The Right to Defense: Legal Services in Azerbaijan

Samira Aghayeva, lawyer

The Right to Defense: Legal Services

- What are the ways of defending rights provided for citizens by the legislation of the Republic of Azerbaijan? Who shall defend (represents the interests of) a citizen of Azerbaijan according to the criminal and civil codes?

According to the legislation of the Republic of Azerbaijan, citizens can either defend their rights in court directly or enjoy legal support. Previously, a representative could represent citizens in civil and administrative courts. The institution of representation was provided for in civil procedure, administrative procedure and criminal procedure legislation. However, the parliament adopted amendments to the legislation that were enforced starting January 1, 2018, according to which the institution of representation in the courts was limited. Thus, now citizens’ representatives in courts for civil and administrative cases can be either close relatives (spouses, parents, children, adopted children, adopting parents), or members of the Bar Association. In criminal cases, as before, only members of the Bar Association can act as defenders.

After the institution of representation was limited in the country, about 10,000 practicing lawyers became jobless. That is, the changes in the law affected not only ordinary citizens who acted as representatives in civil and administrative courts, but also the group of practicing lawyers who were not members of the Bar Association, but used to represent citizens in local and international courts for years. Thus, the state deprived 10,000 practicing lawyers of their jobs. This caused their discontent. A group of practicing lawyers strongly protested, even held a press conference to which lawyers, advocates, representatives of diplomatic missions, and the press were invited. The administration of Baku city did not authorize a rally to be held by lawyers scheduled for November 8, 2017, which was appealed first in the courts of Azerbaijan, and then a complaint was sent to the European Court of Human Rights (ECHR).

Thus, the amendments made by the Parliament to the legislation deprived citizens of professional legal protection in civil and administrative cases, as well as deprived about 10,000 practicing lawyers of their jobs.

- How large is the population of Azerbaijan and how many current members of the Bar Association are there in the country?

Currently, there are 1,503 lawyers in the Bar Association of Azerbaijan. There are 393 lawyers in the regions of Azerbaijan, of which 143 lawyers lead private practice. In the capital, the number of active lawyers is 1,110, of which 105 lawyers have private practices. There are 27 law firms in Baku, there are 15 in the regions. In 2018, 553 people were admitted to the Bar Association.

It should be noted that the population of Azerbaijan according to the latest statistical data is 10 million people. The total number of lawyers is 1503. This means that there is 1 lawyer per six and a half thousand people. Terrifying reality.

Thus, given the lawyers’ excessive workload, one cannot count on the effective work of Bar Association members in the protection of citizens’ rights.

- How is the admission held and who is admitted to the Bar Association?

Independent lawyers with a certain social status, who participate in international conferences, training sessions, seminars, act as experts on a number of legal issues in international structures, file complaints with the ECHR on political matters, and most importantly, have an opinion on the activities of the current Bar Association and in particular, its leader Anar Bagirov are not admitted. Among the lawyers not admitted to the College are those who are members of one or another oppositional political organization. Ever since the first day after the amendment to the legislation, I was convinced that restricting the institution of representation was a political decision. Even the speed with which the parliament adopted these changes caused doubts about the positive effect of the adopted changes.

Appealing to the European Court of Human Rights (ECHR) for many illegally convicted persons is the only chance to achieve justice. Currently, citizens themselves, their representatives, or lawyers can apply to the ECHR. However, the Chairman of the Bar Association - Anar Bagirov repeatedly spoke at international conferences about the fact that only members of the Bar should be representatives to the ECHR. This approach is supported by the government. During the period of communication on a concrete case between the ECHR and the government, the government constantly indicates that only members of the Bar Association can apply to the ECHR.

However, according to the regulations of the ECHR, it is not necessary to be a member of the Bar Association for appeal, and the ECHR considers our appeals. I regularly appeal to the ECHR, and my applications are considered.

- How much do a lawyer’s services cost?

A lawyer’s services are paid for in accordance with the concluded contract for the provision of legal services. This contract specifies payment for servicing case at each stage of trial (in the court of first, appeal and cassation instances), as well as during investigation. Taxes are paid in accordance with the contract for the provision of legal services. No specific amount is designated by law. Everything is determined on the basis of voluntary negotiations between the lawyer and the client. According to Article 19 (III) of the Law of the Republic of Azerbaijan on Advocates and Advocacy, law firms or lawyers leading private practice are prohibited to limit the amount of payment for the provision of legal assistance. That is to say, as it was already mentioned above, the client and the lawyer conclude a contract whereby they determine the amount on a voluntary basis.

- What distinguishes the work of a lawyer hired by a citizen from the services of a lawyer provided by the state?

By law, the work of a lawyer hired by a citizen and the work of a lawyer provided by the state, in principle, should be no different, since, according to the law, both have the same rights and duties. They differ from each other only by the fact of appointment: one is chosen by the client (citizen), the other is appointed by the state in case the citizen does not have the financial means to involve the lawyer of their preference. Once again, I will emphasize – if a citizen has no financial means. According to the criminal procedural code, the detainee is provided with a list of lawyers from a law firm, located in the same area as the law enforcement agency that detained the citizen. This detainee himself/herself chooses a lawyer who proceeds to defend him/her at the expense of the state. Previously, payment for 1 hour of work of a state-appointed lawyer was 2 manats (about 1 euro), now this cost has increased to 6 manats (about 3 euros). In principle, the activity of both a lawyer provided by the state and hired by the citizen himself/herself must be quality and effective work.

However, the low cost of a state-appointed lawyer affects effective case management. If we look at the statistics you will see that specifically lawyers by appointment fail to take 90 percent of the decisions on the choice of preventive measures in the form of arrest to the Appeal Court. And of course, in this case we rule out all probability that illegal arrest orders will be appealed in the European Court of Human Rights.

Over many years, I have been following trials of politically motivated cases. When a member of an opposition party or a public activist, a “difficult” journalist is detained, the lawyers selected and demanded by the detainees are not allowed at the initial stage of investigation. The investigation invites an “easy” lawyer (in most cases, they are appointed in violation of the criminal procedure code), who signs under whatever he/she is said to, without paying attention to the signs of torture (political activists have repeatedly told about this during an open court session), and, of course, does not file complaints on torture and inhuman treatment. In courts, the work of state-appointed lawyers in most cases is limited to their physical presence.

Lawyers who publicize the facts of torture and inhuman treatment of their clients are excluded from the Bar Association. Among vivid examples are the expulsion of Alaif Hasanov, political prisoner Leyla Yunusova’s defender and that of Yalchin Imanov, political prisoner Abbas Huseynov’s defender.