The OSCE Bureau for Democratic Institutions and Human Rights (OSCE/ODIHR) usually presents a Needs Assessment Mission Report prior to the elections to be held in member states. Following an invitation of the Azerbaijani government, the OSCE/ODIHR announced the Needs Assessment Mission Report on the 1 November parliamentary elections in Azerbaijan at the end of August 2015.

The report was almost repeating the similar documents, pre­ pared for the previous elections in 2008, 2010, and 2013, and only the figures differed from the previous ones. Important points regarding the election environment and electoral process were merged under the following topics: gender equality, election commissions, appeals procedures, candidate registration process and the freedom of assembly, NGO election monitoring, defamation rules and the media access.

The comprehensive analysis of the OSCE/ODIHR NAM report revealed that the recommendations by the international institutions (EP, PACE, OSCE PA, OSCE/ODIHR and the Venice Commission) so far with regard to the elections in Azerbaijan were summarized around the topics mentioned in the NAM re­ port and several other critical remarks. The objectivity and the level of substantiation of these critical remarks were of utmost importance.

Therefore, in order to evaluate whether or not and to what extent these critical remarks made in the OSCE/ODIHR NAM report on the relevant legal framework and practice in Azerbaijan are objective, we comparatively analyzed the framework of the electoral process in Azerbaijan with the legislation and practices of some European countries, such as of German, French, Dutch and Norwegian ones. All key issues were reflected in the comparative analysis, and the gender equality was separately analyzed from international point of view.

1. The OSCE/ODIHR NAM drew attention to the fact that women are underrepresented in the public office, holding some 16% of the seats in the parliament, and 1 out of the 42 ministerial posts. It should be noted in this regard that the issue of underrepresentation of women in decision-making posts is one of the very important issues in many mature democracies.

The parallel comparative analysis shows that the percentage of women in national parliaments over the period of 2010-2014 is similar or less than in Azerbaijan in most cases with international and European examples. For example, the Czech Republic (20%), Estonia (19%), Hungary (10%), Ireland (16%), Japan (8%), Malta (14%), Romania (14%), the United Kingdom (23%) and the United States (19%).

Moreover, in our region, the Republic of Azerbaijan with 16% of the female parliamentarians possesses the best result, and consequently, this figure stands at 11% in Armenia, 12% in Georgia, 3% in Iran, 14% in the Russian Federation, and 14% in Turkey.

Interestingly, the NAM report mentions the lack of any provision in the election commissions with regard to the balanced gender representation. However, analysis revealed that the election laws of the countries under consideration do not provide for specific provisions on the representation of women in any of the relevant electoral commissions of those states. Thus, in Azerbaijan’s example, it was groundless and biased to touch upon the issue of gender equality in the election laws on the composition of the electoral commissions.

2. Another issue discussed in the OSCE/ODIHR NAM report concerns the election commissions. The report says that the formula for organizing compositions of the election commissions, the candidate registration procedure, the review mechanism of complaints and appeals remained the subject of the longstanding recommendations and has not yet been considered.

We made comparative analysis of the Azerbaijani legislation on the organization of the elections, its proper supervision and the institution responsible for the election process and its formation mechanisms with the German, Dutch, Norwegian and French legislations.

Comparative analyses of the electoral laws of the countries concerned indicate that in certain cases (for instance, in Germany or in Netherlands), the Interior Ministry, a branch of the executive authorities, is entrusted with broad powers to nominate the members of the central electoral commissions. Therefore, in view of the fact that the Central Election Commission is the central body responsible for the organization, conduct, control of the elections in the country and functions as an independent administration, the criticisms of the system applied in Azerbaijan is both unjustified and unfair.

At the same time, it was found that none of the mentioned European states adopted any legal provisions to deal with the possible influence of the ruling political parties on issues such as the decision to set up election commissions. In addition, the legal provisions do not stipulate specific rules on the legal capacity and professionalism of the election officials.

As a result, it can be concluded  that although one can agree on the possibility of progresses  in the organization and activities of the election commissions, the analysis of the current system that secures the political parity in the organization of the election commissions in Azerbaijan is the most appropriate and balanced  system among the analyzed models. We believe that the OSCE/ODIHR NAM report contains groundless and narrow judgments on this issue.

3. One of the points of criticism of the ODIHR’s NAM report concerns the duration of the election campaign. It is well-known that the election campaign in Azerbaijan legally commences 23 days prior to the voting day and any election campaign must stop minimum 24 hours prior to the start of the voting.

The comparison found out that the laws in Germany, Netherlands and Norway do not define the duration of the election campaign period. However, the French legislation defines exactly 20 days of campaigning period for the National Assembly elections before the polling day. Alongside, it should be noted that though the German, Dutch and Norwegian laws do not provide for the duration of the election campaign periods, customs and traditions, as well as extra legal requirements and practical considerations, such as costs, de-facto dictate a campaign period of 3 to 5 weeks.

