The Right to Defense in Armenia and Azerbaijan

Yalchin Imanov, lawyer, former member of the Bar Association (Azerbaijan)

Azerbaijan takes one of the first three places by the number of annual complaints to the ECHR

- Is the right of Azerbaijani citizens to protection in court guaranteed? Who represents their interests in criminal and civil cases? Are legal services available to citizens in terms of the sufficient number of lawyers and their fees?

According to the Constitution of the Republic of Azerbaijan, the state is obliged to provide quality legal assistance to citizens. According to the legislation of the Republic of Azerbaijan, only its citizens who are members of the Bar Association can provide legal assistance. According to the amendments to the legislation, on January 1, 2018, the institute of representation was liquidated and after that only members of the Bar Association can act as defenders. According to the criminal procedural law, only advocates can be defenders in criminal proceedings. For civil cases, the citizen whose rights has been violated can defend himself/herself in the first instance and appeal courts, and only in the court of cassation (in the Supreme Court) lawyer’s participation is mandatory.

After the liquidation of the institution of representation, the rates for legal service increased multiply. This led to the fact that the protection of poor citizens has been reduced to almost zero. The situation is aggravated also because there is no legislation in Azerbaijan, according to which poor citizens would receive legal assistance in matters other than criminal ones. In the media, we often see questions asked by citizens in connection with self-defense in courts. I often get information that because of high fees for lawyers, citizens cannot defend themselves in the courts even on such simple issues as family disputes.
This gives us reason to believe that the fees for legal services do not correspond to people’s financial capacity.

- How effective is the work of attorneys on representation and that of lawyers hired by citizens in modern Azerbaijan? In what proceedings (criminal, administrative) and how often do citizens succeed in court with the lawyers’ help?

Naturally, the work of a hired lawyer is considerably different from that of an appointed one. We can observe this difference when reading the judicial and investigation documents.

For example, if you take the administrative case of a political activist, an administrative protocol is drawn up for administrative arrests. As a rule, the participation of a hired lawyer or attorney on representation in the police is not ensured. A lawyer provided by the state is invited to the court of first instance. When reading the documents, it becomes clear that the participation of the attorney on representation is a mere formality. These advocates usually do not ask the witnesses any questions to, do not bring forth motions against ineffective investigation by investigative authorities, and do not appeal against the rulings.

The work of lawyers provided by the state is not effective. Therefore, citizens who have financial means, prefer to hire attorneys, who will fix the violations of procedural norms and can apply to higher instance courts. Thus, the defense by hired and appointed attorneys is significantly different, and the state-appointed legal assistance in Azerbaijan is a mere formality. One of the reasons is the relatively low payment for state-appointed lawyers’ services. According to a Decree passed by the Cabinet of Ministers, the rate for legal assistance is 6 manats (2 euros) per hour. I consider this is a major and most decisive factor.

If we are talking specifically about criminal cases, regardless of whether this is a political matter or a non-political matter, the courts, as a rule, pass convictions based on indictments. That is why the number of acquittals in one year does not exceed 30. This is the highest figure for Azerbaijan. This means that it is very difficult to achieve justice in criminal courts, and in some cases it is merely impossible. Despite the legal equality of the parties as defense and prosecution, in reality this equality is no more than an illusion. Judges rewrite the conclusions of the investigation as verdicts and pass convictions on the basis of the conclusions of the investigation, thus considering that their work is completed.

In civil cases, success can be achieved in such cases as divorce, minor property disputes, alimony disputes, minor disputes about debts, etc. However, it makes no sense to speak about justice should one of suchlike cases contain an expression of the interests of an official or public entity. In such cases, it makes no sense to talk about the effective protection of citizens.

That is the reason why the number of appeals to the European Court of Human Rights (ECHR) is growing every year. According to the latest data I have read, Azerbaijan occupies one of the first three places in the number of complaints per year. This is due to the disagreement of citizens with decisions made by domestic courts, which once again confirms the ineffectiveness of the legal practice in the country.

- What is the attitude of the society towards legal services? Are there any examples of successful lawyers in cases generating great public interest? And in general, what are the conditions they operate in when the cases are of great public interest?

The absence of an independent judiciary and the corruption of the judiciary determine the society’s attitude towards lawyers. This means that citizens turn to lawyers when it is not possible to resolve the matter in any other way.

As for cases generating great public interest, the opportunity to get a positive result in the management of such cases is practically reduced to nil. The main reason for this is the issuance of custom-made decisions by the courts. In cases of great public resonance, a lawyer is under pressure from law enforcement agencies, the Bar Association, and other bodies that have an interest in a particular case. Lawyers are constantly under pressure and persecution. All this adversely affects the effectiveness of the bar.

-How often do lawyers have to apply to the European Court of Human Rights (ECHR)? What is the attitude of the authorities to the decisions of the ECHR on Azerbaijan, is there a differentiated attitude to these decisions? And what follows if these decisions are not complied with? Are there any examples?

As far as I know, the number of lawyers who file complaints with the ECHR is insignificant - no more than 10 people. But despite this, Azerbaijan is among the leaders in terms of the number of appeals to the ECHR. This is an indication that it is almost impossible to achieve a fair court decision in the country. That is why citizens believe that the only body that can recognize a violation is the European Court.

Despite the insignificantly small number of lawyers applying to the ECHR, constant pressure is put onto them. In the absence of this pressure, Azerbaijan would not be among the leaders, but rather it would become the absolute leader by the number of appeals to the ECHR.

As for the execution of decisions made by the ECHR for Azerbaijan, in the recent years many problems have arisen in connection with the implementation of these decisions. One of the problems is the failure to pay the compensation. Compensations for decisions that were made several years ago are either not paid or are paid only partially, especially in high-profile politically motivated cases.

After the ECHR has passed a decision on a particular case, apart from the payment of the compensation, certain measures should be taken that would further eliminate the violations recorded in the ECHR decision. This is not happening at all. The implementation of the decisions of the ECHR in Azerbaijan is not satisfactory. In my opinion, the non-execution of decisions is intended to weaken the faith of citizens in the European Court of Human Rights.

The execution of ECHR decisions is monitored by the Committee of Ministers of the Council of Europe. In cases of great public resonance, the Committee of Ministers adopts resolutions. However, there is no clear mechanism of responsibility for the non-execution of decisions made by the ECHR.