The International Commission of Jurists (ICJ) has called on the Azerbaijan authorities to release lawyer Elchin Sadigov and journalist Avaz Zeynally whose arrest on 10 September on charges of bribery is likely to be politically motivated. On 11 September, Binagadi Regional Court of Baku ordered their pre-trial detention for a period of four months. Both have denied the charges against them.
The ICJ today welcomed the judgment by the Court in the case of Bagirov v. Azerbaijan. It found that the suspension from legal practice and subsequent disbarment of Khalid Bagirov violated his rights to freedom of expression and to respect for private life under Articles 10 and 8 of the European Convention on Human Rights (ECHR).
Khalid Bagirov’s suspension from the practice of law was based on his public criticism of ill-treatment by the police, following the wide media coverage of the death of an individual in police custody. Later he represented the victim as a lawyer in the proceedings.
His subsequent disbarment arose from his remarks about a judge made in the courtroom when representing his client in another high-profile case.
The ICJ intervened in this case as a third party, providing an evaluation of the State’s obligation to protect the right to freedom of expression of lawyers in light of international standards on independence of the lawyers and the consequences of disciplinary proceedings for lawyers’ rights under Articles 8 and 10 ECHR.
The ICJ calls on the Azerbaijani authorities to fully and promptly implement the judgment, including by taking steps to restore Khalid Bagirov as a member of the Azerbaijan Bar Association.
“Khalid Bagirov must now be reinstated as a lawyer and be allowed to resume his legal practice in Azerbaijan,” said Massimo Frigo, ICJ Senior Legal Adviser.
“But in addition, this judgment shows that measures need to be taken to address the systemic problem of unjustified disbarments of lawyers who seek to defend human rights in Azerbaijan. Reforms are needed to ensure that the disciplinary process is independent and fair and that penalties are proportionate.”
In its judgment of 25 June 2020, the Court held under Article 10 of the Convention that the reasons given by the domestic courts in support of Khalid Bagirov’s disbarment were not relevant and sufficient, and that the sanction imposed on him was disproportionate to the legitimate aim pursued, having highlighted that “the disbarment cannot but be regarded as a harsh sanction, capable of having a chilling effect on the performance by lawyers of their duties as defence counsel”.
In relation to Article 8 ECHR, the Court further noted that “…in a series of cases it has noted a pattern of arbitrary arrest, detention or other measures taken in respect of government critics, civil society activists and human rights defenders … Against this background, the Court underlines that, notwithstanding the duties, in particular, with respect to their conduct, with which all lawyers must comply, the alleged need in a democratic society for a sanction of disbarment of a lawyer in circumstances such as this would need to be supported by particularly weighty reasons” which had not been established in this case.
In respect of the suspension of the lawyer, the Government contended that the interference with Mr Bagirov’s rights to private life and freedom of expression had been prescribed by law and pursued the legitimate aims of preventing the disclosure of information received in confidence or maintaining the authority and impartiality of the judiciary.
The Court found that, he was not the victim’s lawyer when he made the impugned statements about the police, furthermore, the Court mentioned that it did not find any provision of domestic law preventing a lawyer from calling for peaceful protests against police brutality for the purpose of preventing violence.
The Court further found that while Mr Bagirov’s remarks, about a judge’s lack of capacity, were capable of being offensive, the sanction imposed on him did not struck a fair balance between the need to protect the authority of the judiciary and the need to protect his rights to private life and freedom of expression.
In this connection, the Court stated that inter alia, Mr Bagirov had confined himself to making a statement in a courtroom as a lawyer, in the context of his objections to the shortcomings of the proceedings.
Background
In addition to its intervention in Bhagirov v Azerbaijan, the ICJ has also intervened as a third party in other cases of lawyers from Azerbaijan (Hajibeyli and Aliyev v. Azerbaijan, nos. 6477/08 and 10414/08, § 54, 19 April 2018).
In 2019, the ICJ published recommendations to the Azerbaijan Bar Association on the role and independence of Lawyers,
In 2016, the ICJ published a mission report Defenceless Defenders: Systemic Problems in the Legal Profession of Azerbaijan
The side event aims to identify current threats against lawyers’ professional rights and guarantees in the OSCE region.
The speakers will identify and analyze the current trends through a discussion of recently gathered data and specific cases of violation of lawyers’ rights from Kyrgyzstan, Kazakhstan, Tajikistan, Moldova, Ukraine, Azerbaijan, Russia and Belarus. They will also make recommendations regarding the way forward to increase protection for lawyers and the independent legal profession in these countries and the OSCE region as a whole.
A flyer for the event is available here.
The agenda for the event available here.
The recommendations published today follow the Conference on the Independence of the Legal profession held by the International Commission of Jurists (ICJ), the Council of Europe (CoE) Office in Baku and the Azerbaijan Bar Association (ABA) in Baku, on 15-16 November 2018.
The Conference created much-needed space for a dialogue on the issue of independence of lawyers in Azerbaijan with both national and international stakeholders, as lawyers from Azerbaijan, Georgia, Kazakhstan, the Netherlands, the Russian Federation, Switzerland, Turkey, Ukraine, the United Kingdom and Uzbekistan shared their experiences and good practices in addressing challenges to the independence of lawyers. Drawing on the discussions at the Conference, and taking into account key findings of the ICJ report of 2016 “Defenceless Defenders: Systemic Problems in the Legal Profession of Azerbaijan” as well as more recent legislative and administrative developments, the ICJ makes recommendations aimed at strengthening the role and independence of lawyers and improving access to justice in Azerbaijan. The recommendations are informed by international law and standards on the role of lawyers and cover four main aspects: adequacy of the number of lawyers to ensure access to justice; the examination procedure for qualification as a lawyer; professional ethics of lawyers and disciplinary proceedings against lawyers.
The ICJ today highlighted threats to the rule of law in Turkey, Poland, Hungary and Azerbaijan, and the need to address corporate complicity in South Sudan, at the UN Human Rights Council in Geneva.The statement, delivered during general debate, read as follows:
“The situation remains grave for the rule of law and legal protection of human rights in Turkey and Poland.
In Turkey, constitutional reforms in 2017 that undermined the independence of the judiciary should be abolished. Civil society members are prosecuted under overbroad and vague terrorism offences.
In Poland, the Legislature is trying arbitrarily to remove one third of the Supreme Court, a measure that is on hold only temporarily. Unjustified disciplinary proceedings are also being pursued against Polish judges for having sought a ruling of the Court of Justice of the EU.
Elsewhere, in Hungary civil society is ostracized and subject to legislation that risks criminalizing their legitimate activities. In Azerbaijan, as one example of a broader pattern of interference with lawyers and other human rights defenders, lawyer Elchin Sadigov was reprimanded for advising in a confidential manner to his client in detention to complain about torture to which he allegedly had been subjected.
The ICJ is also concerned at the findings by the Commission on Human Rights in South Sudan (A/HRC/40/69, A/HRC/40/CRP.1) that point to the oil industry as a “major driver” in the continuation of the armed conflict and resulting human rights violations. Potential corporate complicity with crimes under international law demand investigation and a strong monitoring mechanism for the use of oil revenues should be established.”