Mar 4, 2019 | News
Today, the ICJ expressed concern at the disciplinary proceedings against lawyer Elchin Sadigov who was sanctioned with a reprimand on 25 February 2019 by the Presidium of the Bar Association of Azerbaijan.
The ICJ called on the Bar Association to reverse this sanction and take measures to end interference with the independent exercise of the representation of victims of human rights violations.
The decision to hold the lawyer accountable for actions taken in accordance with professional ethics and responsibilities jeopardizes the independence of lawyers and their capacity to protect human rights, and is likely to have a chilling effect on the independent exercise of lawyers’ duties in Azerbaijan, the ICJ said.
Elchin Sadigov represented Yunis Safarov, who was charged with the attempted murder of Elmar Valiyev, former mayor of Ganja City in Azerbaijan. According to Sadigov, he informed his client in a confidential conversation in detention, of the right to complain about torture or ill treatment.
Shortly afterwards, he was told that he had violated the law by persuading his client to complain about the ill-treatment which, the Prosecutor General’s Office officials “decided” in an official document, never took place.
On 5 September 2018, the Prosecutor General’s Office removed Elchin Sadigov as Safarov’s representative and complained to the Bar Association, seeking disciplinary action against the lawyer, among others, on the basis of “[…] creating false grounds to file a complaint to the European Court of Human Rights […], clearly knowing that it is not true, proposed his client to complain about torture inflicted by the police and investigative authorities, despite the fact that the accused told him that he had not been tortured, Sadigov continued psychological influence on his client again – as if he had been tortured – to refuse giving testimony, to refuse services of the State appointed lawyer […]”.
The complaint referred to the confidential conversation between the lawyer and his client, which was apparently overheard and possibly recorded by law enforcement officials. It also refers to a letter which appeared during the disciplinary proceedings, in which Sadigov’s client complained that his lawyer had tried to convince him to complain about use of torture in custody.
According to Elchin Sadigov, however, this letter may have been signed by his former client under pressure from the detention authorities.
The ICJ recalls that according to the UN Basic Principles on the Role of Lawyers, it is indispensable that lawyers “always loyally respect the interests of their clients.”
The Principles specify that they assist their clients “in every appropriate way, and taking legal action to protect their interests”. In the present case, as submitted by Elchin Sadigov and evident from the publicly available materials including photos and videos of Safarov with clear and multiple signs of severe beatings, the lawyer had every reason to believe that his client had been subjected to torture and ill treatment in custody.
Therefore, he had not only the right, but an affirmative professional duty to advise his client to use available remedies for this violation of human rights through procedural means such as a complaint. A failure to do this would be a breach of professional ethics and duties on the part of the lawyer as a trusted representative of his client. The ICJ is concerned that in this case a lawyer was held accountable for attempting to discuss with his client, in a confidential manner, issues related to the human rights of his client.
The ICJ is furthermore concerned that the principle of lawyer-client confidentiality has been violated in this case.
This principle is a fundamental component of the right to a fair trial, as protected under the International Covenant on Civil and Political Rights and the European Convention of Human Rights, to both of which Azerbaijan is a party.
According to the UN Basic Principles on the role of lawyers “[a]ll arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality…”
The ICJ is also concerned that lawyer Sadigov’s conversations may have been monitored in violation of the guarantees of professional secrecy with his client and contrary to international law and national procedure.
The ICJ considers it essential that the Bar Association send a strong signal in support of independent lawyers by lifting the sanction against lawyer Sadigov and consider legislative and practical improvements to ensure that confidentially of lawyers and their clients in detention is effectively guaranteed in practice.
Azerbaijan-Statement Sadigov-News-web stories (full story with additional information, in PDF)
Nov 30, 2018 | News
The International Commission of Jurists (ICJ) together with the Council of Europe and the Azerbaijan Bar Association held the international conference on the independence of the legal profession in Azerbaijan on 15-16 November 2018.
The conference on the Role and Independence of Lawyers brought together comparative perspectives from countries of the Council of Europe region and Central Asia as well as from international organizations. Representatives of bar associations and individual lawyers from Azerbaijan, Georgia, Kazakhstan, the Netherlands, the Russian Federation, Switzerland, Turkey, Ukraine, the United Kingdom and Uzbekistan shared their experiences and best practices in addressing challenges to the independence of lawyers.
The ICJ considers the conference to be a landmark event which has created much-needed space for further dialogue on the issue of independence of lawyers in Azerbaijan both with the national and international stakeholders.
