The more they talk about reform in the judicial and legal system, the worse it works

Baku/02.04.22/Turan: Lawyer Abdullah Efendizade is suing the Bar Association, accusing it of deliberately obstructing his activities as a lawyer. In order to defend the accused in courts, Azerbaijani lawyers must be members of the Bar Association. But when passing the exams for admission to the Collegium, Efendizade faces upon various obstacles. Since April 2021,  eight of his claims have been considered in the Administrative and Supreme Courts of Azerbaijan. He demands an explanation of the reason for charging him about 200 manats for participating in test exams, demands that the results of exams with questionable tests be canceled and that he be compensated for moral damage in the amount of 200,000 manats. On March 15, at the oral exam, he was "failed", which became the reason for the last lawsuit of A. Efendizade. He intends to achieve justice in the European Court of Human Rights.

In a conversation with Turan, Abdullah Efendizade spoke critically about the state of the Azerbaijani judicial and legal system.

There is corruption in the judiciary, and a lot of it. Minister of Justice Fikret Mammadov speaks about this. In an interview, the minister noted that during the period of his activity, the Judicial-Legal Counsel brought 225 judges to disciplinary responsibility, of which 16 judicial powers were terminated, 33 were demoted or transferred to another job, 104 were reprimanded, etc. For the facts, that could create conditions for corruption, 43 judges were disciplined, 13 were dismissed, and the powers of nine were terminated ahead of schedule, and one of them was transferred to the investigation and convicted of corruption, together with a lawyer and a court employee who performed intermediary functions. Two employees of the court were arrested for receiving money from citizens under the pretext of assisting in a court case. In general, 167 judges were dismissed from the judicial system for negative reasons, including in the form of disciplinary punishment, based on the results of performance assessment, due to the termination of their term of office.

They dismiss, warn, but the shortcomings in Azerbaijani jurisprudence do not stop. Why is  not the Ministry of Justice solving its problems? “Several judges are removed every year, but in reality, most judges should be removed from the courts. Judges in Azerbaijan are not independent. Usually they make a decision only after consultation with the presidents of the courts. The only difference is that the chairmen delve into each case differently.

“Only a few judges do not take bribes. I can name Judge of the Court of Appeal Namik Jafarov, he conducts civil proceedings. Jafarov warns about the criminal liability of those who offer him a bribe,” Efendizade said.

According to the presidential decree of April 3, 2019 “On deepening reforms in the judicial and legal system”, about 350 conceptual changes were made to the Civil Procedure Code aimed at improving the quality and efficiency of the administration of justice, preventing red tape, ensuring a faster trial, and excluding evidence of possible abuse.

What has changed in judicial practice since this decree? Efendizade believes that some changes in the practice of courts play into the hands of corruption, allow holding hearings without the participation of the accused and the defense. So, in the Supreme Court you cannot participate in the process. If desired, the judges issue a verdict in absentia, considering the case in the documents. From October 1, the Supreme Court may or may not summon the parties to court. “In the Court of Appeal, judges may not go to the deliberation room to determine the verdict, discussing among themselves on the spot, in the presence of participants in the court session. This, of course, is contrary to the principle of impartiality.”

In 2019, President I. Aliyev called on the Bar Association to strengthen measures to prevent non-procedural relations between lawyers and judges and law enforcement officers.

According to e-huquq.az,  Chairman of the Bar Association Anar Baghirov rejects the criticism of some lawyers dismissed from the Bar Association. He denounces "some lawyers who have had litigation with the bar over the past 10 years." Baghirov says: “They do not want to see reforms and successes in the field of advocacy carried out in the country in recent years, which are welcomed by our society. They represent the Azerbaijani legal profession as a monster organization. A person who does not know the real situation will think that there is no independent advocacy in Azerbaijan. As the legitimately elected chairman of the Independent Bar Association, on behalf of our lawyers, I strongly condemn such attempts and consider them disrespectful to the lawyers and defenders of a glorious country.”

Abdullah Efendizade supports the criticism of lawyers against the Bar Association. “If lawyers praise the Judicial Council and the Ministry of Justice in the press, you should know that he is illiterate and takes bribes. Even the president said that about "some lawyers."

