Azerbaijan

Azerbaijan - Monitoring report

Date of the monitoring visit: from 2 to 5 April 2012
Report adopted on: 26 February 2013

This is the second report concerning the monitoring of local and regional democracy in Azerbaijan since 2003. The rapporteurs deeply regret that, since then, most of the recommendations addressed in 2003 to the national authorities have not been implemented; nor has a timeline been set to take them on board in the foreseeable future. In this context, the Government is invited to take the necessary measures to adopt an action plan in order to implement the Congress recommendations.  The report stresses the virtual inexistence of local self-government and the supervision of state bodies in the so-called municipalities, as well as the weak financial potential of municipalities, and the lack of a procedure for consultation with municipalities and national associations of municipalities, in due time and in an appropriate way, in planning and decision-making for all matters which concern them directly.

 

The report recommends, among other things, that the Azerbaijan Government review the law of the Republic of Azerbaijan on the status of municipalities with the aim to recognise municipalities as decentralised institutions exercising public power as part of the overall public administration, reconsider substantially and clarify the division of tasks and powers between parallel structures of local public administration, transferring the most important local public competences to municipalities and allocate sustainable financial resources to municipalities, commensurate with their competences,  and ensure that municipalities can freely dispose of their resources within the scope of their powers. Finally, the Congress calls on the Azerbaijani authorities to enact a law on the special status of the capital, Baku, to consider providing a system of democratic election for the local government of Baku city.

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Article ratified Ratified with reservation Non ratified
Compliance Partial compliance Non compliance To be determined
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Article 2
Constitutional and legal foundation for local self government - Article ratified

The principle of local self government shall be recognised in domestic legislation, and where practicable in the constitution.


Article 2 of the Charter requires signatory countries to recognise the principle of local self-government in their domestic legislation. The relevant chapter of the Constitution (Chapter VIII) and the corresponding provisions of the Law on the Status of Municipalities do not fully meet the requirements of the Charter since they do not recognise local authorities as part of the state organisation system and do not acknowledge the right of local governments to regulate and manage a substantial proportion of local public affairs. Despite the repeated recommendations of the various Council of Europe bodies, Azerbaijan has failed to implement Articles 2 and 3 of the Charter since 2003.

 

The constitutional and legislative recognition of the principle of local self-government, which refers to the right of local authorities to regulate and administer local affairs in an autonomous way, is an indispensable requirement of the Charter, and Azerbaijan should therefore unambiguously recognise municipalities as state institutions exercising public power and as part of the overall public administration. To that end, the relevant provisions of the Constitution and the Law on the Status of Municipalities should be brought into line with Articles 2 and 3 of the Charter.

 

It should be noted that Recommendation 126 (2003) on local and regional democracy in Azerbaijan and the Venice Commission have already proposed a more precise legal definition of municipalities and the reformulation of the relevant law to specify that, “while municipalities are undeniably independent, they are none the less public authorities belonging to the country’s system of public administration, like all other authorities directly elected by the people”.

 

Although the Charter recognises the freedom of all member states to establish their own system of public administration adapted to their specific national, historical and other characteristics and does not require the establishment of a regional level of self-government, the Azerbaijani authorities could consider setting up directly elected regional governments in the light of the Regional Framework on Regional Democracy in order to mitigate the centralisation of public administration and make territorial governance more effective and democratic. This regionalisation could be built on either the existing structures of the economic regions or on the administrative districts, albeit with partly modified powers and duties.

Article 3.1
Concept of local self government - Article ratified

Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.


While the basic powers and duties of municipalities are laid down by the Constitution and statutes, the range of responsibilities of local governments is extremely narrow and in no way corresponds to the requirement of Art. 3(1) of the Charter that a “substantial share of public affairs” should fall within the jurisdiction of local governments. Although the Charter does not specify the kind of local public affairs to be regulated and managed by local authorities (municipalities in this particular case), the most important local matters that greatly affect the life of the local community should, as a general principle, be decided and managed by local governments. In Azerbaijan, the vast majority of local public services are delivered by the local executive bodies of the state administration, which are directly subordinate to the central government authorities. This division of powers and duties may lead to an ineffective local administration and, in the absence of local democratic scrutiny, result in a serious democratic deficit.

