GROUP OF PRACTICING LAWYERS PRAKTİK HÜQUQŞÜNASLAR QRUPU. BRIEF Baku October 2017

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1 GROUP OF PRACTICING LAWYERS PRAKTİK HÜQUQŞÜNASLAR QRUPU BRIEF Baku October 2017 [Title] AZERBAIJAN: LEGISLATIVE PROPOSAL RESTRICTING ACTIVITIES OF INDEPENDENT LAWYERS [Alternative title] LEGISLATIVE PROPOSAL ON RESTRICTION TO PRACTICE OF LAW BY NON-BAR LAWYERS Summary: Parliament prepares to restrict court representation by independent (non-bar) lawyers. This restriction will cause dramatic negative impacts on access to justice and legal assistance and independence of lawyers in Azerbaijan. - The Group of Practicing Lawyers (Praktik Hüquqşünaslar Qrupu) is an informal and temporary network consisting of several independent (non-bar) lawyers of Azerbaijan and established on 10 October 2017 with a single issue to organize campaign against recent legislative proposals restricting activities of independent lawyers in Azerbaijan. For this purpose, the Group presents this brief to interested bodies/parties/institutions in the issue of the legal profession in Azerbaijan. This brief is interim and contains only general aspects of this issue. For more information, please contact group.practising.lawyers@gmail.com. We are ready to provide more information. - 1

2 I. INTRODUCTION On 6 October 2017, Parliament of Azerbaijan (Milli Məclis) released a press release on the Draft Bill on procedural legislation and the Bar Act. 1 It becomes clear from the text of the press release that a plenary session of Parliament (during next days, probably on 20 October 2017) will begin deliberations for Draft Bill proposing amendments to the Code of Civil Procedure ( CCP ) and the Code of Administrative Court Procedure ( CACP ) and the Bar Act (Vəkillər və vəkillik fəaliyyəti haqqında Qanun). According to Draft Bill practicing lawyers (who are not member of the Bar Council) and other lay practitioners will be prohibited in part from practice of law such as to appear before the courts and to represent individual persons (natural persons) in lawsuits in any kind of cases. If Draft Bill will be approved practice of law regarding court representation will be allowed only to lawyers who are member of the Bar Council and only they will have the right to represent individuals before the courts. In subsequent statements, different parliamentarians from ruling party repeated their intention to pass this Draft Bill. II. BACKGROUND INFORMATION a. Existing legal framework The Bar Act (entered into force on 27 January 2000, as amended 2013) and sets out the framework for the functioning of the regulated legal profession. The Act defines that lawyer who admitted to the Bar Council is authorized carry out the functioning of Bar lawyer (vəkil). 2 Furthermore, the Act stipulates that following issues shall be exclusive areas of operation (monopoly) for Bar lawyers: defense of criminal defendants and suspects in area of criminal cases and quasi-criminal regulatory offences; acting and pleading in the Supreme Court and in the Constitutional Court in any kind of cases. In meantime, Azerbaijan have unregulated legal professional non-bar lawyer phenomena (this phenomena is not exclusive to Azerbaijan, also Russia has such alternative lawyering). Therefore, CCP (Section 69) and CACP (Section 31) and other procedural legislation allows court representation in civil cases and administrative disputes for other than Bar lawyers. For such court representation, notarized power of attorney is sufficient. Using this legal instrument many lawyers who are not Bar member and other lay practitioners can represent persons before courts in civil cases and administrative disputes. Therefore, there are three types of legal representation: 1 Press release of Parliament ( ), in Azerbaijani HÜQUQ SİYASƏTİ VƏ DÖVLƏT QURUCULUĞU KOMİTƏSİNİN İCLASINDA : 2 Bar Act (in Azerbaijani) available (as amended 2013): 2

