Reform of the Bar as an integral part of judicial reform

***

-The consequences of the abolition of the institution of representation today are voiced by officials. Do you think the government can resume the activity of the institute of representation?

-The fact that the abolition of the institute of representation will create negative consequences for us, NGO activists, warned in October-November 2017. It was clear that such problems would appear, since the number of lawyers in Azerbaijan is very low. By the number of lawyers, Azerbaijan is in last place in Europe. Especially outside the center of Baku and in the regions. There is a serious shortage of lawyers. Despite this, official and official authorities denied the existence of the problem during that period and beyond. Currently, the situation has reached the point that the existence of problems in this area is confirmed.

However, despite the confirmation, I am skeptical about the restoration of the institute of representatives, since the experience of October-November 2017 shows that the position on this issue is final. Not any serious factor that can change the position. Usually, when the authorities go to certain changes, they declare it loudly. The current recognition of the small number of lawyers is in the form of recognition of the problem. Because during 2018, although there was an increase in the number of lawyers, however, the authorities are not satisfied with its pace. Particularly difficult is the situation in the regions. For this reason, this comment I am commenting more as a message to the new leadership of the College. That is, do your job better and increase the number of lawyers.

-How do you think, who interferes with the activities of the institute representatives? Who can prevent the restoration of the activities of this institution? To whom and why does not want its recovery?

-The main quality of the institution of representation was that it was the only unregulated institution within the judicial system (justice). As is known, the dependence of judges and prosecutors was ensured, and the mechanism of removal of disobedient lawyers works. Only the representation was the only independent area where it was impossible to implement any measures. That is, the institute of representation contradicted the prohibition and justice system existing in Azerbaijan. From this point of view, after a certain time the system would want to get rid of this institution. The issue of liquidation of representation for a long time was illegally on the agenda of the system. In 2011-2012, this issue was discussed "on the sidelines" of the judicial system. However, at that time no steps were taken in this direction. I believe that the elimination of the institution of representation should be considered in the framework of the trend of tightening against civil society after 2014. In 2014, the NGO institute was deprived of sources of external funding; in fact, it was destroyed. Then, in 2016-2017, a tough campaign against online media was conducted. In 2017-2018, restrictive measures were taken in the direction of representation and independent lawyers. The primary reason for this tightening was the loss of tolerance after the presidential elections of 2013 of the current political elite of Azerbaijan to civil society with its center in Baku, not fully independent and marginal. After 2013, the authorities abandoned the political consensus of 2005 (this consensus was based on a certain tolerance for the civilian sector against the background of neutralizing the political opposition).

I do not know the exact reasons for this refusal, and the suggestion would have looked speculative. Another reason is the economic crisis in 2015. After this economic crisis, the government was forced to further strengthen political and economic concentration and increase control.

I believe that these factors have caused a change in the opinion of the current political elite in the matter of the liquidation of representation. That is the position that took over.

Naturally, it is necessary to take into account the Russian factor. The political governance of Azerbaijan has influence and reforms in Russia. Before Azerbaijan, the liquidation of the institution of representation and the creation of a lawyer monopoly took place in Russia, and there were discussions. In a phased manner, for about 5-6 years, Russia laid the foundation for the transition from representation to a lawyer monopoly. Naturally, Azerbaijan has applied this in its political context, disabling the relatively independent institution. I believe that now in the political elite (and more specifically in the Presidential Administration); the correctness of the position to eliminate the institution of representation has constituted the majority. Therefore, the prospect of restoring representation is impossible. There are not yet formed tough factors causing a change in this position.

- There is an opinion that the institute of representation was liquidated because the Bar Association became a monopolist. Experts note that today we are experiencing the consequences of this. In respect of several independent lawyers defending the interests of political prisoners, disciplinary enforcement has begun. That is, the representatives could not protect these prisoners on these courts. Experts say that now they are trying to leave these political prisoners unprotected, punishing the lawyers defending them. In your opinion, how much does this correspond to reality?

- In fact, in a civilized world, the presence of a lawyer monopoly is a normal phenomenon, since the licensing of persons who have studied law and engaged in representation in court has a legitimate aim. However, the main condition for ensuring the attorney monopoly is the independence of the legal profession. Currently, in Azerbaijan, the professional structure of lawyers - the bar association is not de facto independent, depends on the government. In addition, in the matter of admission to the Bar, both legal and non-legal methods (gives instructions to the Bar), the authority exercises control. As regards legal methods, this is the appointment of a simple majority of commission members on the specialty by the government and the Supreme Court; The Academy of Justice plays a dominant role in compulsory training, which is one of the stages of admission. In Azerbaijan, the lawyers who want to carry out independent activities, participate in politically motivated cases, and have active social and political position, are punished.