 

In particular, Recommendation 126 (2003)1 stated that “the powers and responsibilities of Azerbaijan’s municipalities are very limited, failing to account for any substantial share of public affairs as stipulated in the European Charter of Local Self-Government”, but since then no change has occurred in the legislation. Moreover, as explained in paragraph 71 a presidential decree from 6 June 2012 minimized in fact the powers of municipalities

 

In order to comply with the principles enshrined in Art. 3(1) and Art. 4, the Azerbaijani authorities should substantially review the division of tasks and powers between the parallel structures of local public administration and establish a transition period for transferring responsibility for the most important local public matters to the municipalities. The division of powers and duties between the local executive authorities and the municipalities is so disproportionate and uneven at the moment that an immediate transfer of tasks and functions can hardly be rationally accomplished. Local governments should be enabled to carry out the new functions in an effective and efficient way. A quicker and more effective transfer would be possible if the local and executive authorities were democratically elected by the citizens. However, as things stand today in Azerbaijan, local authorities, both in their composition and in their operation, do not conform with basic democratic principles and do not benefit from the principles of autonomy laid down in the Charter, which the national authorities have ratified.

 

The functions of local governments are typically not full and exclusive since municipalities and local executive authorities carry out many parallel functions. Although the Charter gives priority to full and exclusive powers of municipalities, this is not a categorical rule. However, if both local governments and local bodies of the state administration have tasks in a specific area, it is a minimum requirement that the relevant responsibilities should be clearly separated from each other, and there should be a precise division of responsibilities. Accordingly, the Law on the Status of Municipalities and the other laws transferring mandatory tasks and functions to municipalities should ensure that the powers and duties entrusted to municipalities are full and exclusive and that the municipalities have full discretion to exercise their initiative with regard to any matter not excluded from their competence or assigned to any other authority.

 

The Charter also requires that local authorities should have discretionary power even as regards delegated powers, so as to adapt their exercise to local conditions. However, as a first step it is necessary to define clearly the administrative nature of municipalities’ responsibilities, distinguishing the delegated powers from other functions, since central government should ensure the proper financial means necessary to implement the delegated tasks.

 

It would also be advisable to empower local governments explicitly to undertake voluntary tasks for the welfare of the local population that do not fall within the exclusive responsibility of another public authority. 

Article 3.2
Concept of local self government - Article ratified

This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute.


Consult reply indicated at article 3.1

Article 4.1
Scope of local self government - Article ratified

The basic powers and responsibilities of local authorities shall be prescribed by the constitution or by statute. However, this provision shall not prevent the attribution to local authorities of powers and responsibilities for specific purposes in accordance with the law.


Consult reply indicated at article 3.1

Article 4.2
Scope of local self government - Article ratified

Local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority.


Consult reply indicated at article 3.1

Article 4.3
Scope of local self government - Non ratified

Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy.


Azerbaijan has declared itself not bound by Article 4(3) of the Charter.

Article 4.4
Scope of local self government - Non ratified

Powers given to local authorities shall normally be full and exclusive. They may not be undermined or limited by another, central or regional, authority except as provided for by the law.


