Sep 21, 2015 | News
Today, the ICJ has started its mission to the Kyrgyz Republic on organisation and functioning of the legal profession.
During the mission, which will last from 21 to 25 September, the ICJ will assess the implementation of the new legislation unifying the legal profession under a single national bar association, including establishment of new structures and standards for the self-governance of the profession regarding qualification, disciplinary action and professional ethics.
A round table with independent lawyers will be held during the visit, other meetings with bodies of the Bar Association, State officials and other stakeholders that take part in the reform will be held.
The mission will include Jeroen Brouwer, former President of the Dutch Bar Association, Róisín Pillay, Director of the Europe Programme and Temur Shakirov, Legal Adviser of the Europe Programme.
The mission will be followed by a brief report with recommendations for reform.
Contact:
Róisín Pillay: roisin.pillay(a)icj.org
Temur Shakirov: temur.shakirov(a)icj.org
Jul 13, 2015 | News
The ICJ expresses concern at the recent decision of the Nizami District Court of Baku to disbar Khalid Baghirov, a prominent lawyer who litigates before national and international jurisdictions including the European Court of Human Rights.
Khalid Baghirov had been accused of the use of improper expressions and inappropriate behaviour, following statements he made in a hearing before Sheki Appeal Court, alleging that the judge in the case was biased.
On 2 February 2015, the ICJ observed the disciplinary hearing in the case of Khalid Baghirov before the Nizami District Court of Baku.
The Court’s decision, on 10 July 2015, follows the disbarment earlier this month of lawyer Alaif Ghasanov, for making a public statement about the conditions of detention of one of his clients, Leyla Yunus, a prominent human rights defender currently held in detention.
There are grounds to believe that Khalid Baghirov’s disbarment is in retaliation for his representation of clients in high profile cases, including prominent human rights defenders.
“Disbarments such as this have a chilling effect on the work of other lawyers, sending a signal that they may be penalized for discharging their functions independently and in accordance with international standards on the role and duties of the legal profession,” said Róisín Pillay, Director of the ICJ Europe Programme.
“Without independent legal representation, those who come before the courts cannot receive a fair trial and the system’s capacity to fairly administer justice under the rule of law is undermined,” she added.
Access to effective and independent legal assistance is an indispensable element of the right to a fair trial, guaranteed under the European Convention on Human Rights and the International Covenant on Civil and Political rights, to which Azerbaijan is a party.
The ICJ affirms that freedom of expression of lawyers constitutes an essential requirement for the proper functioning of the legal profession.
Article 23 of the UN Basic Principles on the Role of Lawyers states that lawyers: “[…] have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization.”
The European Court of Human Rights commented in its recent decision in Moris v France that where a lawyer makes statements regarding the functioning the judiciary, a matter of public interest, little room is left for restrictions on such comments which are protected pursuant to the right to freedom of expression.
In particular, the Court held that “[…] a lawyer should be able to draw the public’s attention to potential shortcomings in the justice system; the judiciary may benefit from constructive criticism”.
The ICJ calls on the public authorities of Azerbaijan as well as the Azerbaijan Collegium of Lawyers to ensure that lawyers, including those representing opposition leaders or human rights defenders, are not identified with their clients’ causes and are able to discharge their functions freely without any fear of persecution, harassment or improper interference.
Background:
Khalid Baghirov, an Azerbaijani lawyer, has represented a number of clients in high-profile cases, including Ilgar Mammadov, Leyla and Arif Yunus and Rasul Djafarov.
He has filed over 40 applications to the European Court of Human Rights, thirteen of which are pending communication.
On 17 March, 2014, Sheki Court convicted Ilgar Mammadov, leader of the “Republican Alternative” movement and former presidential candidate, and sentenced him to seven years of imprisonment.
The case was appealed to Sheki Appeal Court, and a hearing in the appeal was held on 12 August 2014.
On 25 September 2014, judge of Sheki Appeal Court Rashid Huseynov filed a complaint (1 (107)-90/2014) before the Collegium of Advocates requesting disciplinary measures against Khalid Baghirov for a breach of the Law of the Republic of Azerbaijan “On Advocates and Advocates’ Activity”, which included a failure to wear “lawyers’ outfit” in the court room, and use of improper expressions and behaviour incompatible with standards of lawyer’s conduct.
