1. How to be?  

The concept of human rights is a central feature in the relationship between an individual and a nation state. Constitutionalism puts two main types of limits on state power:

1) The establishment of a scope of authority for state power bodies;

2) The recognition of human rights and their reference in a special document.

Currently, three generations of rights and freedoms are distinguished:

-First generation human rights are civil and political rights (late 18th to the 19th century and after World War II);

- Second generation human rights are socio-economic rights (after the second half of the 19th century);

-Third generation human rights are rights to racial non-discrimination and collective development (1960s and1970s).

One of the guarantees of limited government is 'first generation' rights (civil and political rights). The enshrinement and practical application of these rights in the Constitution prevents authoritarianism, totalitarianism and the tyranny of the majority.

Any state power is inevitably prone to corruption. In this regard, there should be means of countermeasures that serve to limit state power. While human rights can act as a countermeasure to limit state power, this guarantee takes on an imaginary character in the absence of practical enjoyment of human rights.

For the practice of human rights, it is important, first of all, to recognize them clearly and explicitly in the Constitution. But after that, the issue of human rights at the legislative level, especially the possible restrictions imposed on it, should be more clearly stated or detailed. And one of the guarantees of human rights is an independent judicial institution to address possible disputes concerning human rights.

In this regard, the following are absolute conditions for the effective exercise of human rights:

- Clear expression in the Constitution;

- Detailed legislative regulation;

- Independent judicial enforcement;

- Political will for the transition period.

In addition, social and economic rights as well as non-discrimination provisions are reflected in modern constitutions. Therefore, those rights should be reflected in the new Constitution. However, their perspective of a judgment is controversial. Because social rights are specified in general in the Constitution. Its details are increasingly fitting into the guarantee of the political will of the state and legislative activities stemming from it. But the situation with the judicial perspective of social rights remains controversial.

It is also important to add that the Republic of Azerbaijan should continue to accede to the international human rights treaty system and assume human rights obligations as an international commitment. That may serve as an auxiliary tool in effectively ensuring the observance of human rights by drawing the engagement of the international system.

Civil and political rights are essentially negative ones. Their essence is that the state should refrain from interfering with rights (freedoms)). However, contemporary realities dictate that certain positive rights must also be present. (That is, the state should take certain measures to ensure these rights,s such as a judicial system to administer justice, an effective electoral system for free elections, a fair mechanism for investigating torture and other cases, etc.) Therefore, there should be some balance of positive and negative rights.

2.  What to change? 

The incumbent government (here meaning the power that has been legitimately and practically ruling the Republic of Azerbaijan since June 15, 1993, and this term includes both executive and legislative power) has formally assumed the responsibility of ensuring civil and political freedoms as both the constitutional and international legal obligations. Thus, Chapter III of the Constitution adopted by the government in 1995 gives an extensive list of civil and political rights and freedoms, defining the protection of these rights.

In addition, Azerbaijan has been a party to the International Covenant on Civil and Political Rights (ICCPR) since 1992 and the present government ratified the European Convention on Human Rights (ECHR) in 2002. At the same time, it should be noted that Azerbaijan has adopted a legislative framework to ensure civil and political freedoms or made significant amendments to previously adopted laws (e.g., the Law on Freedom of Assembly, the Law on Mass Media, the Law on Freedom of Religion, the Law on Political Parties). Also, with the adoption in 2002 of the Constitutional Act on the Regulation of the Exercise of Human Rights and Freedoms in the Republic of Azerbaijan, steps were taken to bring the regulation of human rights and freedoms into line with the ECHR (however, this constitutional act created a confused situation with regard to the regulation of human rights and freedoms by establishing stricter restrictions than the restrictive mechanism provided for in the Constitution).

With the establishment of the Azerbaijan Commissioner for Human Rights (Ombudsman) in 2002, an independent public institution was founded to monitor the human rights and freedoms situation. 

It is thus laid down that the government of Azerbaijan at the formal level assumes constitutional-legal and international-legal obligations with regard to human rights and freedoms. But the practical state of civil and political freedoms is deplorable. Thus, a number of authoritative international organizations have long established that the violation of human rights in the Republic of Azerbaijan is grave and systematic (see, for example, 1, 2, 3).  

Local independent non-governmental organizations have also confirmed the definitions of the international organizations. Note also that the European Court of Human Rights and even in a number of cases the UN Human Rights Committee have made and are making decisions on human rights violations by the Government of Azerbaijan. However, in reality, the Government of Azerbaijan allows a consistent pattern of human rights violations.