143. While the basic powers and duties of municipalities are laid down by the Constitution and statutes, the range of responsibilities of local governments is extremely narrow and in no way corresponds to the requirement of Art. 3(1) of the Charter that a “substantial share of public affairs” should fall within the jurisdiction of local governments. Although the Charter does not specify the kind of local public affairs to be regulated and managed by local authorities (municipalities in this particular case), the most important local matters that greatly affect the life of the local community should, as a general principle, be decided and managed by local governments. In Azerbaijan, the vast majority of local public services are delivered by the local executive bodies of the state administration, which are directly subordinate to the central government authorities. This division of powers and duties may lead to an ineffective local administration and, in the absence of local democratic scrutiny, result in a serious democratic deficit. 144. In particular, Recommendation 126 (2003)1 stated that “the powers and responsibilities of Azerbaijan’s municipalities are very limited, failing to account for any substantial share of public affairs as stipulated in the European Charter of Local Self-Government”, but since then no change has occurred in the legislation. Moreover, as explained in paragraph 71 a presidential decree from 6 June 2012 minimized in fact the powers of municipalities 145. In order to comply with the principles enshrined in Art. 3(1) and Art. 4, the Azerbaijani authorities should substantially review the division of tasks and powers between the parallel structures of local public administration and establish a transition period for transferring responsibility for the most important local public matters to the municipalities. The division of powers and duties between the local executive authorities and the municipalities is so disproportionate and uneven at the moment that an immediate transfer of tasks and functions can hardly be rationally accomplished. Local governments should be enabled to carry out the new functions in an effective and efficient way. A quicker and more effective transfer would be possible if the local and executive authorities were democratically elected by the citizens. However, as things stand today in Azerbaijan, local authorities, both in their composition and in their operation, do not conform with basic democratic principles and do not benefit from the principles of autonomy laid down in the Charter, which the national authorities have ratified. 146. The functions of local governments are typically not full and exclusive since municipalities and local executive authorities carry out many parallel functions. Although the Charter gives priority to full and exclusive powers of municipalities, this is not a categorical rule. However, if both local governments and local bodies of the state administration have tasks in a specific area, it is a minimum requirement that the relevant responsibilities should be clearly separated from each other, and there should be a precise division of responsibilities. Accordingly, the Law on the Status of Municipalities and the other laws transferring mandatory tasks and functions to municipalities should ensure that the powers and duties entrusted to municipalities are full and exclusive and that the municipalities have full discretion to exercise their initiative with regard to any matter not excluded from their competence or assigned to any other authority. 147. The Charter also requires that local authorities should have discretionary power even as regards delegated powers, so as to adapt their exercise to local conditions. However, as a first step it is necessary to define clearly the administrative nature of municipalities’ responsibilities, distinguishing the delegated powers from other functions, since central government should ensure the proper financial means necessary to implement the delegated tasks. 148. It would also be advisable to empower local governments explicitly to undertake voluntary tasks for the welfare of the local population that do not fall within the exclusive responsibility of another public authority. 149. Azerbaijan has declared itself not bound by Article 4(3) of the Charter (see part 12.8 below)
Article 4.5
Scope of local self government - Article ratified

Where powers are delegated to them by a central or regional authority, local authorities shall, insofar as possible, be allowed discretion in adapting their exercise to local conditions.

 


Consult reply indicated at article 3.1

Article 4.6
Scope of local self government - Article ratified

Local authorities shall be consulted, insofar as possible, in due time and in an appropriate way in the planning and decision-making processes for all matters which concern them directly.

 


Consult reply indicated at article 3.1

Article 5
Protection of local authority boundaries - Article ratified

Changes in local authority boundaries shall not be made without prior consultation of the local communities concerned, possibly by means of a referendum where this is permitted by statute.

 


The Charter requires that local authority boundaries should not be changed without prior consultation with the local communities concerned, possibly by means of a referendum where this is permitted by statute. Although the request for the opinion of the local community in the case of any change in an administrative boundary of a municipality is defined by law, some reports claim that the practice does not comply with this requirement in every case. Therefore, more attention should be paid to the compliance with this guarantee, and it would also be advisable to specify the forms and mechanisms of consultation on these issues.

 

The transparency of local government mergers could be increased by determining the strategic objectives and goals of municipal integration (if any) and discussing them with the municipalities concerned and their associations prior to any change in local governments’ administrative boundaries

Article 6.1
Appropriate administrative structures and resources for the tasks of local authorities - Article ratified

Without prejudice to more general statutory provisions, local authorities shall be able to determine their own internal administrative structures in order to adapt them to local needs and ensure effective management.


The local authorities have the right to determine their internal administrative structures and they should be able to adapt them to local needs and ensure effective management. Apparently, this organisational autonomy can be restricted only by law, in order to ensure the democratic operation of all local governments. The Charter requires that the right conditions must be provided for the office of local elected representatives in order to ensure free exercise of their functions.

 

It is important that these provisions not only require the state to respect the local governments’ freedom to organise their internal structures but also enable them to enjoy this right in practice. The process of transferring property to municipalities, as determined by law, should be completed as soon as possible. Moreover, the municipalities should be provided with administrative buildings and other physical assets and instruments necessary for them to implement their tasks and functions. The central government should take also effective measures to launch capacity-building and proper training programmes for the members of municipal staff in order to increase the quality of their daily administrative work. 

Article 6.2
Appropriate administrative structures and resources for the tasks of local authorities - Article ratified

The conditions of service of local government employees shall be such as to permit the recruitment of high-quality staff on the basis of merit and competence; to this end adequate training opportunities, remuneration and career prospects shall be provided.