According to the complaint, on 12 August 2014, at the appeal hearing of Mammadov’s case by the Sheki Appeal Court, Khalid Baghivov was alleged to have said: “… like a state, like a court… If there were justice in Azerbaijan, neither the judge Rashid Huseynov would make unjust and biased decision, nor the person like him would be a judge”. He allegedly did not wear a lawyer’s gown during the appeal herrings on 12 and 13 August as well as on 3 and 4 September 2014 hearings.
On 19 November 2014, the Disciplinary Commission of the Advocates’ Collegium issued an opinion, finding that the applicant’s speech aimed to defame the State and was in breach of lawyer’s ethical standards.
On 10 December 2014, the Presidium of the Collegium of Lawyers suspended Khalid Baghirov’s practice, stating inter alia as follows: “The fact that advocate Khalid Baghirov stated the expression ‘like a state, like a court’ in the open court session casts a shadow not only on judiciary branch of Azerbaijan, more importantly, on our state that is considered to be holy for each citizen of Azerbaijan. […] Moreover, by using expression ‘If there were justice in Azerbaijan, neither the judge Rashid Huseynov would make unjust and preconceived decision, nor the person like him would be a judge’ Khalid Baghirov humiliated authority of the whole Justice System of Azerbaijan”.
At the same time, the Presidium applied to the Nizami District Court seeking complete termination of his right to practice law.
Contact:
Róisín Pillay, Director, Europe Programme, roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, Europe Programme, temur.shakirov(a)icj.org
Jun 26, 2015 | Advocacy, Cases, Legal submissions, News
The ICJ submitted today a third party intervention before the European Court of Human Rights in the case of Richmond Yaw and others v. Italy regarding the detention of four migrants in Italian Centres for Identification and Expulsion.
The case raises issues related to the lawfulness of their detention in immigration centres, and the compliance of the mechanisms of judicial review and compensation for unlawful detention with the European Convention on Human Rights.
Taky Berko Richmond Yaw, Yaw Ansu Matthew, Darke Isaac Kwadwo, and Dominic Twumasi, nationals of Guinea, had been detained in the Centre for Identification and Expulsion of Ponte Galeria (Rome).
In these submissions, the ICJ presented the Court with a summary of its findings regarding the law and practice of detention of migrants and the related judicial guarantees in Italy, in its 2014 report, “Undocumented” Justice for Migrants in Italy.
Furthermore, the ICJ presented an analysis of the principles that apply in regard to arbitrary detention of persons detained for the purposes of immigration control under article 5.1.f. ECHR, in particular:
- The principle of legality, including the fact that the basis, procedures and conditions for detention must be provided by law, and the principle that detention must be carried out in good faith; and the due process guarantees related to these principles;
- The requirement that detention be undertaken only pursuant to the permitted purposes of article 5.1.f ECHR, and the need for strict construction of this requirement, and ongoing scrutiny of compliance with it, in particular in the context of long periods of detention;
- The requirements of access to an effective judicial mechanism to secure the right to habeas corpus and review of the legality, necessity and proportionality of the detention of migrants, under article 5.4. ECHR;
- The requirements of an effective remedy and reparation mechanism for unlawful deprivation of liberty under article 5.5 ECHR.
ECtHR-AmicusBrief-Yaw&others v Italy-Advocacy-Legal Submission-2015-ENG (download the third party intervention)
Jun 25, 2015 | News
The ICJ today welcomed the decisions by the Kyrgyz Supreme Court declaring illegal the recent government searches of the homes and offices of lawyers, and seizures of their legal files.
In three related cases, the Court upheld the findings of the Osh regional court that the searches of the homes of lawyers Valerian Vakhitov and Khusanbay Saliyev and lawyers’ offices at the NGO “Bir-Duyno-Kyrgyzstan” by officers of the State National Security Committee were contrary to Kyrgyz law.
The Supreme Court also dismissed the attempts by the Prosecutor’s Office to initiate disciplinary action against judges of the Osh regional court as a result of their decision in these cases.
The decisions are an important affirmation of the rule of law in the Kyrgyz Republic, and will strengthen the independence of both the judiciary and the legal profession, the ICJ said.
