On the philosophy of the Code of Civil Procedure

Dear deputies!

I ask you not to hurry with the adoption of the conglomerate of amendments to the legislation received by the Milli Majlis in classified, for, in essence, they are none other than a reactionary destruction of the Decree of the President of the Republic of Azerbaijan "On Deepening Reforms in the Judicial-Legal System" of 03.04.2019, in particular, and the Concept of National Security of Azerbaijan, in general.

Unfortunately, accelerated methods of pushing through anti-national decisions do not allow us to cover all the features of vaccine lawmaking in detail, in this connection, I ask you to pay attention to the following:

1) The participants and accomplices of the proposals are claiming, in the best traditions of the Tariff Council and Emperor Vespasian, that all the proposed innovations are beneficial for the Azerbaijani people and aimed at protecting the rights and interests of citizens, improving their well-being.

The toasts of information zombie say about "conceptual innovations that essentially change the philosophy of the СPC with due regard for the best practices of courts of foreign countries and international courts and the recommendations of the Doing Business project of the World Bank, Ministry of Economy, Bar Association, American Chamber of Commerce," etc. It is noted that "courts are not interested in raising duties because they have just 2% of them, although they should have given all the amounts to them; ... the law on stamp duties exempts low-income people from paying fees...", etc.

However, demagogy of this sort based on fictions and crocodile tears, is no longer funny.

First, there are no "best practices and recommendations" in nature that cause the adoption of reactionary changes and additions to the Azerbaijani legislation. To put it mildly, that'is not true. For information: the American Chamber of Commerce is a business association that supports and promotes interests of 80% of all foreign investments in Azerbaijan. In the meanwhile, the project of the World Bank whose name is given in English, to drive the point home, contains just a methodology for doing business. It is known to specialists under the brand "How to do business".

True, if someone considers legal proceedings and justice through the prism of business, then the recommendations will be just right.

The statement about "conceptual innovations that essentially change the philosophy of the Civil Procedure Code" (CPC) is a set of sonorous algorisms, abracadabra, suitable for unfair marketing only. 

The philosophy of Azerbaijani legislation as a system of theoretical views and a form of mental activity and cognition is based on the Constitution of the Republic of Azerbaijan. Under Article 158 no direct and indirect encroachments on the authority of the people and the foundations of the state are permitted.

I agree that the judges of Azerbaijan are not in need of any 2% of total amount of court fees; however, it'd be wrong to provide them with the remaining 98%. They can get stuck and completely switch to self-financing.

Besides, a proposal to introduce a new Article 4.1-5 to the Law "On Stamp Duty", following which 50% of all stamp duties up to 5,000 manats will be deposited in courts to enhance social security and improve the financial situation of the judicial class, is contrary to the lordly gesture in part 2%. Businessmen can count.

Second, a simple comparison of sizes of the current and proposed stamp duties shows that the concern for the people is identical to well-known markets where the weekly price growth is also explained as being due to the protection of the rights and interests of consumers.

Thus, according to Article 8 of the Law "On Stamp Duty" which is still in effect, if the claim cost is more than 500 manats (limitless), the state duty is 30 manats.

According to the "conceptual" project of 25.06.2021, the stamp duty of 30 manats will be charged for the claim cost of worth 1000 manats while the claim cost from 1000 manats to 10,000 manats – 30 manats + 1% of the amount exceeding 1000 manats; from 10000 manats to 100,000 manats – 120 manats + 0.3% of the amount exceeding 10,000 manats; from 100,000 to 1,000,000 manats – 390 manats + 0.1% of the amount exceeding 100,000 manats; from a claim worth more than 1,000,000 manats – 1290 manats + 0.05% of the amount exceeding 1,000,000 manats; however, not exceeding 50,000 manats.

Consecutively, according to the draft dated 25.06.2021, the amount of state fees for appeals and cassation complaints will increase to make up 50% of the above amounts. Also, the amount of stamp duties for other types of claims and applications has been raised several times.

For comparison, according to the current law, the amount of stamp duties for appeals and cassation complaints is 10-15 manats.

What a concern for the people! The essence of what is planned is that after the adoption of" conceptual innovations", the residents of Azerbaijan with average income, not to mention low-income ones, will be deprived of the opportunity to defend material violations of their rights in court, since they will not be able to pay the stamp duty.