Thus, Azerbaijan has similar campaigning period with the other European nations in question in the report. From legal perspective strictly, France has the most stringent legal provisions, with only twenty days of legally sanctioned election campaign period. In this regard, Azerbaijan’s regulations are softer than of France, and at the same time, are on par with the de facto campaigning period in other analyzed European countries.

4. The appeals procedures are one of the points touched upon in the OSCE/ODIHR NAM report. It should be noted that according to the Azerbaijani legislation, complaints about potential violations of the electoral laws may be filed by the parties concerned within three days after an alleged illegal decision or an action is taken. All such motions are investigated by expert groups created at the Central Election Commission, made up of nine members, and at the district electoral commissions, consisting of three members. According to the existing dual legal framework in Azerbaijan, the complaints are first dealt with by the independent electoral commissions, after that an applicant can appeal to the court (Court of Appeal) both prior and after the elections.

It should be noted that Azerbaijan keeps the legislative branch away from the appeals process by enabling decisions to be made by the Central Election Commission which is a more politically balanced institution, while also providing for the judiciary to play a very active role. The other European countries under consideration do not enact provisions aiming at eliminating a potential abuse of power by the ruling parliamentary majority. Only in limited instances, it allows for appeals to the judiciary when the issue is about the right to vote as guaranteed under the constitution. In general, the comparative analysis shows that Azerbaijan’s procedures for electoral appeals are at least on a par with those enacted by other European countries. Accordingly, critical remarks voiced over this issue should be considered as biased.

5. OSCE/ODIHR NAM report draws special attention to the candidate registration process during the parliamentary elections and says that each potential candidate shall submit 450 signatures of the registered voters to their respective constituency electoral commissions. It expresses concerns about a potential pressure for signatures given to the opposition political parties and other independent candidates.

The analyses show that for the registered political parties that have gained seats in the national parliaments (Netherlands and Germany) or have garnered a minimum amount of votes at the latest elections (Norway), it is enough to submit documents, and the signatures of the executive leaders of the parties. France does not apply any special requirements in terms of endorsement of signatures for the parliamentary elections. Besides, in situation other than mentioned, for a candidacy to be registered at the national elections, Norway requires 500 valid signatures, with Germany 200 and the Netherlands 30. This implicitly signifies the fact that parliamentary parties are subject to easier legal constraints than other groups.

Furthermore, Azerbaijan, in particular, allows voters to sign in support of multiple hopefuls, and this makes the registration process easier. When a voter in the Netherlands gives a signature, he/she is demanded to physically report to a relevant state body. Germany enables the voters to also withdraw their signatures given in support of candidates, thus nullifying the candidature if a majority of them follow this provision, as well as candidates are required to be nominated in an internal electoral process by a political party.

Azerbaijan, Germany and Norway do not apply any financial restrictions for the registration of candidates. However, Netherlands requires extra-parliamentary political parties to make a mandatory deposit (minimum deposit of 11.250 euro). This deposit is not refunded if a minimum number of votes are not gained in the electoral process, thus creates a barrier for a new and limited appeal with regard to their participation in the electoral process at the national level.

Thus, compared to the valid processes in the Western democracies under consideration, the idea that the candidate registration process in Azerbaijan creates some significant difficulties for interested parties (political groups or independent candidates) is groundless.

6. OSCE/ODIHR NAM report expressed serious concerns about not easing of restrictive provisions on the freedom of assembly, the freedom of association and the freedom of expression.

During the analysis, we drew attention on separation of the right of holding peaceful gatherings from other types of manifestations and concluded that in general, the fundamental rules pertaining to public gatherings in those countries are not different from that in Azerbaijan.

It should also be noted that the legal provisions instituted by Azerbaijan also make a clear and notable distinction between the participants in illegal gatherings and their organizers. As in all Western countries, the organizers should bear more responsibility for any illegal behavior. Therefore, any claim should not be based on allegation but specific examples. For example, if legal provisions on public gatherings are ignored by responsible officials, if the organizers of the said gatherings and manifestation take this issue to court successfully or other way round can be samples.

In the absence of such examples and with the fundamental legal guidelines regarding the freedom of assembly not being in any way obstructive to their rules in Azerbaijan as compared to western nations, we can only conclude that at least on this matter: the NAM report is fundamentally based on opinions expressed by interested parties and not legal facts or concrete examples where potential wrong-doing or faulty regulations can be addressed.

7. The OSCE/ODIHR NAM report highlights the NGO election monitoring as one of the issues of concern. It notes that although several civil society organizations expressed their intentions to observe the elections, many said that a lack of financial resources would likely restrict their activities to do so.