“These decisions of the Supreme Court are crucial for securing the independence and strengthening of the legal profession under the newly established Association of Lawyers and for the ability of judges to issue independent decisions based on law and facts,” said Olga Zimareva, one of two ICJ observers who were present at the hearing.
“It is a demonstration of the judiciary’s willingness and capacity to effectively uphold the rule of law and safeguard the fundamental role of lawyers,” she added.
The International Covenant on Civil and Political Rights, which is binding on the Kyrgyz Republic, protects the right to a fair trial including lawyer-client confidentiality.
Furthermore, Principle 16 of the UN Basic Principles on the Role of Lawyers upholds the duty of States to ensure that lawyers can perform all of their professional functions without intimidation, hindrance, harassment or improper interference.
International standards require that judges should not be subjected to disciplinary action for discharging their judicial function, as was requested by the Prosecutor’s Office in this case.
Principle 2 of the UN Principles on the Independence of the Judiciary makes clear that: “[t]he judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason”.
Background
On 25 March 2015, Umar Farooq, a United States national and journalist, was arrested by officers of the State National Security Committee (SNSC), who seized a number of items in his possession including the business cards of two lawyers, Valerian Vakhitov and Khusanbay Saliyev.
On 28 March, Umar Farooq was expelled from the Kyrgyz Republic on grounds of collection of information without accreditation.
The investigator sought a search warrant for the premises of the two lawyers on the grounds that they could contain documents “necessary for the investigation”. This was done despite a clear guarantee against such an interference under Article 29 of the Law On Advokatura and Lawyers’ Activity of the Kyrgyz Republic stating that “requisitioning, seizure, examination, inspection, copying documents, collection and use of information related to legal assistance in a particular criminal case are allowed only in the case involving a lawyer as a defendant …”.
Judges K.M. Matisakov and B.T. Satybaldiyev issued warrants to the State National Security Committee to search the NGO premises where the lawyers worked and to search the residence of Valerian Vakhitov and Khusanbay Saliyev, in separate proceedings on 26 and 27 March. Officers of searched the homes of lawyers and the office of the human rights organization Bir-Duyno-Kyrgyzstan” and seized certain case materials of the two lawyers.
In a statement issued on 31 March 2015, the ICJ deplored the unlawful actions against the lawyers and underscored that an independent legal profession is fundamental to ensuring the fair administration of justice and right to a fair trial for all persons who come before the courts.
The issuing of the warrants was successfully challenged by lawyers before the Osh Regional Court which issued its decision on 30 April 2015. Before the Supreme Court, the Prosecutor’s Office sought affirmation of the lawfulness of searchers of lawyer’s homes and work premises as well as recognition of the lawfulness of seizure of case materials, both guarantees clearly protected by national law in Kyrgyz Republic and international law and standards on the role of lawyers and the right to a fair trial.
The Prosecutor also sought disciplinary measures against the judges of the Regional Court who decided in favour of the protection of the professional guarantees of lawyers, ruling that the searches and seizures of documents were illegal.
Two ICJ observers attended the hearings at the Supreme Court: Olga Zimareva, a lawyer practicing in the Russian Federation and Almaz Osmanova, a lawyer in the Kyrgyz Republic and chair of the Central Asian League of Lawyers.
The Supreme Court issued its decisions finding the searches and seizures of documents illegal, on 24 June 2015. The reasons for the decisions have not yet been published.
The ICJ will publish its legal analysis of the proceedings and the judgment of the Supreme Court in due course.
Contact
Róisín Pillay, Director, Europe Programme, roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, Europe Programme, temur.shakirov(a)icj.org
Kyrgyzstan-Supreme Court Vakhitov Saliyev-News-Press release-2015-RUS (full text in PDF, Russian)
Jun 18, 2015 | News
Today, the ICJ expressed concern at the attempt to initiate criminal proceedings against the President of the Constitutional Court of Ukraine, following interrogations of judges of the Constitutional Court and seizures of documents from the Court earlier this year.
On 16 June, the Chair of the Security Council of Ukraine, Valentin Nalivaychenko, is reported to have filed evidence alleging criminal offences by the President of the Constitutional Court of Ukraine, Jury Baulin.
The documents allege that he abused his office in violation of Article 364(2) of the Criminal Code of Ukraine, leading to the usurpation of power by the former President, Victor Yanukovich.