Until 2000, under the Minister of Justice, Sudaba Hasanova, lawyers had to have a license to work in courts. Minister F. Mammadov canceled the licenses, and after the amendment to the Law on Advocacy, only members of the Bar Association are entitled to engage in advocacy. Under the chairman of the Bar Association, Anar Bagirov (since 2017), literate, capable of withstanding pressure, participating in political trials, lawyers were removed from the Bar under various pretexts, and thus deprived of the right to engage in advocacy.

“What happens is that illiterate relatives of the accused can represent their interests, but a lawyer, if not a member of the Collegium, cannot. Well-known lawyers Namizad Safarov, Alaif Hasanov, Jamal Bagirzade and many others have been removed from the Bar Association. Lawyers are out of work. Previously, we did not want to defend the accused in the status of a lawyer hired by the state. Now lawyers are trying to get into the process, being appointed by the state, in order to earn 18 manats for three hours of court work,” Efendizade  complained.

Trial observers know that in the courtroom, prosecutors, that is, the side of the public prosecution, often behave like the main persons in the trial. It happens that judges openly confer with prosecutors. Why is that?

“If the public prosecutor declares the guilt of the defendant, the judge issues the same verdict. Sometimes judges give a term of imprisonment that is slightly less than what the prosecutor requires. In Azerbaijan, judges act as notaries confirming public charges. Judges are afraid that they will lose their positions,” he said.

The lawyer gave an example of a well-known trial in the case of a murdered girl in the village of Dongar Gushchu - for 18 months the accused has been in a pre-trial detention center, which in itself is illegal. Thanks to the perseverance of the lawyer, the judge cannot pass a verdict, as the defense side provides irrefutable evidence of the defendant's innocence. And the prosecutor does not drop the charge, because then the heads of the district human rights system will be hit. “You will see - when the process is over, this lawyer will be removed from the Collegium. Trials in our country are formally democratic, but in fact, they resemble the meetings of Stalin's non-legal "troikas".

This practice leads to the fact that among law graduates, the prosecutor's office is considered the most prestigious job. The employees of this system receive high salaries. “Judges and lawyers are sometimes fired for misconduct. The law also allows prosecutors to be punished, but I have not heard of a prosecutor being fired for poor performance. If a prosecutor, at the direction of management, requires a judge to put an innocent person in jail, then such a prosecutor will not be fired.”

People believe that the most of the upper courts keep unchanged the decisions of lower courts. Is it so? A. Efendizade explained: in criminal proceedings, this is 95%, since judges can be punished for illegal imprisonment. That is, the judges of the district administration do not imprison an innocent person because an acquitted citizen can create a problem for the investigator and the judge. And in civil proceedings, sentences can be canceled and returned by the Court of Appeal for re-investigation many times if one of the parties to the process is "strong".

The judges are afraid of bringing the process to the European Court of Human Rights. Sometimes the judges tell the dissatisfied defendants that the European Court will not accept their claim, but claims from Azerbaijan are accepted in Strasbourg, the lawyer added.

In Azerbaijan, last year, a law was passed allowing judges to fine lawyers for repeatedly submitting motions in courts. Judge of the Court of Appeal Namik Jafarov is outraged by this decision and writes that judges, when fining lawyers for filing unfounded petitions, must explain in the decision on what basis they are punishing lawyers. Jafarov writes: “It cannot be that lawyers file unreasonable petitions, and judges do not issue unreasonable verdicts.”

The press described the case of fining the lawyer Ganga Ibragimov because he was indignant at the late opening of the trial. For this, judge Elman Mammadov punished the lawyer with a fine of 500 manats.

The number of lawsuits is growing in Azerbaijan. The Minister of Justice says that one judge conducts up to 30 trials at the same time. According to Efendizade, the reason for the incredible increase in cases is that crime is growing in the country, especially in the field of drug trafficking. There is no social rehabilitation of released criminals. A lot of crimes are committed on the part of graduates of orphanages, put out on the street without work and profession, without decent housing. There are many unfair court decisions, which forces citizens to file complaints against district level courts.

To a request from Turan about Efendizade’s claims against the Bar Association, Sattar Mammadov, a lawyer-adviser of this structure, replied that since the Bar Association is in several lawsuits on Efendizade’s claim, they cannot comment on his statements so as not to put pressure on the court. After the completion of the processes, the Collegium will express its opinion.