2 Legislation and Government Policy
2.1 International Conventions
The countries pursuing protection of rights as a rule are signatories to the Universal Declaration of Human Rights (1948), Article 3 of which guarantees to every individual “the right to life, liberty and security of person”. Equally, Article 4 of the Declaration on the Elimination of Violence against Women (1993) calls on States to “pursue by all appropriate means and without delay a policy of eliminating violence against women”. Another international document, the Beijing Declaration and Platform for Action (1995) in Article 112 reaffirms that “violence against women is an obstacle to the achievement of the objectives of equality, development and peace”. And at last, the Council of Europe (CoE) member states reiterate their commitment to end violence against women by signing or ratifying the Istanbul Convention (2011).
All forms of violence against women occur in the context of de-facto and de jure discrimination against women and against the background of the acceptance of lower status of women in society. This situation is further exacerbated by the barriers that women face in seeking effective legal protection from the state, which is well embedded in the local legislation as well as international treaties Azerbaijan had signed.
Newly independent Azerbaijan signed up to a number of supranational initiatives and conventions on tackling gender equality, including 1995 UN Convention on Elimination of All kinds of Gender Discrimination (CEDAW) and its Optional Protocol in 2000.
According to these international documents, states are required to take due diligence actions to prevent, investigate punish and provide remedies for human rights violations, including the ones perpetrated by the private parties. Women are protected against violence as a fundamental human right, applicable to all men and women equally as provided by the international instruments drawn to provide for security, liberty, integrity and dignity of all human beings.
Along with CEDAW, Azerbaijan has become a state party to a range of international human rights treaties such as the Convention on the Rights of the Child, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of Persons with Disabilities, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Azerbaijan has also ratified regional treaties including the European Convention on Human Rights (ECHR) and the European Social Charter (revised). As mentioned above, Azerbaijan has not yet signed or ratified the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention).
The Constitution of the Republic of Azerbaijan (the Constitution) stipulates that international treaties are also an integral part of Azerbaijan’s legal system and have
superiority over the national normative legal acts (with the exception of the Constitution).
The international documents as an integral part of the legislation of the Republic of Azerbaijan have a direct legal force. At the same time, there are international documents that propose specific mechanisms to combat domestic violence. One such document is the Istanbul Convention adopted by the Council of Europe on May 11, 2011, during a meeting in Istanbul. This document entitled "Prevention and Combating Violence Against Women and Domestic Violence," came into force on August 1, 2014. Of the 47 member-states of the Council of Europe, 46 have signed, of those 34 ratified the Convention, while the Republic of Azerbaijan has neither signed nor ratified the Convention.
Thus, some provisions of Istanbul Convention impose the obligation of investigating, registering, and providing shelter for victims of domestic violence on the state. In particular, the Convention defines specific acts such as harassment, forced marriage, female circumcision, forced abortion, and forced discrimination as criminal. The Convention prohibits all forms of discrimination against women. The document states that achieving equality between women and men in law and practice is a prerequisite for ending violence against women. Azerbaijani Government refuses to sign the Convention pointing out to some issues pertaining in the Convention as contradicting to material and moral values upheld in Azerbaijan, thus, using them as grounds for not joining the Convention.
Applicable domestic laws
Domestic legislation governing this area of rights is supported by the Article 17 of the Constitution, which states that the family is the core of the society and thus is under the special protection of the state. It is the parents' responsibility to care for and raise children. The state controls the implementation of this obligation.
The Constitution provides for the right for equality and prohibits the restriction of rights and freedoms on multiple grounds, gender being one of them.
Thus, Article 25 and Article 31 of Section 3 of the Constitution provides for equality, freedom of movement, and the right to a safe life. Article 32 of the Constitution provides for the right of personal immunity. As stated in Article 34. 2 the right to marriage (as stated in paragraph II, that the marriage is concluded on the basis of voluntary consent. No one can be forced to marry. At the same time, Article 34.4 recognizes equality of the husband and wife. The right to social protection is provided in the Article 38, the protection of rights and freedoms in Article 60 and the right for protection of honor and dignity in Article 46.
The Law of the Republic of Azerbaijan on Gender Equality was adopted in 2006 and it provides definitions of the concepts of gender equality and non-discrimination. In 2009 Azerbaijan started the discussion of the draft law On Prevention of Domestic Violence.
The law defined and regulated actions aimed at prevention of violence committed through abuse of close relative relations, or current or past cohabitation and its negative legal, medical and social outcomes; provision of legal assistance and social protection of persons aggrieved from domestic violence in compliance with the international standards; as well as eradication of conditions giving rise to domestic violence.