The analysis reveals that Azerbaijan, Netherlands and Norway specifically allow registered national and international observers to monitor voting at polling stations. Norway requires the registration of both local and international observers. Although France and Germany in principle allow monitoring of the elections, they do not have special legal provisions or specific regulations.

Despite concerns expressed in the OSCE/ODIHR NAM re­ port, monitoring regulations, applied in Azerbaijan, are directly in line with those of the analyzed Western nations. Considering the all-encompassing and permissive nature of the law passed by the Republic of Azerbaijan for this purpose, as well as the fact that crossed monitoring by all interested parties and voters is not only permitted but facilitated, any concerns regarding the capacity of observers and voters willing to supervise the electoral process are unfounded and are blown out of proportion.

8. Finally, the final concern expressed in the OSCE/ODIHR NAM report concerned the defamation rules and the media. The report stressed that although the freedom of expression, the media freedom and the right to access to information are guaranteed in the constitution, defamation remains a criminal offence, with a penalty of up to two years in prison.

It should be noted that the issue of defamation as a matter of fact remains as one of the most contentious matters when discussing Azerbaijani legislation. However, as the comparative analysis indicates, defamation provisions in the Azerbaijani legislation are not at all dissimilar from articles of Dutch, French, Norwegian or German laws, and are much milder in terms of the potential sentences applied for similar offences in some Western countries.

For example, in Germany, human dignity is protected by relevant provisions of the Criminal Code and is subjected to two years in prison in case of insult; for defamation, the punishment period is two years; libel in the media is punishable for up to five years in prison if committed publicly through distribution of written materials, which, inter alia, may include newspaper articles. Alternatively; the above-mentioned violations are punishable from theoretically minimum 5 to 10.8 million euros.

In the Netherlands slander is punished with a maximum sentence of up to six months imprisonment or a fine up to 8, 100 euros, libel with up to one year imprisonment or a fine of 8, 100 euros, intentional libel or slander with up to two years imprisonment or a fine of up to 20, 250 euros, and insult with a sentence of up to three months imprisonment or a fine of up to 4, 050 euros.

In Norway, ordinary defamation is a criminal offence punishable with up to three months’ imprisonment if committed against an individual In France, defamation is a criminal offense punishable with a fine of up to 12, 000 euros.

As it transpires from samples of the examined legislative provisions, all cases of insults and defamation are criminal acts, and France has the most liberal laws. Germany applies the most severe punishments for an insult and defamation, especially in cases involving public officials or symbols of state, which is a maximum sentence of up to five years imprisonment. As for alternative punishments in terms of fines, Azerbaijan has a minimum fine, while the largest ones can be found in Germany with a hypothetical maximum amount of 10.8 million euros.

Thus, defamation rules still exist in European countries and these rules are milder in Azerbaijan compared to those in the analyzed countries. However, it is dear that while the OSCE/ODIHR NAM report recommends decriminalizing defamation, there are no such recommendations regarding the member states of the European Union in NAM reports. And this casts doubt on securing the principle of neutrality in the OSCE/ODIHR NAM report and reveals the demonstration of an outright biased position.

With regard to the media access of the candidates  during the elections in Azerbaijan, Netherlands, Norway and France, the comparative analysis shows that Netherlands, Germany, France and Azerbaijan provide free airtime for the participants in electoral campaigns. Germany allots the broadcasting time proportionally to the current parliamentary representation of the parties, thus favoring the larger parties and implicitly the ruling party. Azerbaijan, France and Netherlands provide for equal free airtime in slots determined by means of casting lots.

In Azerbaijan, in order to make small political parties’ access to the public, a mandatory minimum is defined by law. For its part, Netherlands grants responsibilities to this end to the Media Organization. Thus, provisions for candidates’ equal access to the media are dearly in line with accepted current procedures the Western countries apply. Taking into account the above analysis, we can come to a conclusion that the concerns expressed with regard to the media access are unfounded. Pro­ visions made by Azerbaijan are on a par with those made by the Western countries.

I would like to note that the laws that are subject to discussions and  even criticism on several occasions in the OSCE/ ODIHR NAM report are at least on a par with similar laws of the established Western countries. Moreover, the fact that the criticism in the report are based on the allegations and considerations expressed by the interested parties, but not on the accurate factual data, and the reference to non-existing and possible potential pressures, is an indication of non-objectivity and the violation of neutrality. Legislations in most EU countries on certain matters (for example, defamation rules) are stricter compared to Azerbaijan. These issues were criticized in the NAM report with regard to Azerbaijan, whereas this is not the case in reports on other EU member states. 1hls proves the application of double standards and a biased approach against Azerbaijan by the OSCE/ODIHR.