The ICJ appreciates the engagement of the Azerbaijan Bar Association and the open debate on these issues at the conference, as a step towards implementation of its previous recommendations that the Bar Association “should initiate, through a consultative process, an internal reform based on the principles of independence of the profession, high standards of legal practice, the protection of lawyers from threats, harassment and hindrance in their work, and the democratic participation of its members.” Defenseless Defenders: Systemic Problems in the Legal Profession of Azerbaijan
The ICJ stresses the need for the Azerbaijan authorities to respect both the institutional independence of the legal profession, and the individual independence of lawyers, in accordance with the international standards outlined at the conference and in the above-mentioned report. Decisions of competent international human rights authorities, including the European Court of the Human Rights, in cases concerning the rights of lawyers, must be implemented in full.
The ICJ looks forward to future dialogue and co-operation with the Azerbaijan Bar Association and other concerned stakeholders in Azerbaijan on the essential elements of an independent legal profession, including as regards lawyers’ professional ethics, qualification of lawyers and the disciplinary system. The new impetus for international engagement on these issues creates room for discussing the most acute institutional challenges and individual cases where the independence of the legal profession may be at stake.
Speaking at the Conference, Róisín Pillay, Director of the ICJ Europe and Central Asia Programme said that “the requirement of independence places responsibilities not only on the bar association itself but also on the executive and legislative powers to respect this independence, refrain from interference, and put in place – and respect in practice – appropriate legislative and institutional safeguards.”
Participants underscored problems relating to the ethical responsibilities of lawyers and their enforcement in disciplinary proceedings, in particular as regards potential friction with the exercise of freedom of expression of lawyers.
Temur Shakirov, ICJ Senior Legal Adviser, focused on the independence of lawyers as an ethical requirement of individual lawyers, saying that “Independence is an essential principle both for the bar association as an institution and for an individual lawyer. It is known that the institutional independence of the legal profession should be ensured, in accordance with international standards, both in law and in practice. However, the independence of lawyers is also an ethical requirement for each lawyer.”
Henry Reznik, Vice-President of the Federal Chamber of Lawyers of the Russian Federation, stressed in his presentation that “the primary role of the association of lawyers is to protect their [lawyers’] independence and freedom.” He added that “Advokatura is an institute of the civil society. Advokatura is not part of the State and municipal bodies. And Advokatura must have the trust of the society.”
Yuri Pilipenko, President of the Federal Chamber of Lawyers of the Russian Federation, highlighted the natural tensions between the legal profession and government, noting that “… the government and an independent self-regulating professional organization, which has goals to protect rights and freedoms and access to justice, are by definition opponents in a certain sense.”
In his concluding remarks at the Conference, Anar Baghirov, President of the Azerbaijan Bar Association, highlighted that the most crucial mission of the Bar Association was “to protect interests of lawyers and the institutionalized legal profession.”
In that regard he mentioned the need for modification of the Law on Advocates and Advocates’ Activity, stating that the most important role of the Bar Association should be reflected in the law. In addition, among other things he mentioned that issues to be addressed included the number of lawyers, increasing availability of pro bono legal aid, enhancing lawyers’ professional capacity, and cooperation with other countries’ bar associations and international organizations.
In his closing remarks at the Conference, ICJ Secretary General Sam Zarifi stressed the importance of lawyers in the protection of human rights and the rule of law. He stressed that around the world, lawyers were attacked because of their role in defence of their clients: for what they say, what the individuals they represent say, and that such attacks violate the clear prohibition of identifying lawyers with their clients.
He stressed the key role of the bar association in this regard: “To maintain the role of lawyers we have heard again and again how important it is that lawyers have the independence and an association that can pretend this independence. It is part of international law and standards and we would like that standard to be implemented around the world and of course here [in Azerbaijan]. We need bar associations, which are independent and strong to defend the independence of lawyers.”
The ICJ will continue to closely follow issues of the independence and role of lawyers in Azerbaijan. It will continue its international engagement on such matters including with UN and Council of Europe institutions, as well as with lawyers and civil society in Azerbaijan in order to facilitate the independence of lawyers, their protection from harassment and reprisals, and other key principles in line with the UN Basic Principles on the Role of Lawyers.
Background information
Problems regarding independence of the legal profession in Azerbaijan were outlined in the ICJ report “Defenseless Defenders: Systemic Problems in the Legal Profession of Azerbaijan” https://www.icj.org/azerbaijan-the-independence-and-role-of-lawyers-must-be-respected-icj-report-says/
The ICJ has raised concerns regarding cases of abusive disciplinary proceedings and other threats to the independence of lawyers, including:
Cases of Democracy and Human Rights Resource Centre v. Azerbaijan and Mustafayev and Democracy and Human Rights Resource Centre v. Azerbaijan: https://www.icj.org/azerbaijan-icj-intervenes-before-european-court-of-human-rights-in-defence-of-harassed-lawyers-and-civil-society/
Azerbaijan: Lawyer Irada Javadova disbarment decided in unfair proceedings, https://www.icj.org/azerbaijan-lawyer-irada-javadova-disbarment-decided-in-unfair-proceedings/
Alayif Hasan oglu Hasanov v. Azerbaijan case: https://www.icj.org/azerbaijan-icj-intervenes-before-the-european-court-of-human-rights-in-a-case-concerning-restrictions-of-lawyers-rights/
Cases of Annagi Hajibeyli, Khalid Bagirovand Intigam Aliyev v Azerbaijan, https://www.icj.org/wp-content/uploads/2016/11/ICJ-Bagirovothers-AmicusBrief-Azerbaijan-2016-Final.pdf
Nov 16, 2018 | News
On 15 and 16 November, the ICJ, jointly with the Council of Europe (CoE) and the Azerbaijan Bar Association (ABA), is holding an international conference in Baku on “the Role and Independence of Lawyers: comparative perspectives”.
