JURIST Senior Editor Sarah Paulsworth, University of Pittsburgh School of Law Class of 2013, is a Boren Fellow and has lived and worked in Azerbaijan. She writes about the impermissible pressure Azerbaijan's Lawyers' Collegium exerts on independent lawyers who defend dissidents, human rights activists and journalists...
he past several months have seen a drastic increase in the amount of pressure exerted on Azerbaijan's small cadre of independent lawyers. These lawyers carry out vital work in Azerbaijan, defending clients that most lawyers in the country loathe, including dissidents, human rights activists and journalists. Furthermore, these individuals are instrumental in facilitating the submission of Azeri citizens' cases to the European Court of Human Rights (ECHR). These cases have shined an international spotlight on Azerbaijan's manifold human rights violations. As of January 1, 2011, the ECHR issued 42 judgments against Azerbaijan, 38 of which were violation judgments. Another 1,254 cases were still pending against Azerbaijan at the time.
Azerbaijan's Bar Association, also known as the Lawyers' Collegium, is one of the major mechanisms through which Azerbaijan's independent lawyers are harassed. As in most republics of the former Soviet Union, criminal defense in Azerbaijan is monopolized by the Collegium. Pursuant to Article IV, § 1 of Azerbaijan's Law on Lawyers and Lawyerly Activities, only members of the Collegium can participate in "lawyerly activities." These activities are defined in Article IV, § 2 as "defending people accused or convicted of committing a crime, representing people who have filed cassation complaints related to civil cases with the Republic of Azerbaijan's Supreme Court, and representing complainants in cases of alleged rights and freedoms violations before that Republic of Azerbaijan's Constitutional Court." Therefore, lawyers that are the subject of disciplinary action, which results in the temporary or permanent suspension of their Collegium membership, are severely restricted in the scope of their work and completely excluded from filing the appeals typically required to take a case before the ECHR under Article 35, § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms [PDF].
If the Lawyers' Collegium were an independent entity that issued objective decisions on disciplinary issues, this would not be problematic. However, the Collegium is closely linked to the will of Azerbaijan's ruling regime. The International League for Human Rights stated in a report published in 1999 that:
Although the Ministry of Justice does not micromanage the day-to-day operations, the Collegium leadership knows what is politically acceptable to the Presidential Administration and the Ministry of Justice. The leadership toes the line and ensures that the lawyers it controls stay in line as well. When it does not, a phone call from above can quickly energize the Collegium leadership into action.
While the report may appear outdated, it was, however, cited by both the Organization for Security and Cooperation in Europe and the American Bar Association Rule of Law Initiative in reports published in 2005. Furthermore, the US Department of State (DOS) characterized the Collegium
as "government-controlled" in its 2010 Human Rights report on Azerbaijan
On September 16, 2011, Azerbaijan's Lawyers' Collegium adopted a decision to expel lawyer Elchin Namazov. According to the decision issued by the Collegium's Disciplinary Commission, Namazov violated ethical standards in an August 27 hearing in which he acted as defense counsel for several activists, who were arrested earlier in the year during highly contentious protests. During the hearing, Namazov introduced a petition to have the pre-trial detention of his client, Rufat Hajibeyli, replaced with house arrest. After the court refused the request, Namazov introduced a formal protest, claiming that the court was acting in an unjust manner. The court subsequently rejected the protest and an argument broke out in the courtroom. According to Namazov, the court's refusal to even consider the protest contravenes Azeri law. Nonetheless, due to the argument, the judges announced a recess and, upon returning, they declared that a criminal case would be launched against Namazov pursuant to Article 289 of the Criminal Code for "disrespecting the court." Additionally, the court removed Namazov from the case and initiated proceedings to expel him from the Collegium. Namazov also defended many other high-profile clients, including imprisoned youth activist Bakhtiyar Hajiyev, Islamic Party member Haji Zulfigar Mikayilov, who is accused of plotting a coup, and Azer Jabiyev, another religious figure who was convicted of hooliganism involving the use of weapons. Namazov has filed a complaint in court challenging his expulsion.
The Collegium is also currently reviewing a complaint against Aslan Ismayilov, which stems from an incident in which Ismayilov allegedly behaved rudely towards a client at his law firm. On September 16, the Collegium's Presidium decided to return the complaint to the Collegium's Disciplinary Commission for further investigation. Ismayilov holds that the complaint is the result of political pressure. The complaint against Ismayilov appeared after he filed a lawsuit against several high-ranking government officials, including presidential administration chief Ramiz Mehtiyev and Chief Prosecutor Zakir Garalov, for the confiscation of factories belonging to the Zulfigar brothers, religious figures that are currently imprisoned on charges of planning a violent coup.
In mid-September, lawyer Elchin Sadigov reported being contacted by Deputy Chair of the Collegium, Farhad Najafov, who informed him that an individual named Bayram Aliyev had filed a complaint with the Collegium against him. Although Sadigov does not know, and has never met, anyone by the name Bayram Aliyev, Sadigov was required to provide the Collegium with records documenting his work over the past year, and continues to be the subject of an ongoing investigation. Sadigov has characterized the investigation as part of a recent campaign of pressure against lawyers that take on issues and clients deemed to be subversive. In the past, Sadigov has litigated cases on behalf of Azadliq Newspaper Editor-in-Chief Ganimat Zahid, wrongfully imprisoned newspaper editor Eynulla Fatullayev, journalist Agil Khalilov, who was forced to leave Azerbaijan after witnessing and reporting on the illegal acts of a National Security Ministry official, and defendants in several other high-profile cases.