3 1) Bar lawyers (in Azerbaijani is called vəkil) lawyers who are members of Bar Council 3 and they have right for representation in any types of cases (in practice mostly used in criminal cases and representation before Supreme Court); 2) Non-Bar lawyers (in Azerbaijani is called hüquqşünas and (or) nümayəndə) they have right for representation in civil cases and administrative disputes, but not for reprensentation in criminal cases and representation before Supreme Court and Constitutional Court (in practice most famous representation for civil cases and administrative disputes); 3) Lay (non-lawyer) practitioners (in Azerbaijani is called nümayəndə) the same status with non-bar lawyers (in practice such types of representation mostly used in rural areas and suburban areas of Baku where deficit of lawyers is a great problem). Above-mentioned Draft Bill aims to change this kind to practice of law and to exclude non-bar lawyers and lay practitioners from court representation. b. Context of legal profession in Azerbaijan Usually in Western context legal profession is independent from governmental entities. However, in Azerbaijani legal history as part of Soviet period legal profession was dependent from governmental institutions and Bar Council professional association of lawyers was under control. After breakup of Soviets however legal profession could not gain full independence from governmental entities. After breakup of Soviets in Russia and also in Azerbaijan (where is under Russian influence legislative matters) establishment of alternative professional association of lawyers widely discussed. However, such discussions failed due to there was not political will for this and fierce objections by conservative Soviet-period lawyers who controls existing Bar Council. During , the Government created alternative legal services for non-bar lawyers. However, this reform was short-lived and failed. During , new (and existing) Bar Act 4 passed. However, even this new law gave most powers to traditional -Soviet period Bar Council and excluded alternative lawyers. After becoming member of Council of Europe, Government of Azerbaijan agreed some reforms in legal profession for maintaining independence of legal profession. For these purposes in some Amendments passed to the Bar Act and it agreed that new Constitutive Convention will be take place including with participation of alternative independent lawyers. However, new Constitutive Convention did not include participation of alternative lawyers and held under command traditional lawyers with help of Ministry of Justice. After this Convention most of 3 Bar Council is named Vəkillər Kollegiyası in Azerbaijani (also known as Collegium of Advocates or Bar Association or Azerbaijani Bar Association in different publications). In this brief, it mentions as Bar Council pursuant to European tradition. 4 Bar Act is named Vəkillər və vəkillik fəaliyyəti haqqında Qanun in Azerbaijani (also known as Law on Advocates and Advocacy or Law on Advocates and Advocate Activities in different publications). In this brief, it mentions as Bar Act which is sense-for-sense translation of Azerbaijani name. 3

4 alternative and critical lawyers denied to entry to Bar Council and leadership of Bar Council consisted of from traditional and government-oriented lawyers. This leadership did not change mostly until now (even changes in subsequent Convention in 2012 included only governmentinfluenced lawyers). Since 2005 Bar Council held Bar exams and mostly candidates who are perceived as unwanted denied in oral interview period of Bar exams. As well as Bar Council disbarred lawyers who are participate in problematic cases (or strategic cases) such as political cases and other human rights violations. Such disbarred lawyers continues their activities as non-bar lawyers. In addition Governmental organizations and High courts have decisive participation in entries of Bar. In meantime due to CCP and since 2012 due to CACP non-bar lawyers continued their experience in civil cases and administrative disputes. Since 2000 representation with non-bar lawyers lived boom in legal practice because of access to non-bar lawyers are easier than Bar lawyers and there were deficit of Bar lawyers. Furthermore, until 2014 legal NGOs carried out legal assistance to victims of human rights violations. After de facto closure of NGOs in 2014 non-bar lawyers continues to give legal assistance in individual basis. Also most cases are taken to international courts or tribunals including European Court of Human Rights by non-bar lawyers. Consequently, the following issues can be summarized about legal profession in Azerbaijan: 1) Bar Council is not de facto independent professional association and is under de facto control of the Government. Leadership is conservative and is government-oriented; 2) Number of Bar lawyers is very low and there is no interest to rise this number by Government and leadership of Bar Council. Government has decisive participation in entries to Bar Council; 3) Bar Council use arbitrary disbarment against lawyers who participate in political and human rights cases or perceived unwanted otherwise; 4) Representation with non-bar lawyers is very famous way in Azerbaijan in civil cases and administrative disputes and mostly used by individual persons in their cases. III. NEGATIVE CONSEQUENCES FOR LEGAL PROFESSION AND ACCESS TO JUSTICE A. Strong monopoly of Government controlled or Government influenced 5 Bar Council over litigations will be enhanced and will have negative effects to access to justice and legal assistance after non-bar lawyers (independent practicing lawyers) will be kept away from litigations. a. According to many international reports, including fact-finding mission of international organizations, Bar Council is not an independent institution capable 5 For example, US Department of State describes Bar Council in Azerbaijan as government-influenced : 4