Consult reply indicated at article 6.1

Article 7.1
Conditions under which responsibilities at local level are exercised - Article ratified

The conditions of office of local elected representatives shall provide for free exercise of their functions.


Consult reply indicated at article 6.1

Article 7.2
Conditions under which responsibilities at local level are exercised - Non ratified

They shall allow for appropriate financial compensation for expenses incurred in the exercise of the office in question as well as, where appropriate, compensation for loss of earnings or remuneration for work done and corresponding social welfare protection.


Azerbaijan has declared itself not bound by Article 7(2) of the Charter. 

Article 7.3
Conditions under which responsibilities at local level are exercised - Article ratified

Any functions and activities which are deemed incompatible with the holding of local elective office shall be determined by statute or fundamental legal principles.


Consult reply indicated at article 6.1

Article 8.1
Administrative supervision of local authorities' activities - Article ratified

Any administrative supervision of local authorities may only be exercised according to such procedures and in such cases as are provided for by the constitution or by statute.


Any administrative supervision of the activities of the local authorities can only aim at ensuring compliance with the law and with constitutional principles. Administrative supervision may, however, be exercised with regard to expediency by higher-level authorities in respect of tasks the execution of which is delegated to local authorities.

 

Article 52 of the law on the status of municipalities should precisely determine which administrative authorities are empowered to exercise legal supervision over municipalities, thus eliminating the uncertainty of the current legislation, which refers only to the “relevant executive body”.

 

The local governments’ obligation to report to the parliament (Article 146- IV of the Constitution) about their operation should be abolished as a pointless and unnecessary duty. In this respect see para 110 – the Venice Commission pointed out also this matter of concern in light of the European Charter of local self-government. Instead, the central government’s supervisory authority should be confined to checking the lawfulness of municipal acts. The Azerbaijani authorities should make efforts to abolish any additional and informal supervision carried out by local executive authorities, and the latter should refrain from asking municipalities to report to them about their activities, with the exception of supplying statistical data where justified.

Article 8.2
Administrative supervision of local authorities' activities - Article ratified

Any administrative supervision of the activities of the local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles. Administrative supervision may however be exercised with regard to expediency by higher-level authorities in respect of tasks the execution of which is delegated to local authorities.


Consult reply indicated at article 8.1

Article 8.3
Administrative supervision of local authorities' activities - Article ratified

Administrative supervision of local authorities shall be exercised in such a way as to ensure that the intervention of the controlling authority is kept in proportion to the importance of the interests which it is intended to protect.


Consult reply indicated at article 8.1

Article 9.1
Financial resources of local authorities - Article ratified

Local authorities shall be entitled, within national economic policy, to adequate financial resources of their own, of which they may dispose freely within the framework of their powers.


Art. 9(1) of the Charter provides that local authorities must have adequate financial resources of their own, of which they may dispose freely within the framework of their powers. Financial autonomy is an essential component of the principle of local self-government and for the exercise of a wide range of responsibilities in the field of local public affairs. These elements are cumulative and not alternative, which means that all conditions laid down in this provision of the Charter are mandatory.

 

Another basic principle requires that local authorities must have sufficient financial resources in proportion to the responsibilities assigned to them by law. However, this requirement seems to be more or less met in Azerbaijan, but only because municipalities have only extremely limited functions.

 

As all evidence shows, municipalities have only minimal financial resources, which is the main obstacle to their becoming properly involved in local administration in Azerbaijan. In the absence of sufficient revenues, they are not able to play a more significant role in local democracy. It is inconsistent to say, as the delegation was told during the visit that, on the one hand, municipalities are unable to perform more tasks and functions than those that they carry out today and to claim, on the other hand, that they do not need more revenues because they perform only a few tasks.

 

Parallel to the proposed decentralisation of tasks and functions, the state budget should contribute to their costs to a much greater extent than is currently the case. As large a proportion of these transfers as possible should be allocated as block grants, thus providing freedom for municipalities to spend them as they wish. It is also an explicit preference of the Charter that the provision of grants should not remove the basic freedom of local authorities to exercise policy discretion within their own jurisdiction. This does not mean that special subsidies allocated for specific purposes cannot have any place in local government finance. Special grants should be earmarked for projects, concrete tasks or public services that the central government wants to support in this targeted way.