On August 24, 2011, Azerbaijan's Lawyers Collegium issued a decision prohibiting Khalid Bagirov from carrying out "lawyerly activities" for one year. The decision was based on a complaint filed by Baku City Police Chief Rafig Abbasov which accused Bagirov of violating Azerbaijan's law governing the conduct of lawyers. Prior to his year-long expulsion, Bagirov was involved in a number of contentious cases, including that of Elvin Askerov, who died while in police custody of severe head injuries reportedly inflicted by the police, and imprisoned human rights activist, Vivadi Iskanderov.
In February 2011, the Collegium issued a decision to expel Osman Kazimov. The decision was based on a complaint filed by Rustam Usubov, first deputy to Azerbaijan's Chief Prosecutor. The case stems from an incident in which Kazimov refused to sign the protocol of a questioning session because the investigator misrepresented his client's statements. The Chief Prosecutor's Office interpreted the refusal as a failure to provide representation to the accused, a violation of Azerbaijan's law governing the conduct of lawyers and the nation's criminal procedure code, filed a complaint with the Collegium, which resulted in Kazimov's expulsion and a lawsuit. In July, the decision to expel Kazimov from the Collegium was abolished in a settlement agreement reached in Baku's Binegedi Court. Kazimov has represented Ganimat Zahid, who was a victim of wrongful imprisonment and the subject of countless lawsuits, numerous activists and officers from the Musavat opposition party and many other dissidents and victims of human rights violations.
The repression of independent lawyers in Azerbaijan has caused an international outcry. The trend represents a serious barrier to justice, and a particularly significant one in the area of human rights. According to the DOS's 2010 Human Rights Report, there was, at the time of publication, only 768 collegium members, and only an estimated 415 members were actually practicing. Access to licensed legal representation was particularly restricted outside the capital, Baku. In 2010, the Council of Europe also produced a report on European judicial systems that indicated there were only nine lawyers per 100,000 inhabitants of Azerbaijan, giving Azerbaijan the lowest lawyer to inhabitant ratio in the entire Council of Europe (although Scotland's statistic appears lower, at four lawyers per 100,000 people, the country also utilizes legal advisors, unlike Azerbaijan. Scotland has 203.6 legal advisors and lawyers per 100,000 inhabitants). Beyond Azerbaijan's low lawyer to citizen ratio, many lawyers are reluctant to take on difficult or highly political cases due to fear of exactly the type of retribution Namazov, Kazimov, Ismayilov and Sadigov face.
The recent harassment of Azerbaijan's independent lawyers and the country's failure to maintain an independent body to regulate the legal profession contravenes obligations Azerbaijan has undertaken before the international community, including the UN and the Council of Europe. The UN's Basic Principles on the Role of Lawyers holds that governments must ensure an environment in which lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference. Furthermore, lawyers are not to suffer or be threatened with prosecution for any actions taken in accordance with the profession's recognized duties, standards and ethics. On the same note, the Council of Europe issued a recommendation [PDF] pursuant to which the regulation of the legal profession should be entrusted to an independent body and, at the very least, its decisions should be subject to review by an independent, impartial judicial authority. While this is only a recommendation, it has been incorporated by resolution into the mandate of the Council of Europe's European Commission for the Efficiency of Justice, of which Azerbaijan is a member. Accordingly, Azerbaijan should strive to achieve the standards set forth in the recommendation.
In conclusion, Azerbaijan needs to take steps toward reforming its Lawyers' Collegium, so that the entity can issue independent, impartial decisions on disciplinary matters. One way to achieve this might be reforming the Presidium. According to Khalid Bagirov, Presdium members serve for five years. Nonetheless, its current members' terms expired in 2009 and they are yet to be replaced. In addition, the Collegium needs to work to include a greater number of lawyers within the organization. Law is a very popular major in Azerbaijani universities, however very few of these students actually manage to successfully join the Collegium. This could be ameliorated by holding entrance exams more frequently and by ensuring that the second-level of the exam, which involves an interview, is not used to weed out aspiring lawyers that seek to serve dissidents, journalists and human rights activists. The country's leadership and its activists could also consider creating a new lawyers collegium that would replace or coexist with the current Collegium. However, until such an organization's members would be authorized to conduct "lawyerly activity" within the framework of Azerbaijan's Law on Lawyers and Lawyerly Activities, it and its members would not be able to exercise any amount of significant power. Although talks were previously held on this matter in 2005 and 2006, little progress was made and the government was reluctant to authorize a new or concurrent collegium. Finally, Azerbaijan should bear in mind that creating obstacles that prevent people from lawfully pursuing the profession of their choice, such as through the arbitrary expulsion of lawyers from the Collegium, can in and of itself be viewed as a human rights violation.
Sarah Paulsworth is a senior editor for JURIST's Paper Chase service. She is currently on sabbatical while studying and conducting research in Kazakhstan as a Boren Fellow studying Kazakh. She holds a bachelor's degree in journalism from the University of New Hampshire. Prior to attending law school she lived and worked in Azerbaijan for six years, first as a Peace Corps volunteer, and then with the local media and as an intern for the American Bar Association Rule of Law Initiative. Her views do not necessarily reflect those of JURIST.
Suggested citation: Sarah Paulsworth, A Call for Reform: Azerbaijan's Repression of Controversial Lawyers, JURIST - Dateline, Nov. 3, 2011, http://jurist.org/dateline/2011/11/sarah-paulsworth-azerbaijan-bar.php.
This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org