purchased services.

123.    Survey participants proposed a number of suggestions, including:

·         Improving legislation on access to information concerning decision-making by authorities, both on early and advanced stages of the process;

·         Promoting a code of conduct for officials on provision of information to civil society in order to ensure transparency of the decision-making process;

·         Implementing consultations and discussions on the level of Parliament and Parliamentary committees;

·         Furthering the implementation of the law “on public participation” by obliging decision-making authorities to establish participatory mechanisms;

·         Establishing procedural guarantees for fair and transparent elections to public councils;

·         Monitoring establishment, elections, and procedures of public councils;

·         Creating a uniform and centralized mechanisms for elections to public councils;

·         Obliging public councils to inform public about their activities, and to open their discussions and activities to the wider civil society, including organizations that are not members;

·         Obliging authorities to provide information on lifecycle of proposals and suggestions made by civil society representatives;

·         Adopting uniform, fair, transparent and competitive procedures for state procurement of services from civil society, as well as for monitoring implementation of purchased services.

7.   Recommendations

124.    Civil participation is a right enshrined in the Constitution, a necessary pre-requisite of open government, and a tool for enhancing the legitimacy and effectiveness of laws and decisions. Two main pre-requisites for effective participation of citizens and civil society in decision-making and deliberations of government authorities, is enabling environment for NGOs and access to information about such decision-making processes. As it stands, Azerbaijani legislation and regulatory framework would benefit from the following steps.

1.      Legislative initiatives and draft laws, regardless of their initiator, should always be published (whether in print or online).

2.      Law must make it clear that information about draft laws and deliberations on bills does not fall into categories of restricted information.

3.      Executive bodies that can adopt regulations (legal acts) should be obligated to publish drafts of rules and regulations, as well as their regulatory agendas.

4.      Publicity and openness requirements should be extended to executive and local self-government bodies.

5.      The law should provide more detail as to in which cases public hearings and discussions are organized.

6.      The law must ensure that all interested groups, including the groups opposing the government ideas, are invited to hearings and discussions.

7.      Alternative drafts and suggestions provided in the course of discussions, hearings and consultations should also be published.

8.      The law should guarantee that opposing views receive the same possibility to be expressed (e.g. time allocation in agenda).

9.      A procedure for establishing public councils that provides for self-nomination principle should be implemented. Self-nomination is a best way to ensure that individuals who do not receive salary or benefits are committed to serve at a public council.

10.  The discretionary powers of the election commissions to reject candidates must be limited.

11.  Two years term may not be sufficient for developing effective relationship with civil society.

12.  The law elaborates extensively on the internal functioning of public councils, leaving less room for self-regulation.