5 of protecting the interests of the legal profession in Azerbaijan. Instead, as documented in a report of the International Bar Association s Human Rights Institute it seems to act as an arm of government, frequently subjecting members involved in politically motivated trials to biased disciplinary proceedings resulting in disbarment of at least 10 lawyers since establishment of Bar Council. 6 B. Number of available lawyers who can represent litigants before courts will be dramatically fall down and will be limited to the numbers of Bar lawyers. a. Azerbaijan ranks last place in the number of Bar lawyers per its population in Europe according to Analysis of data by the European Commission for the Efficiency of Justice (CEPEJ) Council of Europe on According to current statistic, there are around 900 advocates (member of Bar Council) in Azerbaijan. Approximately, 700 of these Bar lawyers operate in Baku and 200 operate in outside Baku. In Azerbaijan, the number of lawyers per 100,000 inhabitants is around 9-10 lawyers in comparison with the European average (165 lawyers and legal advisers per 100,000 inhabitants). C. There are restrictive and discriminative admission practice to Bar Council and entries under influence of Government and there are arbitrary disbarment procedure in Bar Council. a. Qualification Commission of Bar Council is consists of 11 members. 5 of them are appointed Bar lawyers by leadership of Bar Council and 3 of them are judges appointed by Supreme Court and 3 of them are lawyers appointed by Ministry of Justice. Thus simple majority of Qualification Commission are under control of Government and Supreme Court and such kind of body is not regarded as independent by international organizations. b. Exams for admission to Bar Council carried out once two - three years. Admission requirements are amounted to restrictive barriers and discriminative in nature. Thus, lawyers only who have three years full time work experience as a lawyer can apply for admission while a practicing lawyers who are involved to practicing lawyering as sole-entrepreneurship for a years are deprived from the right to apply for exams to Bar Council. c. In the meantime, particular concerns is about oral examination, which is stipulated in general by Bar Act. No guidelines on how to conduct an assessment of the examinees and any objective criteria are not exist. The process of examination therefore lacks clear methodology and is unsystematic. Most unwanted candidates 6 International Bar Association s Human Rights Institute Report entitled: Azerbaijan: Freedom of Expression on Trial, May 2013, p a17f5fd4bcbb 7 CEPEJ study: advocates per inhabitants 5

6 dismissed in this period. For example, certain professional backgrounds may automatically bar a person from qualifying, including work with NGOs or with lawyers who are identified with political groups opposed to the Government ( opposition lawyers ) d. Furthermore, there is not specialization of Bar lawyers as all lawyers are required to be admitted from exams heavily on criminal procedural legislation. e. After test exams and interview candidates shall take participation mandatory course in Justice Academy which under control of Ministry of Justice. That is why mandatory course is under control of governmental entities and thus it might be used against independent lawyers for deny of entry. f. Bar Council with help of courts can easily punish any Bar lawyer for their any types of activities. For example, in 2000s two prominent lawyers denied to entry to Bar Council despite they have qualifications merely because of they criticized Council s activities and dependence from Government. 8 Another example is that Bar Council arbitrary ways disbarred lawyers who defended political prisoners and made in these cases legitimate critical statements in courtroom and in press. 9 D. Proposed amendments are discriminative. a. Thus, according to Draft Bill, representation with Bar lawyer is only applied to natural persons (individuals). It does not apply to juridical persons such as companies and banks and they can continue to use their corporate non-bar lawyers for legal representation. Such different treatment is amounted to discrimination on the ground of personal status of natural persons. E. Membership to Bar Council in Azerbaijan does not automatically mean quality of legal assistance. a. Official authorities present Draft Bill that it would serve increase of quality of legal assistance relying that Bar Council is professional association and only it could maintain quality of legal assistance. However, reality is contrary to official version and Bar Council in Azerbaijan could not maintain quality of legal assistance during its period of operation. Due to undue restrictions to membership of Bar Council, its members mostly consists of so called old lawyers and these lawyers are not open for innovation and do not work with new legal instruments (such as European Court of Human Rights and other international instruments). Most applications (communications) have been sent to international courts (especially European Court of Human Rights) and quasi-courts by non-bar lawyers. Moreover, independent lawyers have much more access new legal instruments and until 2014 when NGOs can operate more effectively independent lawyers had got dozens of 8 ECtHR, Intigam Aliyev v. Azerbaijan, 10414/08, communicated case, and Annagi Hajibayli v. Azerbaijan, 6477/08 communicated case, 9 Bagirov v. Azerbaijan, 28198/15, communicated case, 6