Human rights violations occurring in the Republic of Azerbaijan are not individual, but are systemic, structural and regular. The systematic violation refers to the widespread nature of human rights. The structural violation means that these violations are typical for the activities of state bodies and occur as a result of such activities. Regular violations of human rights means that these violations are becoming a normal part of everyday life. The violations occurring in the Republic of Azerbaijan meet the above-mentioned characteristics.

In addition, the human rights violations that occur are both de jure and de facto. Thus, they occur either due to the establishment of certain restrictions in the law (de jure violations, such as website blocking) or due to the improper implementation of laws in practice (de facto violations, such as the ill-treatment by the police at the dispersal of rallies).

It should be noted that restrictions on civil and political freedoms or violations of civil and political freedoms are illegitimate. These restrictions and violations are used for purposes such as preventing criticism of the incumbent government, preventing democratic and peaceful changes of power, suppressing people's protests, suppressing activities aimed at exposing deep-rooted corruption, and similar purposes.

The listed purposes are not grounds for legitimate restrictions on human rights (protection of public order, protection of the rights and interests of others, ensuring public health, etc.). Thus, restrictions on civil and political freedoms are illegitimate.

While restrictions on human rights were more de facto between 1996 and 2009, there has been a trend of increased de jure restrictions since 2009. Consequently, in terms of human rights restrictions and obligations, the Government of Azerbaijan has also recently begun to retreat from its formal obligations or sending signals in that regard. Thus, the state of human rights in Azerbaijan (or civil and political freedoms for the purposes of this paper) can be summarized as follows:

- The Government of Azerbaijan has assumed formal constitutional and international legal obligations on human rights, but recently (especially since 2009) there has been a tendency of derogation from formal obligations; 

- In practice, human rights violations occur consistently and are systemic (large-scale), structural and regular in nature;

- Restrictions on human rights are of a political nature, they do not stem from the objective of protecting a democratic society and therefore have an illegitimate purpose.

3. How to change it? 

Third Republican Platform sets the following goals regarding civil and political freedoms (human rights):

1) The new Constitution that will establish human rights and limits on governmental power;

2) The legislative framework that will define in detail the possible restrictions imposed on human rights;

3) Adherence to international obligations on human rights and political will of the transitional period;

4) Independent judicial provision for human rights disputes;

5) Studying international good practices for practical implementation and drafting detailed instructions for state authorities.

Mechanisms: Our goal is to optimize civil and political liberties. We understand that in the conditions of existence of the state, human rights violations will inevitably occur. Therefore, one of our goals is to establish a consistent legal mechanism (either tribunal courts or non-tribunal ombudsman institution) that responds to human rights violations.

We also realize that this mechanism should not be purely formal and theoretical. The mechanism to be established must be effective in practice. The mechanism should not be based on subjective, but objective guarantees. In this regard, the existence of independent and autonomous courts is a basic guarantee of human rights.

Independent judicial reform should be conducted in line with UN and Council of Europe standards and sound international experience. At the same time, the independence of non-tribunal institutions is important in terms of quick reaction to allegations of human rights violations. Therefore, we deem it necessary to create a truly independent ombudsman institution. To this end, we will seek to achieve the establishment of an independent public institution of human rights defenders in the context of the commitment to the Paris Principles.

Norms: Another guarantee of implementation of civil and political freedoms is the presence of clear and defined norms (rules). To that end, we believe it is necessary to develop a new Constitution and a new legislative framework on the basis of this Constitution. (True, a new Constitution is important not only for the purpose of enjoying human rights, but also providing a framework for governmental authority and should serve this purpose.) However, an enumeration of human rights alone cannot be considered sufficient. This is also available in the current state. A key issue is to clarify in which cases human rights can be restricted. It will not be possible to ensure respect for human rights without clarifying it and specifying bases for this restriction. To this end, there should be defined restriction norms that can work in practice and are based on positive international experience.

Instructions: in practice, there should be explicit instructions for state bodies (administrative bodies) and officials for their implementation and these instructions should be updated on a regular basis. Similar instructions should also be established for courts (in accordance with the judiciary's autonomy, such instructions should be adopted by the judicial self-governing body).

Goodwill and political will:  The new government should have goodwill and firm political will to effectively implement civil and political liberties, taking into account long-term human rights violations.

If the above elements (mechanisms, norms, instructions, intentions) are taken together, it will become possible to ensure not only the formal but also effective and best practical realization of civil and political freedoms.

To achieve these guarantees, we put forward the following propositions:

A- At the level of legal regulation:

* Adoption of a new Constitution;

* Bringing civil and political freedoms in line with the principles and practice of international law.

B at the level of practical application:

* Inadmissibility of illegitimate interventions.