The allegations relate to a decision of the Constitutional Court of 30 September 2010, No 20-rp/2010, which overturned the adoption of the Constitution of 2004.
The initiation of the criminal proceedings is therefore based entirely on a ruling of the Constitutional Court on a question of constitutional law.
“It is inherent in the judicial function that courts issue rulings concerning matters on which public opinion may be divided. Prosecution of judges in relation to such decisions undermines judicial independence and erodes the rule of law,” said Wilder Tayler, ICJ Secretary General. “In all times but particularly in times of transition, such as at present in Ukraine, it is crucial that the executive refrain from any interference with the independence of the judiciary”.
The ICJ stressed that such attempts to initiate criminal proceedings against the President of the Constitutional Court are contrary to international law and standards on the independence of the judiciary, including the UN Basic Principles on the Independence of the Judiciary.
“Changes to the law or Constitution, must be sought and brought about through proper constitutional processes in the legislature and courts, not through prosecutions of judges. Criminal investigations and prosecutions against Constitutional Court judges must be discontinued and the government must ensure that the Court can operate without threats or interference,” Tayler added.
Following the change of government in early 2014, the ICJ expressed concern at the dismissals of judges of the Constitutional Court by the Verkhovna Rada (the Ukrainian Parliament) and called on the authorities to ensure the security of tenure of judges and non-interference with judicial independence.
Earlier this year, the Security Service of Ukraine interrogated sitting judges of the Constitutional Court in regard to the same case.
According to the State Security Service, at least 10 judges of the Constitutional Court have been interrogated. Moreover, the Security Service of Ukraine seized documents from the Constitutional Court in May 2015.
These investigations and prosecutions of Constitutional Court judges are taking place at a time when the Court is considering a number of highly significant cases, including the constitutionality of the Law “On cleansing of power”, the Law “On condemnation of the communist and national-socialist (nazi) regimes in Ukraine and prohibition of propaganda of their symbols” and the Law on an “All-Ukrainian referendum”.
The ICJ recalls that Article 1 of the UN Basic Principles on the Independence of the Judiciary clarifies that all governmental and other institutions must respect and observe the independence of the judiciary.
The principles further stipulate that [t]he judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law without restrictions or improper influences, inducements, pressures threats or interferences, direct or indirect, from any quarter or for any reason” (Article 2).
Recommendation No. R(94) 12 of the Committee of Ministers to Members States on the Independence, Efficiency and Role of Judges elaborates on this principle, stipulating that “judges should have unfettered freedom to decide cases impartially, in accordance with their conscience and their interpretation of the facts, and in pursuance of the prevailing rules of the law. Judges should not be obliged to report on the merits of their cases to anyone outside the judiciary”.
Contact:
Róisín Pillay, Director, Europe Programme, e: roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, Europe Programme, e: temur.shakirov(a)icj.org
External link: Official information about the criminal procedure
Jun 16, 2015 | News
On 17 June, the ICJ will observe proceedings before the Supreme Court of the Kyrgyz Republic concerning searches of the workplace and homes of lawyers Valerian Vakhitov and Khusanbay Salieyv by law enforcement agents.
The case concerns confidentiality of lawyer-client communications and seizure of lawyers’ files, in light of the prohibition of arbitrary interference with privacy, correspondence, and home.
The Supreme Court of the Kyrgyz Republic is to consider the challenge of the Prosecutor’s Office to the decision of the Regional Osh Court of 30 April 2015.
The prosecutor also seeks disciplinary measures against the judges of the Regional Court who decided in favour of the protection of the professional guarantees of lawyers, ruling that the searches and seizures of documents were illegal.
The ICJ trial observation mission includes Olga Zimareva, a lawyer practicing in the Russian Federation and Almaz Osmanova, a lawyer in the Kyrgyz Republic and chair of the Central Asian League of Lawyers.
Following the conclusion of the case, the ICJ will publish its analysis of the proceedings and the judgment of the Supreme Court of the Kyrgyz Republic in light of international human rights law and international standards on the independence of the judiciary and the role of lawyers.
Contact:
Róisín Pillay, Director, Europe Programme, roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, Europe Programme, temur.shakirov(a)icj.org
Kyrgyzstan-Trial observation-News-Web story-2015-RUS (full text in PDF, Russian)