7 trainings which give opportunity to them improve their professional quality. In addition, statistics of 2015 on restriction measures in criminal cases (such as remand in custody) indicates that Bar lawyers did not appeal in approximately 97 % cases of remand in custody (criminal law area is under monopoly of Bar lawyers only). Moreover, according to official statistics on criminal cases again displays that approximately more than 99 % criminal cases results with convictions which under monopoly of Bar lawyers. In Therefore, in Azerbaijani context membership of current bar Council is not maintenance for quality. IV. FURTHER INFORMATION ON NON-BAR (INDEPENDENT) LAWYERING IN AZERBAIJAN Traditionally, professional associations of lawyers are considered a natural system of recruitment of legal professionals which is based upon heavily professional elements (success in education and training) and the liability issue - the control over the work provided by lawyers. As these two reasons were cited to persuade the public about legitimacy and justification on the necessity of the recent Draft Bill in Azerbaijan, the following peculiarities of the current frameworks and conditions will prejudice the interests of justice and the principles of access to legal services and the independence of lawyers if proposed amendments will be approved: 1. Attempts to assess of professionalism of non-bar lawyers in comparison with Bar lawyers. a. Draft Bill supporters without any evidence or properly carried out assessment declaring that non-bar lawyers are incompetent in order to deliver legal services before courts. Such assessments of Draft Bill supporters based on the covert narcissist views but no substantive and evidence based reasons. b. Non-Bar lawyers have transformed the legal profession over the past 15 years without any certification and /or license in Azerbaijan. During this time, non-bar lawyers not only strengthened their expertise but they have also implemented compliance system designed for lawyers. Non-Bar lawyers were allowed to register as a sole-entrepreneurs before Ministry of Taxes on the allowed service Provision of Legal Services according to the statistical classification of economic activity types. Moreover, provision of legal services are subjected special reporting procedures that related to legal professionals. Thus, Article 5.1 of the Law of the Republic of Azerbaijan On the Prevention of the Legalization of Criminally Obtained Funds or Other Property and the Financing of Terrorism covers non-bar lawyers and Bar lawyers are under an obligation to report suspicious transactions and other specific cases to Financial Monitoring Service. c. In this context, non-bar lawyers working as an individual entrepreneurs (being registered before Tax Ministry) have delivered different legal services, including legal representation before domestic, as well as international courts such as ECHR. Accordingly, based on a substantive legitimate expectation, non-bar lawyers absolute removal from court representation (litigation) means that government acts 7