The conference, which is the first such event on the role and independence of the legal profession organized in the country, aims to bring together perspectives on the governance and role of the legal profession from international experts and representatives of bar associations from a wide range of countries, including the Council of Europe countries, Central Asian as well as representatives of international organizations.
The interventions provide a comparative view on the conditions and requirements that lawyers should comply with while carrying out their professional duty of protection of human rights of their clients.
Participants of the Conference will address in particular the organization and governance of the legal profession, lawyers’ ethics and qualification of lawyers.
Contact:
Temur Shakirov, Senior Legal Adviser, Europe and Central Asia Programme, [email protected]
Live cast: https://youtu.be/POVlaKXjUrg
Azerbaijan-Conference Independence Lawyers-News-Agenda-2018-ENG (Agenda of the Conference, in PDF)
Oct 1, 2018 | Advocacy, Cases, Legal submissions
The ICJ made submissions today to the European Court of Human Rights in support of the right of association of Azerbaijan’s lawyers representing applicants before the Court and highlighting the situation of harassment of the legal profession in the country.
The ICJ intervened today in the cases of Democracy and Human Rights Resource Centre v. Azerbaijan and Mustafayev and Democracy and Human Rights Resource Centre v. Azerbaijan.
In these cases, lawyer Asabali Mustafayev and its NGO challenged the compliance of the freezing of their assets and criminal proceedings for financial offences as arbitrary interferences with their work as human rights defenders and in representation of clients before the European Court of Human Rights itself.
The ICJ has intervened to highlight the case-law regarding the right to individual application before the Court under article 34 ECHR and its application to the work of lawyers and legal NGOs.
It further examined the systemic practice in Azerbaijan of harassment of lawyers and of NGOs established by lawyers for the purpose of providing legal advice or representation, including representation of applicants before the European Court of Human Rights.
Finally, the ICJ analyzed the implications of such practices with regard to the State’s obligations under article 18 ECHR read together with article 11 ECHR.
Azerbaijan-icj-DHRRC&other-Advocacy-legal submission-2018-ENG (download the submission)
“Defenseless Defenders: Systemic Problems in the Legal Profession of Azerbaijan” – ICJ report in Azeri, Russian and English.
Question to the parties: http://hudoc.echr.coe.int/eng?i=001-184179
Sep 20, 2018 | Advocacy, Non-legal submissions
The ICJ today put the spotlight the lack of independence of the legal profession in Azerbaijan speaking at the UN Human Rights Council in Geneva.
The statement, made during the consideration of the Universal Periodic Review (UPR) of Azerbaijan, read as follows:
The International Commission of Jurists (ICJ) welcomes the acceptance by Azerbaijan of the recommendations by France (140.70), by Greece (141.12), Austria (141.13), Estonia (141.68), Slovenia (141.71), and Mexico (141.77), to respect the rights of lawyers.
The ICJ regrets, however, that Azerbaijan only noted and did not explicitly support the recommendations by Sweden (141.33), USA (141.39), Czechia (141.67) and Germany (141.76) and rejected the recommendation by the United Kingdom (141.60) to “End all interference in the work of lawyers through disbarment or other disciplinary measures on improper grounds such as expressing critical views.”
These recommendations call for the amendment of the Law on Advocates and Advocates’ Activities to ensure the effective independence of the Bar Association of Azerbaijan. They also call for the setting up of independent and transparent mechanisms for lawyers’ admission to practice, and disciplinary proceedings against lawyers, in conformity with the UN Basic Principles on the Role of Lawyers.
The ICJ notes that Azerbaijan’s support of most recommendations is predicated on the assumption that the situation of the independence of the legal profession in Azerbaijan is in line with international law.
This, however, is not the situation in the country.
The ICJ expresses concern at the persistent lack of independence of the Bar Association of Azerbaijan; indeed, it has actually played a role in undermining the work of lawyers defending human rights. The situation is exacerbated by recent hasty reforms that prohibit lawyers from appearing in any court hearing unless they are members of this non-independent Bar association, furthermore without a sufficient and meaningful transition period. This seriously curtails access to justice for human rights violations in the country.