The adoption of the Law of Azerbaijan on Prevention of Domestic Violence (the Law) in 2010 was one of the progressive steps taken for achieving the necessary level of protection of women’s rights and prevention of violence and discrimination against women.
Even though this Law provides recourse for women to seek justice when facing violence from their husband or others in a close relationship, women continue to confront a number of cultural, social, and economic barriers to exercise their right to live free of violence and take steps to remove themselves, and their children, from such situations.
Law on the Prevention of Domestic Violence is a legislative act that directly regulates the area of law as related to domestic violence. This law provides for the basic principles for the prevention of domestic violence, defines the procedure for handling complaints, and the specific mechanisms for issuing protection orders to victims of domestic violence.
Additionally, a number of acts adopted by the President of the Republic of Azerbaijan and the Cabinet of Ministers can be considered as a legal framework for the prevention of domestic violence.
Among them are the decree of President of the Republic of Azerbaijan dated 1 October 2010, on the enforcement of the “Law on Prevention of Domestic Violence", Regulations of the Cabinet of Ministers dated December 19, 2011 on " Registration of individuals perpetrating domestic violence and preventive measures against these individuals”, Decision on “Establishment and maintenance of the database on domestic violence” dated February 24, 2012 , “Rules on consideration of complaints in the cases not involving criminal act of domestic violence” dated April 25, 2012 as well as decisions on “Activities of the Center for Assistance to the Victims of Domestic Violence” and “ Rules and the Regulation of Accreditation of Non-Governmental Aid Centers for Victims of Domestic Violence”.
On June 24, 2011, a law was adopted to amend the Code of Civil Procedure of Azerbaijan Republic. Along with the new amendments, Chapter 40.1 of the Code regulates the process of issuing a long-term security order to a victim of domestic violence.
Article 158 of the Administrative Procedure Code , approved by the Law of the Republic of Azerbaijan dated December 29, 2015, establishes liability for violation of legislation on prevention of domestic violence. In addition to those, Article 157 of the Administrative Violation Code allows application of penalties in cases of domestic violence involving physical violence.
Shortcomings of the legislation
However, there are several shortcomings of the legislation on domestic violence and its implementation. Although the legislation of the Republic of Azerbaijan provides for a number of provisions related to domestic violence, the law still contains legal gaps. An example of this is the Law on Prevention of Domestic Violence, which is the main legislative act aimed at combating domestic violence.
Thus, Article 5.1 of the Law on Domestic Violence defines that the cases brought up in the complaint regarding the domestic violence crimes that are already committed or are being in the process of planning to be committed shall be considered in accordance with the legislation on criminal procedure. However, the Criminal Procedure Code of Azerbaijan Republic does not specify investigation procedures related to domestic violence. Also, the Criminal Code does not recognize domestic violence as separate criminal acts, nor does the Criminal Code take into account crimes associated with domestic violence as aggravating.
Another gap in the law is the provision of short-term and long-term warrants/orders. Thus, Article 10.1 of the Law on Domestic Violence states that a victim may be issued short-term or long-term protection orders. Article 11.1 of the same Law states that if the actions of the person who committed domestic violence do not contain criminal liability, but the rights and legal interests of the victim are violated, then the relevant executive body may decide to issue a short-term protection order to the victim with providing a written warning to the perpetrator not to repeat the same or similar acts. According to Article 12.1 of the Act, if the person committing an act of domestic violence fails to comply with the warning, the relevant executive authority or the victim have the right to apply to the court for a long-term protection order.
Thus, short-term security orders are issued by the relevant executive authorities, and long-term security orders are issued by the courts. However, having looked at the legislative practice of other countries, as well as the implementation of this law, it becomes obvious that issuing such orders by the executive authorities might bring to some disagreeable consequences. In the practice of other countries, these orders are issued by the courts at any time, and the decisions are immediately sent to law enforcement agencies. However, in Azerbaijan there is no provision allowing to challenge in the courts the refusal of executive authorities to issue such orders or their actions in encouraging victims to reconcile with their aggressors for the sake of keeping the family together. The legislation should be amended in this regard, and in any case, the power to issue security orders should be assigned to the courts. Relevant executive bodies instead should be given the authority to take certain protective measures for the victim (such as providing shelter, security, short-term financial support, etc.).
