Fikrat F. Mammadov, Minister of Justice
Ministry of Justice
Inshaatchilar Ave. 1,
Dear Minister Mammadov,
I am writing to express concern regarding apparently politically motivated disciplinary and criminal sanctions taken against two lawyers in Azerbaijan, which undermine their independence as members of the legal profession and create obstacles to their work. One of the lawyers, Khalid Bagirov, has been suspended from the Collegium of Advocates for one year, and the second, Elchin Namazov, has been permanently disbarred and faces criminal sanctions.
International human rights law pays particular attention to the independence of lawyers and imposes upon the authorities the obligation to ensure that lawyers are able to perform their professional functions without intimidation, hindrance, or harassment. We urge you to take all appropriate measures to uphold the government’s international commitments and ensure that Bagirov and Namazov are able to practice law without fear of retribution. They should not suffer from criminal prosecution, administrative sanctions, or other restrictions for merely performing their professional functions.
Case of Khalid Bagirov
Khald Bagirov, 35, is a practicing lawyer and a member of the Collegium of Advocates since 2005. Bagirov represented the family of Elvin Askerov, who died on January 13, 2011 while in the custody of Baku’s Nizami District Police Station. According to the police, Askerov sustained multiple bruises while trying to escape a police chase and died as a result. Askerov’s family alleges that Askerov sustained the injuries as a result of beatings at the police station.
Bagirov represented the interests of Askerov’s family and in that capacity performed such tasks as filing a request to the prosecutor’s office to open a criminal investigation into Askerov’s death. He also gave a number of media interviews alleging that the police tortured Askerov, thereby causing his death. The Baku police chief filed a libel suit against Bagirov in the Yasamal District Court. However, in April 2011 the court dismissed the case as groundless.
The police chief then filed a complaint to the Collegium of Advocates requesting the body take disciplinary action against Bagirov. On August 24, the Presidium of the Collegium issued a decision to suspend Bagirov for one year for breaking attorney-client confidentiality and asserted he had refused to attend the hearing. Bagirov had been invited to participate in the hearing, set for 4 p.m. on August 24. Although Bagirov was in the building where the Collegium sits and met with several Collegium members, he was never invited to present in front of the body. Only later did he learn that a decision was reached without his participation in the proceedings. The decision, which he received on September 15, states that the Disciplinary Committee of the Collegium deliberated his case in his absence because of his refusal to participate. The Collegium ruled that Bagirov violated attorney-client confidentiality by telling the media that Askerov sustained fatal injuries in police custody – information that would have come from Askerov’s family. However, Askerov’s family had themselves made this allegation to the media and never complained about Askerov’s public remarks; in fact these allegations were crucial to the family’s legal argument, which Bagirov raised in court.
Bagirov appealed the Collegium’s decision in the Nasimi District Court and is waiting for the hearing to be scheduled.
Case of Elchin Namazov
Elchin Namazov, 33, is a defense lawyer and a member of the Collegium of Advocates since 2005. His clients include several youth activists who were arrested and convicted in connection with the peaceful protest rallies that took place in Baku in March and April 2011. He is also defense counsel for Bakhtiar Hajiyev, a social media activist who was arrested prior to the March protests and sentenced to two years in prison for military draft evasion.
Among Namazov’s clients is Rufat Hajibeili, deputy head of the youth wing of the opposition political party Musavat. Hajibeili is currently on trial at Baku’s Nasimi District Court, facing what we believe are politically motivated criminal charges of organizing actions promoting “breach of social order,” resisting the authorities, and causing deliberate damage or destruction of property.
During the August 27, 2011 court hearing on Hajibeili’s case, Namazov made several motions requesting the admission of additional material evidence and for additional defense witnesses to be summoned to testify. He also motioned to change the restraining measure for Hajibeili from pre-trial custody to house arrest in light of his health. The presiding judge, Judge Shahin Abdullayev, declined these motions.
In response, Namazov submitted a written motion alleging judicial bias and requesting that Judge Abdullayev recuse himself from the case. Judge Abdullayev refused to consider the motion, which led to an argument between him and Namazov, during which, according to Namazov, the judge threatened to have him expelled from the Collegium.
The hearing then proceeded with the testimony of a witness for the prosecution. Namazov cross-examined the witness in a manner that could have been taken to be criticism of the judge. Soon after, Judge Abdullayev announced a lunch break, after which he dismissed Namazov from the case. He also said he would request that the Collegium of Advocates consider Namazov’s suspension and that the prosecutor’s office initiate a criminal case against Namazov for showing disrespect to the court. Article 289 of the criminal code, “disrespect to court,” carries a penalty of to up to six months of imprisonment.
On September 16, the Disciplinary Committee of the Collegium of Advocates ruled on Judge Abdullayev’s request to sanction Namazov. Namazov sought, but was not provided a copy of Judge Abdullayev’s allegations against him, and so did not participate in the hearing. The committee decided to permanently disbar Namazov. Whether or not Namazov acted appropriately throughout the August 27 hearing, we believe that the generally politically tinged context of the case, the failure of the Disciplinary Committee to provide Namazov with Judge Abdullayev’s allegations, and the sanction imposed – an extremely severe penalty for behavior during a contentious case – raises serious fairness concerns about Namazov’s treatment as a lawyer.
Human Rights Watch is deeply concerned that the Bagirov and Namazov cases raise serious concerns about the ability of lawyers in Azerbaijan to represent individuals to the best of their ability in accordance with professional standards.
Ensuring the independence of lawyers is fundamental to the protection and promotion of human rights. Lawyers play a key role in upholding the rights of defendants, including those prosecuted in violation of their basic rights, ensuring that victims of human rights violations obtain effective remedies and protection, and bringing perpetrators of human rights violations to justice.
The most detailed exposition of the rights and responsibilities of lawyers is found in the United Nations Basic Principles on the Role of Lawyers, adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders in 1990. The Basic Principles set out states’ responsibility for providing guarantees for the unimpeded functioning of lawyers. Principle 16 states:
Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.
Although the Basic Principles are not, in themselves, legally binding instruments, they contain certain principles and rights that are based on human rights standards enshrined in international treaties to which Azerbaijan is party, such as International Covenant on Civil and Political Rights and European Convention for the Protection of Human Rights.
The Basic Principles, rule 27, provide that disciplinary proceedings against lawyers are to be conducted “fairly under appropriate procedures.” The proceedings against Bagirov and Namazov did not appear to meet basic standards of fairness in that the lawyers were not provided a genuine opportunity to contest the complaints made against them.
Both Bagirov and Namazov represent clients who have voiced public criticism of the police and public officials. Human Rights Watch is concerned that the sensitive nature of their clients’ cases and the robust manner in which these two lawyers have represented their respective clients’ interests has led to Bagirov’s suspension and to the permanent disbarment of Namazov and possible criminal penalties against him. Were their punishment to be the result of their exercising their professional functions, it would undermine the rule of law and negatively affect perceptions of justice in Azerbaijan. We urge you to take all appropriate steps to ensure that these lawyers are able to engage in their professional activities without fear of retribution.
Thank you for your attention to this important matter.
Europe and Central Asia Division