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
Jul 8, 2015 | News
The National Prosecuting Authority (NPA) of Zimbabwe convened its first strategic planning workshop with technical support from the ICJ, under recently launched European Union (EU) funded project to contribute to an improvement in administration of justice in Zimbabwe.
The strategic planning workshop took place in Harare from 6 to 8 July 2015.
The NPA is established under section 259 of the 2013 Constitution as a separate, independent and accountable institution responsible for instituting and undertaking criminal prosecutions on behalf of the State, promoting a just and fair system for all persons approaching the courts and protecting the rights of the arrested and detained persons as provided for by the Constitution.
The strategic plan will allow the NPA to set its vision, objectives and including stakeholders’ expectations as guided by the Constitution and the National Prosecuting Authority Act for the next 5 years.
The NPA held this strategic plan as its first ever strategic stakeholder’s engagement since its establishment under the Constitution in May 2013.
To validate and ground the strategic plan and outputs, the NPA invited civil society organizations, law based institutions, human rights advocates, women lawyers associations, legal aid institutions, the Parliament Thematic and Standing Committee representatives, law enforcement agencies, and law professors, among others.
The Judicial Service Commission and Law Society of Zimbabwe, ICJ’s partners in EU funded project on improvement in the administration of justice, also attended the NPA strategic planning session.
The strategic plan will inform further interventions and activities for strengthening the observance of the rule of law, fair trial and access to justice by the NPA with support from ICJ’s EU funded project.
Once developed and adopted, the strategic plan will further open opportunities for other technical partnerships and funding opportunities for the NPA.
Contact:
Arnold Tsunga, ICJ Regional Director for Africa, t: +27 73 131 8411, e: arnold.tsunga(a)icj.org
Jul 2, 2015 | News
The Human Rights Council today adopted a resolution on the independence of judges & lawyers, with several new provisions on gender balance in the judiciary, judicial accountability, children and court proceedings, and development of professional guidance on marginalized and other groups.The resolution builds on past resolutions of the Human Rights Council.
The full text of the resolution is here: HRC29-ResolutionJudgesLawyers-2015 Its official resolution number has not yet been assigned.
The main sponsors of the resolution were Australia, Botswana, Hungary, Maldives, Mexico, Thailand. The resolution was adopted by consensus (without a vote).
A resolution on this topic will next be presented in 2017.
Jun 30, 2015 | News
The ICJ welcomes the decision of the Supreme Court of Swaziland to uphold the appeal of imprisoned human rights defenders Thulani Maseko and Bheki Makhubu and ordering their immediate release.
“The decision marks a victory for the rule of law in Swaziland,” said ICJ Secretary-General Wilder Tayler. “We hope that this is but the first of many steps to come in restoring the integrity of the courts and reinforcing the respect for the rule of law that has undergone so much erosion in recent years.”
The ICJ considers that while the release of the two men is a necessary step for justice for the two men, alone it is not enough.
The government of Swaziland should ensure adequate reparation for their wrongful imprisonment.
More broadly, it must engage in legal and structural reforms necessary to ensure the fair and effective administration of justice, the independence of the judiciary and respect for human rights in the country.
Thulani Maseko and Bheki Makhubu were arrested on 17 March 2014 under contempt of court charges for having written articles criticizing the manner in which the then Chief Justice (CJ), Michael Ramodibedi, had handled the case of another defendant, Bhantshana Gwebu.
Mr. Gwebu had been arraigned before the CJ without legal representation, charge sheet or being informed of his rights to apply for bail.
The trial of Thulani Maseko and Bheki Makhubu was riddled with violations of basic due and fair trial principles, as affirmed by the UN Working Group on Arbitrary Detention (WGAD), which ruled on a complaint in Thulani Maseko’s case.
Background
The trial of Thulani Maseko and Bheki Makhubu resulted in their conviction and a two-year prison sentence It was improperly conducted before a presiding judge, Mpendulo Simelane, who was a potential witness and had a direct interest in the case.
They had been in custody since their arrest, save for a three-day release in June 2014, and were due for final release on the 17 July 2015.
The ICJ has previously issued a number of statements after conviction by the High Court, underscoring that the prosecution and trial Court’s judgment had constituted a breach of Swaziland’s obligations to respect the rights to freedom of expression and fair trial.
The UN WGAD opinion issued on 22 April 2015 held that the deprivation of liberty of the accused was arbitrary and in contravention of the Universal Declaration of Human Rights and Swaziland’s obligations under the International Covenant on Civil and Political Rights (ICCPR).
The WGAD also emphasized that Swaziland should release the accused and facilitate the enforceable right to compensation in accordance with article 9 of the ICCPR.
In the appeal hearing yesterday, the Crown conceded most of the legal arguments by defence counsel and in particular that Judge Simelane ought to have recused himself from presiding over the case.
The Supreme Court’s written judgment is expected to be issued at the end of the session of its sitting.
Read also:
Swaziland: ICJ condemns the harsh prison term imposed on Thulani Maseko and Bheki Makhubu
Swaziland: ICJ condemns the conviction of celebrated human rights lawyer and prominent journalist on charges of contempt of court
Swaziland: ICJ concerned at detention of human rights lawyer and journalist
American Bar Association’s statement
Contact:
Arnold Tsunga, Director, ICJ Africa Regional Programme, t +27 716 405 926 or +41 76 239 90 32 e: arnold.tsunga(a)icj.org
Matt Pollard, Senior Legal Adviser, ICJ’s Centre for the Independence of Judges and Lawyers, t: +41 22 979 38 12, e: matt.pollard(a)icj.org
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)