It was noted that the institute of representation was independent and made it possible to avoid such pressure. However, since the legal profession is dependent, it does not possess such capabilities. For this reason, I agree that the real goal of liquidating the institution of representation and creating a lawyer monopoly is to disable independent lawyers and take control of this area. This control is necessary in order to "punish the disobedient," or to distance one from the profession by refusing admission to the bar. It is no coincidence that in 2017-2019 at least two lawyers were removed from the bar for their activities (Yalchin Imanov and Irada Javadova). The activities of four more were suspended for a certain time (Fahraddin Mehdiyev, Agyl Laidj, Neymat Kerimli, Asabali Mustafayev). At least two were reprimanded for similar reasons (Fuad Agayev, Elchin Sadigov); disciplinary proceedings are being conducted against two lawyers (Shahla humbatova and Fariz Namazly). All of these lawyers are united in the fact that they work in the field of human rights, making up 70-80% of lawyers who work with politically motivated cases. In addition, for prejudiced and subjective reasons, the candidates who deal with human rights (members of the Group of Lawyers Practitioners) were not admitted to the bar. This is more information that has been made public. There are those who do not spread about what happened to them. The picture, of course, terrifying. The fact that in this country, the main part of human rights lawyers is punished, and the new ones are not accepted in any way, proves once again that the de facto government plays the role of the controlling structure over all professional legal profession. All this plays a warning role for others who are beginning to beware and do not go into the field of human rights protection. In turn, political prisoners and those who faced offenses in some other form remain unprotected. It also makes it impossible or very difficult to bring cases in the future to international tribunals and the European Court. Therefore, I agree with the experts' comments that the lawyer monopoly was created as an obstacle to human rights defenders.

- However, on the other hand, the authorities and the Bar Association confirm the small number of lawyers in the country, suggesting an increase in the number of lawyers. In your opinion, is this a solution? How much should the number of lawyers be increased so that they are enough for all citizens of the country?

- Increasing the number of lawyers is a necessity. Azerbaijan is so far behind in this issue. In particular, the situation is difficult in the regions. For this reason, an increase in the number of lawyers may seem like a partial resolution of the issue.

However, in my opinion, an increase in the number of lawyers is not the only problem. The main issue is ensuring the independence of the legal profession. If independence is ensured, an increase in the number will not play a decisive role, since lawyers will not be afraid to take politically motivated cases or cases related to human rights and their effective protection.

- How do you assess the work conducted in the framework of judicial and legal reforms? What should be done for the normal and independent functioning of lawyers and the institution of representatives?

- The previous judicial reforms carried out by the authorities were unsuccessful, but we continue to talk about such reforms. So far, these reforms have not promised prospects, therefore, the expectations from new reforms are not high. For reform success, independence is the key word. The current government, however, does not particularly want the independence of the court, so my expectations are low.

Regarding the topic of lawyers, in November 2017, the Group of Practitioners Lawyers, of which I am a member, published its position on lawyers' reforms in social networks.

https://www.humanrightsclub.net/ictimai-v%C9%99killik/2017/praktik-huquqsunaslar-qrupunun-v%C9%99killik-islahatina-dair-lex-ferenda-t%C9%99klifl%C9%99r-paketi/).

Naturally, neither the government, nor the leadership of the Bar Association had any discussions with us in this connection and our proposals were not taken into account. For reforms in the legal system, we take as a basis the condition of the actual independence of this professional structure. For this, we propose the formation of a new professional structure for a country or in a regional order. In our proposals, we preferred the anti-concentration regional institute. In addition, we believe that the new structure should be formed not by the current lawyers, but by lawyers and practitioners who have been carrying out legitimate professional activities for a long time (representatives). For this, we, practicing lawyers, proposed the establishment of new professional associations. Offered and its mechanism. We believed that only these new professional structures and their unified superstructures throughout the country, which are unified associations, should regulate the professional activities of the legal profession, resolve disciplinary issues and the reception of lawyers. We also proposed to indicate openly in the legislation the powers of lawyers. This can prevent unreasonable restrictions on lawyers who are putting in law enforcement.

However, as it was noted, the government and the Board, which depends on it, did not discuss these issues. As an alternative proposal, the restoration of the institution of representation was announced. However, the government does not agree. I currently support these proposals. I believe that as an integral part of the reform of the judicial reform, the bar should go in this direction. I do not think that the current government reforms will be successful.