 

Both block and special grants should be distributed in a transparent and predictable way on the basis of clear and unambiguous criteria. The mechanisms for the allocation of state grants and subsidies should be established in co-operation with the national municipal associations in order to take the interests and opinions of local governments into consideration.

 

The Charter also requires that a proportion of local revenues should come from local taxes, and local governments must be able to determine the rate applicable. Although the latter condition is met in Azerbaijan to the extent that local governments may decide what municipal taxes they impose and what tax rates to apply, the local tax revenues provide such a low income that this right is only formal and insignificant in practice. That said, the fact that local governments can determine the rate of some taxes is not consistent with the Charter if they are not able simultaneously to collect taxes in an appropriate manner.

 

As mentioned above, tax-collection mechanisms should be improved at municipal level. This requires not only better and more precise legislation but also makes it necessary to provide municipalities with qualified staff and facilities (buildings, information technology, etc.) in order to ensure an efficient tax collection procedure.

 

As the Charter states, “the protection of financially weaker local authorities calls for the institution of financial equalisation procedures or equivalent measures which are designed to correct the effects of the unequal distribution of potential sources of finance and of the financial burden they must support.” As there is no standardised financial equalisation mechanism for local governments in Azerbaijan, the poorest municipalities are in a detrimental financial situation without any predictable central government budget support. Under these circumstances, they might be in an extremely vulnerable economic position and this could undermine any plausible system of local self-government. Moreover, in the absence of an effective financial equalisation system regional discrepancies cannot be reduced or mitigated in a transparent way.

 

Accordingly, in order to comply with this provision of the Charter, the Azerbaijani authorities should immediately begin to establish an effective and well-designed financial equalisation system. This should be based on the principle of solidarity and apply objective criteria for assigning central budget subsidies to the municipalities in need. It is also important that the procedures and measures applied to financial equalisation must not diminish the discretion that municipalities may exercise with regard to their own powers. Even if the revenues from the equalisation fund can be regarded as extraordinary or special subsidies, this characteristic of the local resources must not justify any central government interference with the freedom of municipalities to deal with local public matters, unless a municipality is in financial difficulties of its own making.

 

As far as additional revenues are concerned, local governments should be given assistance to raise loans as their weak financial potential means they can hardly borrow money on the financial markets. Nonetheless, there are in Council of Europe member states many good practices with regard to the provision of central government support for the financial position of local governments in such a situation, for instance encouraging or setting up municipal development funds or savings banks to provide loans for municipalities.

 

According to the Charter, local governments must be consulted, in an appropriate manner, on the way in which redistributed resources are to be allocated to them. The Congress delegation concluded that the national associations of municipalities are not involved in the decision-making process relating to local government finance in Azerbaijan, and the Azerbaijani authorities should therefore establish an appropriate procedure for consultation on financial matters as soon as possible.

Article 9.2
Financial resources of local authorities - Article ratified

Local authorities' financial resources shall be commensurate with the responsibilities provided for by the constitution and the law.


Consult reply indicated at article 9.1

Article 9.3
Financial resources of local authorities - Article ratified

Part at least of the financial resources of local authorities shall derive from local taxes and charges of which, within the limits of statute, they have the power to determine the rate.


Consult reply indicated at article 9.1

Article 9.4
Financial resources of local authorities - Article ratified

The financial systems on which resources available to local authorities are based shall be of a sufficiently diversified and buoyant nature to enable them to keep pace as far as practically possible with the real evolution of the cost of carrying out their tasks.


Consult reply indicated at article 9.1

Article 9.5
Financial resources of local authorities - Non ratified

The protection of financially weaker local authorities calls for the institution of financial equalisation procedures or equivalent measures which are designed to correct the effects of the unequal distribution of potential sources of finance and of the financial burden they must support. Such procedures or measures shall not diminish the discretion local authorities may exercise within their own sphere of responsibility.


Azerbaijan has declared itself not bound by Article 9(5) and (6) of the Charter. 

Article 9.6
Financial resources of local authorities - Non ratified

Local authorities shall be consulted, in an appropriate manner, on the way in which redistributed resources are to be allocated to them.


Azerbaijan has declared itself not bound by Article 9(5) and (6) of the Charter.

Article 9.7
Financial resources of local authorities - Article ratified

As far as possible, grants to local authorities shall not be earmarked for the financing of specific projects. The provision of grants shall not remove the basic freedom of local authorities to exercise policy discretion within their own jurisdiction.