Azerbaijan’s Criminal Code provides for a maximum penalty of 15 years for rape and violent actions of a sexual nature. Unlike the international norm when sexual assault should be assessed based on the lack of consent, in the local legislation it is considered a crime based on the use of physical force. Prosecution of a sexual assault places the burden of proof on the victim, while the victim’s testimony alone is not sufficient as evidence. This discriminates against the victim because sexual assaults often happen in private. In contrast, prosecution of other offenses, such as common assault, may rely only on victim’s testimony.
This difference suggests that victims in trials of sexual offenses are viewed as a particularly unreliable class of witness. Such a provision discriminates against women and reduces the likelihood of victims of sexual assault coming forward to report the crime. To better protect women from sexual violence, the laws need to be amended with provisions on the burden of proof that will increase the likelihood of women reporting sexual assaults, including allowing persecutions based on the victim’s testimony. The criminal code also needs to be updated by creating statutory definitions of what constitutes consent or lack of consent to sexual intercourse and by adding definitions that explicitly recognize marital rape.
Sexual harassment is defined under the Law on Gender Equality as “immoral behavior humiliating and abusing a person of the opposite gender, comprising physical acts (touching, hand touching), offensive remarks, gestures, threats, dishonorable advances and offers of employment in exchange for sexual acts.” However, this provision is not often applied.
Government policies and implementation of laws
Framing of domestic violence as a policy problem rather than private matter of the household had not made space in Azerbaijan, which inherited the traditional approach from the decades of Soviet ruling. This private-public divide goes back to the specifics of Soviet legal system with the family civil law that upheld the norms of patriarchal and traditional views of the communities. The shift toward understanding of domestic violence as an issue of public policy, rather than the domestic domain, had been formally endorsed in some legislative initiatives and political statements, yet it did not translate into the policies, practice or a shift in mentality in the country.
Apart from the family of the law-enforcement bodies, the state agency entrusted with promoting gender policy and reaction to domestic violence, is the State Committee for Family, Women and Children Affairs (SCFWCA). As declared by the Committee itself, its main policies are to strengthen implementation of the law on domestic violence: conducting training courses for representatives of relevant government offices of the regions, law enforcement agencies, municipalities, executive and public organizations, and from the monitoring groups on gender violence and violence against children.
Additionally, it is determined to strengthen the role of public authorities and civil society in eliminating harmful ideological beliefs, combating gender stereotypes, and promoting services to provide psychological and social support to families. The Committee also announced plans to create an institute on family psychology mandated to strengthen the education of psychologists to address these issues and increase the level of services to families affected by domestic violence. Awareness raising is another important task of the Committee, i.e. to provide regular training for television and radio broadcasters and print media people to improve the frequency and quality of reporting on domestic violence.
Cases are referred to legal institutions only when the consequences are very severe, such as when serious physical injury, hospitalization, or death occurs. Repeated physical violence, intimidation and threats, forced sexual relationships, economic constraints, and other forms of violence are kept hidden by victims who are afraid of either stigma or reprisal from their abuser or family members.
Women are still reluctant to report violence to the criminal justice system. Many men and women are uncomfortable with violence and potentially ready to intervene, few actually turn to official structures to do so. Reporting to male police officers is very seldom yielding results. The Ministry of Internal Affairs, the main state law enforcement agency to prevent and protect in the matters of domestic violence, has been making efforts to increase the number of women officers. However, the number of women working in senior management positions is low and fewer women officers are posted in rural areas.
It is difficult to assess the impact of enforcement of the laws as the statistics on this issue are not reliable at least because most victims of domestic violence do not go to the police. It is often observed that women who apply for police protection are often not taken seriously, ridiculed, and forced to mend with the abusive husbands. Only when the victim reports the incident together with a lawyer the problem gets acknowledged as a serious one. The police only then attempt to investigate, takes necessary steps and makes sure the law is enforced.
The court has the right to reconcile the parties, but sometimes it seeks to reconcile them even after establishing there was a violence, instead of investigating and punishing the perpetrator. Moreover, the court often puts pressure on the victims, convincing them that arresting and convicting the husband is wrong, raising children without the father is not right and trying to convince the victims to make peace with the aggressors and withdraw the complaint.
The courts and police put psychological pressure on the victim accusing her that her complaint could lead to the arrest, conviction of her husband and father of her children. This happens when the cases are considered without the lawyers, in the presence of the counsel the court refrains from such actions.
Very often victims also reach out to other government agencies. For example, the office of the President or the Prosecutor's office. Such appeals usually take longer and, in the end, however, no results are achieved. Government agencies provide standard answers, either referring the victims to the police or the prosecutor's office for investigation, or telling the victims to address with the complaint to the court.