Report on Politically Motivated Obstacles to the Professional Activity of Advocates
A study group of graduates of the Young Human Rights Defenders trainings of the Institute for Democratic Initiatives (IDI) has prepared a report on politically motivated obstacles to the professional activity of advocates in Azerbaijan.
The following local legislation was analyzed during the study, which examined the problems related to the legal profession, especially in the field of human rights protection:
-Law on Advocates and Advocacy;
-Criminal Procedural Code of the Republic of Azerbaijan;
-Civil Procedural Code of the Republic of Azerbaijan;
-Administrative Procedure Code of the Republic of Azerbaijan;
-Regulations on the Code of Ethical Conduct of Advocates.
During the study, the study team found a number of shortcomings in these documents:
1) In Article 7 of the Law on Advocates and Advocacy, entitled Provision of Advocacy, although the article states that it maintains confidentiality between the advocate and the client, it does not specify the legal consequences of obstruction of the advocate’s professional activity by the courts, government bodies, and third parties;
2) Although Article 9 defines the duties of the Bar before the courts and government bodies, it does not stipulate a single obligation of the Bar to the clients and advocates;
3)Article 17, which defines the concept of advocate’s secret, is very broad and general. Furthermore, the definition and scope of the confidentiality of the preliminary investigation, which restricts the advocate’s freedom of expression and creates disciplinary liability, is generally not defined by any legal act. In practice, this scope is determined by the investigator or prosecutor;
4)Paragraph 8 of Article 22, this Law as a whole, does not set out the grounds for expulsion from the Bar Association and the criteria to be followed by the institution in determining these grounds;
5)There are no deadlines for responding to inquiries and information requests addressed by advocates to government bodies and no liability measures in case of non-response. Articles 526-528 of the Code of Administrative Offences provide for an administrative reprimand for failure to consider the submissions and documents of courts and officials in a timely manner. However, no such sanction has been established to respond to or timely respond to inquiries and information requests addressed by an advocate who is the basis of defense activities;
6)When the defense concludes that the determination of any circumstance requiring special knowledge, i.e. the expertise, will be in favor of the accused during criminal prosecution in the form of public or private prosecution, he/she must apply to the person conducting the investigation. This means that the defense depends on the subjective position of the other party in the collection of evidence;
7)Unlike Georgia and Armenia, the Regulations of the Republic of Azerbaijan on the Code of Ethical Conduct of Advocates contain principles, which are difficult to apply, such as loyalty, public trust, cultural behavior, renunciation of tangible and intangible benefits, and publicity;
8)Advocates participating in the survey conducted as part of the study noted that the Regulations restrict their freedom of expression. Moreover, according to the results of media monitoring of VOA Azerbaijan, an independent media outlet, over the past three years (2018, 2019, 2020), there has been a decline in the number of advocates speaking to the media since the adoption of the Regulations.
The study also revealed that advocates face many problems and illegal actions, in both pre-trial and court proceedings.
-Advocates are prevented from meeting with their clients on illegal grounds, such as "today is Sunday", "today is Saturday", "sanitation and disinfection work is being carried out", "rooms are being repaired", and so on;
-Although a document confirming the power of attorney is a warrant according to the legislation, in practice, advocates are required to have "letters of permission" issued by the investigating authority;
-In addition to the inspection of advocates, their confidential documents relating to the client are opened, and even their contents are read and censored. 46.7% of the advocates who participated in our survey said that they were subjected to the inspection by the staff of penitentiaries or pre-trial detention centers in all of their political cases, and 80.7% said that their confidentiality was violated in political cases;
-In practice, especially in political cases, a state-appointed advocate is not interested in defending the rights of the accused, signs all necessary documents, and does not object to any procedural action. This, in turn, complicates the case of the accused and, consequently, his/her defense at a later stage;
-In practice, the principle of equality of arms is violated. 93.8% of the advocates who took part in the survey said that their requested solicits were not granted without grounds;
-According to the advocates’ notes, most appeals for disciplinary action come from the bodies of the prosecutor's office, courts, and penitentiary services. Especially during the investigation of politically sensitive cases, when advocates inform the public about the illegal actions of state bodies or request solicit for the investigation of these illegalities during the trial, complaints are filed against them to the Bar Association or they are threatened with complaints;
-Although the law provides for disciplinary proceedings only in cases of violation of professional activity, in practice, it is observed that disciplinary proceedings have been instituted against advocates on the basis of their personal opinions and statements.