Consult reply indicated at article 9.1

Article 9.8
Financial resources of local authorities - Article ratified

For the purpose of borrowing for capital investment, local authorities shall have access to the national capital market within the limits of the law.


Consult reply indicated at article 9.1

Article 10.1
Local authorities' right to associate - Article ratified

Local authorities shall be entitled, in exercising their powers, to co-operate and, within the framework of the law, to form consortia with other local authorities in order to carry out tasks of common interest.


The Charter requires the signatory countries to provide for the right for local governments to co-operate and, within the framework of the law, to form consortia with other local authorities in order to carry out tasks of common interest. According to this requirement, each member state has to recognise the entitlement of local authorities to belong to an association for the protection and promotion of their common interests and to belong to an international association of local authorities. Furthermore, local governments must be consulted, insofar as possible, in due time and in an appropriate way, in the planning and decision-making processes for all matters that concern them directly.

 

Self-evidently, the existence of a strong local government system is an indispensable prerequisite for an effective consultation mechanism. Where local autonomy is weak and the local and regional communities are in a vulnerable position vis-à-vis the central government, their ability to represent their own interests is also weak, and in these cases the central government should take initiatives to strengthen the consultation mechanisms.

 

The national associations of municipalities do not play an important role in central policy-making or in representing local interests in Azerbaijan. Many stakeholders claim that they operate only formally without any real effects on development. This was confirmed by NGO’s reports, notably one dedicated to “Enhancing efficiency of services provided by Municipal Associations for the local self-government bodies” but also in the report on “Assessments of conformity of organizational and operational aspects of municipalities in Azerbaijan with principles and requirements of European Charter on local self-government” which states clearly that “Since the establishment of municipal associations in 2006, no initiatives have been taken to further develop municipalities and thus decentralize the administration system. Associations have not demonstrated any considerable initiative in the field of local self-governance development. Associations have not built their work efficiently yet, their activities include collection of membership fees and organization of a few gathering only”.

 

The national associations of municipalities must be able to build competence and the ability to represent their members. Azerbaijan’s central government authorities should strive to enable municipal associations to fulfil their functions, which are to collect, express and represent municipal interests, and national associations should be given sufficient human, technical and financial resources for this purpose. In addition, the consultation mechanisms should be specified in much greater detail in legislation. The central government authorities have broad discretion as to what forms and mechanisms are applied to achieve this goal, but they are strongly advised to place them on a permanent and regular basis, involving all types of municipalities (and their associations).

 

However, since the visit national authorities objected that this information is not correct and stressed on the contrary the important role of national associations in the central policy-making process. National authorities underline, notably that “Representatives of national associations participate in the improvement of legislation related to local self-government issues, submit opinions and proposals, raise issues before state bodies”. Nevertheless, the rapporteurs did not receive any tangible replies from these associations about their concrete participatory rights, their role and their effectiveness in the national policy-making process.

 

Moreover, the central government authorities should provide proper information for local governments and their associations before consultations take place in order to ensure that they are well-informed about the motives, aims and arguments concerning the planned decision or policy. Strategically important decisions must be based on careful analyses of the economic consequences for the local and regional level as well as the implications for self-governance. In the consultation process, municipalities and their associations should be entitled to comment and make suggestions on all legislation and policies affecting the local level. 

Article 10.2
Local authorities' right to associate - Article ratified

The entitlement of local authorities to belong to an association for the protection and promotion of their common interests and to belong to an international association of local authorities shall be recognised in each State.


Consult reply indicated at article 10.1

Article 10.3
Local authorities' right to associate - Non ratified

Local authorities shall be entitled, under such conditions as may be provided for by the law, to co-operate with their counterparts in other States.