8 mala fide that certainly contradicts with the proportionality and non-discrimination principles. d. Now, rather than recognizing that non-bar lawyers have the professional records and recognition to meet the required standards in order to deliver legal services before courts, the Draft Bill supporter unilaterally smearing the non-bar lawyers by declaring that they lack sufficient professionalism and expertise. 2. Liability and the control over the litigation. a. According to the European indicators, most disciplinary proceedings are initiated due to the breach of legal ethics in many countries. Only in Azerbaijan, a major amount of disciplinary proceedings are initiated in connection with the professional incompetence of a lawyer. 10 b. Possibility and existence of the control mechanisms of tax and financial monitoring service authority over non-lawyers' responsibility to sign a contract with clients. c. Consequently, this limitation will not only undermining the rights of the thousands of legal professionals but also ordinary citizens access to legal services and availability of the independent legal services in the market. V. CONCLUSIONS Pass of new Draft Bill would have following negative consequences: a. It would much more curtail independence of lawyers in Azerbaijan. Independent lawyers outside from Bar Council would lose their cases and clients and therefore most of activities of practice of law. Bar lawyers would much more dependent because disbarment will means to end of practice of law for them. For continue practice of law independent lawyers would be dependent much more current Bar Council and the Government; b. It would negative effects on access to justice and legal assistance. Because number of Bar lawyers is very low and the Government and leadership of Bar Council is not intended to raise numbers of lawyers. Therefore after new regulation thousands of people would lose their defenders and live problems in access to judicial institutions; c. It would affects quality of legal assistance. Quality of legal assistance which provided by most of Bar lawyers are outdated and Bar Council is not open to new legal tools. 10 CEPEJ study 2014: HJ%20V%20finale%2025%20juin%202013_arial10_final_en.pdf 8

9 VI. RECOMMENDATIONS In the light of abovementioned worrying development, we are calling interested bodies/parties/institutions immediately: - Strongly condemn this legislative proposals as it will have negative effects for access to justice and access to legal assistance for Azerbaijani population and independence of lawyers; - To urge the Government of Azerbaijan to refrain passing legislative proposals that will have negative consequences for access to justice and legal assistance and independence of lawyers in Azerbaijan; - To call the Government of Azerbaijan to work with paramount international organizations, and local civil society on the development of relevant laws regulating legal profession in Azerbaijan and involve all stakeholders to the process of such development via open and public consultations. CITED INTERNATIONAL STANDARDS: - Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba 27 August to 7 September 1990; - Recommendation Rec(2000)21 of the Committee of Ministers to Member States on the freedom of exercise of the profession of lawyer (Council of Europe). REFERENCES For more details about problems of legal profession in Azerbaijan, see following documents: 1. Human Rights House Network: Human Rights Lawyers at Risk: Making the Case for Protection of Legal Professionals in Azerbaijan, Belarus, Moldova, Russia, and Ukraine, September 2015: 2. The International Bar Association s Human Rights Institute (IBAHRI), report of factfinding mission, Azerbaijan: Freedom of Expression on Trial, 2014: a17f5fd4bcbb 9

10 3. International Commission of Jurists, Defenseless Defenders: Systemic Problems in the Legal Profession of Azerbaijan, November 2016: 4. JUDICIAL SYSTEMS OF THE EASTERN EUROPEAN COUNTRIES Analysis of data by the European Commission for the Efficiency of Justice (CEPEJ) Council of Europe/2014: 5. For failed reforms of legal profession in 2000s please see: OSCE Office in Baku and ABA CEELI, Report on the Situation of the Lawyers in Azerbaijan, March 2005: 6. Lawyers for Lawyers Foundation, Azerbaijan Submission to Human Rights Committee, September 2016: 7. For 1990s period of legal profession please see: International League for Human Rights, Restriction on the independent legal profession in Azerbaijan, September 1999: ct.html 8. For 1990s period of legal profession please see: International League for Human Rights, Legislative regulation of legal profession in Azerbaijan, 2000: eg.html 9. Annagi Hajibayli (Ənnağı Hacıbəyli) and Human Rights Houses Netwrok, Situation of Lawyers in Azerbaijan In Russian - СОСТОЯНИЕ АДВОКАТУРЫ В АЗЕРБАЙДЖАНЕ), September 2014: For comparison Russian legal practice please see: International Commission of Jurists, Towards a Stronger Legal Profession in the Russian Federation, Part II The landscape of legal services provision in Russia May 2015: 10