We've submitted a Universal Periodic Review report on Azerbaijan to UN Human Rights Council

Feature
15 Feb 2024
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Our report to the UNHRC focuses on the ability to practise law independently in Azerbaijan, and the lack of compliance with the European Court of Human Rights judgments.

We've submitted a report to the United Nations Human Rights Council on Azerbaijan, which focuses on the lack of:

  • judicial independence
  • guarantees to exercise the legal profession independently
  • compliance with European Court of Human Rights (ECtHR) judgments

Summary

The main findings of the report are:

Lack of judicial independence

Judges and prosecutors regularly take instructions from the Presidential Administration and Justice Ministry.

The Justice Ministry controls the Judicial Legal Council, which oversees the selection of judges, their transfer, promotion and disciplinary proceedings.

The nine judges of the Constitutional Court are appointed by parliament upon presidential recommendation.

Restricted access to justice

Judges and courts restrict citizens’ access to justice through:

  • delays in providing copies of judgments
  • failure to summon parties, as required by procedural legislation
  • violation of the relevant code of conduct by judges during proceedings
  • arbitrary rejection of evidence
  • unreasonable restrictions to the right to appeal
  • systematically favouring prosecutors’ arguments over defence counsel’s (as also established by the ECtHR in Hasanov and Majidli v Azerbaijan: first instance and appeal courts did not consider applicants’ arguments and “merely accepted the police officers’ version”)

Inadequacy of the legislative and regulatory framework

Provisions in the Law on Advocates and Advocates’ Activity are too broad and vague to adequately regulate disciplinary action against lawyers.

The law provides discretionary powers to the Azerbaijani Bar Association (ABA) Presidium and the Disciplinary Commission, facilitating arbitrary application and imposition of disproportionate disciplinary measures.

It also undermines legal certainty for lawyers, making it almost impossible for them to know what they could be disciplined for.

In October 2018, a new regulation was issued by the ABA Presidium on the “organisation and activities of the lawyers’ offices” through which the ABA has extended its control over lawyers’ activities and the establishment, structure and functioning of so-called “legal bureaus”.

The Charter on the Rules of Conduct of Lawyers of 2017, updated in December 2020, contains very restrictive provisions, particularly violating lawyers’ right to freedom of expression. Disciplinary action can be taken, and in practice is, against lawyers who criticise the ABA or the state.

Lack of admission to Azerbaijani Bar Association on political grounds

There is arbitrary non-admission of lawyers to the ABA, as well as arbitrary reinstatement (in response to external political pressure or when a lawyer publicly praises the president of Azerbaijan).

Contrary to what the ABA Presidium previously alleged, and as shown by one of its recent decisions, it is possible to reinstate lawyers who were disbarred through an administrative decision that it itself can take (without necessity of a prior court judgment).

The mentality of the ABA Presidium remains that lawyers serve the state and the president, rather than being independent professionals who represent their clients and uphold the rule of law.

Attacks on lawyers

Lawyers suffering attacks – such as a beating in the courthouse, search and seizure of documents, or being prevented from meeting a client – do not receive support from the ABA (which through its silence seemingly implicitly condones such attacks).

Lack of compliance with ECtHR judgements

Azerbaijan has not complied with at least two ECtHR judgments against lawyers who were disbarred (Namazov v Azerbaijan; Bagirov v Azerbaijan), as well as other ECtHR judgments.

Our recommendations

1. Ensure that legislation and regulation is amended so that:

  • admission to the legal profession follows due process with objective and transparent criteria
  • decisions on admission are reasoned and made available to applicants
  • the qualification commission consists mainly of lawyers, representing different practice areas including human rights law, and
  • any disciplinary proceeding follows due process, is decided by an independent and impartial body, with the possibility of appeal

2. Ensure that provisions of the Lawyers’ Code of Conduct that interfere with lawyers’ right to freedom of expression or other rights, especially Articles 2.11 and 2.13 are amended and brought into line with international standards.

3. Ensure that the ABA’s independence from government is strengthened through amendments to its governance.

4. Ensure that disbarment and suspension remain ultimate measures, only reserved for the most serious breaches, and that the grounds for such actions are established by law or adequate regulation.

5. Ensure the compliance with ECtHR judgments and decisions of other international bodies, including the reinstatement or admission of lawyers previously disbarred or not admitted to the ABA on political grounds.