170. The Charter requires the signatory countries to provide for the right for local governments to co-operate and, within the framework of the law, to form consortia with other local authorities in order to carry out tasks of common interest. According to this requirement, each member state has to recognise the entitlement of local authorities to belong to an association for the protection and promotion of their common interests and to belong to an international association of local authorities. Furthermore, local governments must be consulted, insofar as possible, in due time and in an appropriate way, in the planning and decision-making processes for all matters that concern them directly. 171. Self-evidently, the existence of a strong local government system is an indispensable prerequisite for an effective consultation mechanism. Where local autonomy is weak and the local and regional communities are in a vulnerable position vis-à-vis the central government, their ability to represent their own interests is also weak, and in these cases the central government should take initiatives to strengthen the consultation mechanisms. 172. The national associations of municipalities do not play an important role in central policy-making or in representing local interests in Azerbaijan. Many stakeholders claim that they operate only formally without any real effects on development. This was confirmed by NGO’s reports, notably one dedicated to “Enhancing efficiency of services provided by Municipal Associations for the local self-government bodies” but also in the report on “Assessments of conformity of organizational and operational aspects of municipalities in Azerbaijan with principles and requirements of European Charter on local self-government” which states clearly that “Since the establishment of municipal associations in 2006, no initiatives have been taken to further develop municipalities and thus decentralize the administration system. Associations have not demonstrated any considerable initiative in the field of local self-governance development. Associations have not built their work efficiently yet, their activities include collection of membership fees and organization of a few gathering only”.1 173. The national associations of municipalities must be able to build competence and the ability to represent their members. Azerbaijan’s central government authorities should strive to enable municipal associations to fulfil their functions, which are to collect, express and represent municipal interests, and national associations should be given sufficient human, technical and financial resources for this purpose. In addition, the consultation mechanisms should be specified in much greater detail in legislation. The central government authorities have broad discretion as to what forms and mechanisms are applied to achieve this goal, but they are strongly advised to place them on a permanent and regular basis, involving all types of municipalities (and their associations). 174.  However, since the visit national authorities objected that this information is not correct and stressed on the contrary the important role of national associations in the central policy-making process. National authorities underline, notably that “Representatives of national associations participate in the improvement of legislation related to local self-government issues, submit opinions and proposals, raise issues before state bodies”. Nevertheless, the rapporteurs did not receive any tangible replies from these associations about their concrete participatory rights, their role and their effectiveness in the national policy-making process. 175. Moreover, the central government authorities should provide proper information for local governments and their associations before consultations take place in order to ensure that they are well-informed about the motives, aims and arguments concerning the planned decision or policy. Strategically important decisions must be based on careful analyses of the economic consequences for the local and regional level as well as the implications for self-governance. In the consultation process, municipalities and their associations should be entitled to comment and make suggestions on all legislation and policies affecting the local level. 176. Azerbaijan has declared itself not bound by Article 10(3) of the Charter (see 12.8 below).
Article 11
Legal protection of local selfgovernment - Article ratified

Local authorities shall have the right of recourse to a judicial remedy in order to secure free exercise of their powers and respect for such principles of local self-government as are enshrined in the constitution or domestic legislation.


Consult reply indicated at article 10.1

Article 12.3
Undertakings - Non ratified

Any Party may, at any later time, notify the Secretary General that it considers itself bound by any paragraphs of this Charter which it has not already accepted under the terms of paragraph 1 of this article. Such undertakings subsequently given shall be deemed to be an integral part of the ratification, acceptance or approval of the Party so notifying, and shall have the same effect as from the first day of the month following the expiration of a period of three months after the date of the receipt of the notification by the Secretary General.


177. As discussed earlier, Azerbaijan has made some reservations concerning the scope of the European Charter of Local Self-Government and stated that it is not bound by Article 4(3), Article 7(2), Article 9(5) and (6) and Article 10(3) of the Charter. The Congress delegation is convinced that Azerbaijan is currently failing to comply fully with these provisions of the Charter (as in the case of some other provisions) and consequently believes that the maintenance of these reservations could be justified. Nevertheless, as the proposals in this report show, the Azerbaijani authorities are strongly advised and encouraged to draw up and implement comprehensive decentralisation reforms that may lead to the withdrawal of all these reservations. 178. The representatives of the Minister of Justice informed the delegation that several state bodies had been instructed to submit proposals on the possibility of Azerbaijan’s accession of to the relevant articles of the Charter and that the matter would be considered in the near future. The rapporteurs welcome this positive information brought to their attention during the visit and will closely follow further developments in this respect. 179. At the same time, the representatives of the Minister of Justice added that it should be noted that, despite the fact that the Republic of Azerbaijan had not yet acceded to paragraph 3 of Article 10 of the Charter, certain measures had been taken towards its implementation. For example, the Law of 25 October 2011 had inserted a new paragraph into the Law on the Status of Municipalities providing for the right of municipalities and their associations, as agreed with the Ministry of Foreign Affairs, to conclude co-operation agreements with foreign local government bodies and to become members of specialised organisations of local government bodies.
Article 12.2
Undertakings - Non ratified

Each Contracting State, when depositing its instrument of ratification, acceptance or approval, shall notify to the Secretary General of the Council of Europe of the paragraphs selected in accordance with the provisions of paragraph 1 of this article.


177. As discussed earlier, Azerbaijan has made some reservations concerning the scope of the European Charter of Local Self-Government and stated that it is not bound by Article 4(3), Article 7(2), Article 9(5) and (6) and Article 10(3) of the Charter. The Congress delegation is convinced that Azerbaijan is currently failing to comply fully with these provisions of the Charter (as in the case of some other provisions) and consequently believes that the maintenance of these reservations could be justified. Nevertheless, as the proposals in this report show, the Azerbaijani authorities are strongly advised and encouraged to draw up and implement comprehensive decentralisation reforms that may lead to the withdrawal of all these reservations. 178. The representatives of the Minister of Justice informed the delegation that several state bodies had been instructed to submit proposals on the possibility of Azerbaijan’s accession of to the relevant articles of the Charter and that the matter would be considered in the near future. The rapporteurs welcome this positive information brought to their attention during the visit and will closely follow further developments in this respect. 179. At the same time, the representatives of the Minister of Justice added that it should be noted that, despite the fact that the Republic of Azerbaijan had not yet acceded to paragraph 3 of Article 10 of the Charter, certain measures had been taken towards its implementation. For example, the Law of 25 October 2011 had inserted a new paragraph into the Law on the Status of Municipalities providing for the right of municipalities and their associations, as agreed with the Ministry of Foreign Affairs, to conclude co-operation agreements with foreign local government bodies and to become members of specialised organisations of local government bodies.
Article 12.1
Undertakings - Non ratified

Each Party undertakes to consider itself bound by at least twenty paragraphs of Part I of the Charter, at least ten of which shall be selected from among the following paragraphs:

 

– Article 2,

– Article 3, paragraphs 1 and 2,

– Article 4, paragraphs 1, 2 and 4,

– Article 5,

– Article 7, paragraph 1,

– Article 8, paragraph 2,

– Article 9, paragraphs 1, 2 and 3,

– Article 10, paragraph 1,

– Article 11.


177. As discussed earlier, Azerbaijan has made some reservations concerning the scope of the European Charter of Local Self-Government and stated that it is not bound by Article 4(3), Article 7(2), Article 9(5) and (6) and Article 10(3) of the Charter. The Congress delegation is convinced that Azerbaijan is currently failing to comply fully with these provisions of the Charter (as in the case of some other provisions) and consequently believes that the maintenance of these reservations could be justified. Nevertheless, as the proposals in this report show, the Azerbaijani authorities are strongly advised and encouraged to draw up and implement comprehensive decentralisation reforms that may lead to the withdrawal of all these reservations. 178. The representatives of the Minister of Justice informed the delegation that several state bodies had been instructed to submit proposals on the possibility of Azerbaijan’s accession of to the relevant articles of the Charter and that the matter would be considered in the near future. The rapporteurs welcome this positive information brought to their attention during the visit and will closely follow further developments in this respect. 179. At the same time, the representatives of the Minister of Justice added that it should be noted that, despite the fact that the Republic of Azerbaijan had not yet acceded to paragraph 3 of Article 10 of the Charter, certain measures had been taken towards its implementation. For example, the Law of 25 October 2011 had inserted a new paragraph into the Law on the Status of Municipalities providing for the right of municipalities and their associations, as agreed with the Ministry of Foreign Affairs, to conclude co-operation agreements with foreign local government bodies and to become members of specialised organisations of local government bodies.

ACCESSION

to the Council of Europe

RATIFICATION

of the European Charter of Local Self-Government

CONSTITUTION | NATIONAL LEGISLATION

The relevant chapter of the Constitution (Chapter VIII) and the corresponding provisions of the Law on the Status of Municipalities do not fully meet the requirements of the Charter since they do not recognise local authorities as part of the state organisation system and do not acknowledge the right of local governments to regulate and manage a substantial proportion of local public affairs.



24Ratified provision(s)
0Provision(s) with reservation(s)
9 Non ratified articles
0Compliant article
8Partially Compliant Articles
16Non-compliant Provision(s)