Hundreds of illegal demolitions of homes, seizure of land plots and other facts of arbitrariness will remain without judicial protection, and access to justice for these people will be closed.

The courts will become a place of showdowns only for oligarchs and their henchmen, for whom 50,000 manats is not a problem.

As for the statement that "...the Law on Stamp Duties exempts low-income people from paying fees, "it is, to put it mildly, incorrect.

There are no such provisions in the draft of 25.06.2021; on the contrary, in comparison with the current Law, the number of subjects with insignificant privileges has been reduced.

2) It seems that the general goal of depriving the majority of Azerbaijani citizens of access to justice is also pursued by the new version of Article 402 of the CCP offered by the "reformers" following which cases on claims of less than 5,000 manats in civil cases and less than 10,000 manats in commercial disputes will not be considered in cassation. And no international agreements on the right to cassation and the inadmissibility of discrimination on property and economic grounds will alter the situation.

3) One of the basic principles of judicial proceedings as set forth in the international agreements of the Republic of Azerbaijan is publicity.

Meanwhile, according to the draft of 25.06.2021, it is proposed to supplement Article 10 of the Civil Procedure Code of the Republic of Azerbaijan "Publicity of judicial proceedings" with provisions that in cases as set forth in Articles 159 (consideration of an application for securing a claim), 269 (consideration of a complaint), 284-5 (procedure for considering an application), 414.1 (terms and procedure for considering cassation complaints), 422 (review of cassation decisions), 431-3 (procedure for reviewing judicial acts on violations of rights and freedoms under new circumstances) , etc. (total 11 Articles) cases will be considered in writing, i.e. without holding court sessions and hearing the explanations of the parties.

In the recent past, the notorious "troika" of the NKVD dealt with cases in this way, but even then they were embarrassed to qualify the situation as glasnost (publicity).

It has to be kept in mind that court sessions and hearings of explanations of the parties are the basis of legal proceedings and justice. Otherwise, there are neither legal proceedings, nor justice. There are just "troika" with a well-known history of the end of arbitrariness.

4) As viewed by lobbyists and other persons concerned, among other "conceptual innovations that significantly affect the philosophy of the Civil Procedure Code", is a proposal to supplement Article 174 of the CPC with the following paragraph: "The court has the right to fine a party, its representative and lawyer for up to 500 manats if they unreasonably file petitions and complaints or hinder the rapid consideration and resolution of the case. The amount of the fine is determined by the court with due regard for specific circumstances within reasonable limits."

It is the case even despite the fact that the CPC appeals to Article 120 with a similar meaning which provides for fines within reasonable limits in favor of the opposing party or the state for the loss of working time.

Thus, Article 174.5 of the CPC focuses on the responsibility of a lawyer only which is a reactionary attempt to turn legal proceedings in Azerbaijan into a farce with a pre-known outcome.

As you know, legal proceedings consist of filing lawsuits, petitions and complaints, explanations (testimony) parties, etc.

As a rule, there are not and cannot be legal proceedings without petitions and complaints. The law provides for filing appeals and cassation complaints, and the latter with the mandatory participation of a lawyer.

According to Article 68 of the CPC, a lawyer on the basis of instructions of persons imvolved in the case on the basis of a power of attorney is obliged to file complaints against judicial acts and petitions, to exercise other rights provided for by the law.

As a rule, lawyers from both sides participate in the process. As a rule, in the course of the process, one of the parties turns out to be right (winner), and the other wrong (loser). A lawyer in a civil case is always a representative of someone. A lawyer is a position, a profession.

The authors of the proposal on fining lawyers must have forgotten, unaware or deliberately ignore the "Basic Principles of Lawyers' Role" adopted by the 8th UN Congress on 28.08-07.09.1990, according to which:

«...The Government provides effective procedures and flexible mechanisms for effective and equal access to lawyers for all persons located on their territory and subject to their jurisdiction, without any distinction, such as discrimination on the basis of race, skin color, ethnic origin, gender, language, religion, political or other beliefs, national or social origin, property, birth, economic or other status.

.. The Government ensures that sufficient financial and other resources are provided to render legal services to the poor and, if necessary, to other disadvantaged persons. Professional associations of lawyers cooperate in the organization and provision of services, funds and other resources.

.. Governments and professional associations of lawyers promote programs to inform people about their rights and obligations under the law and about the important role of lawyers in protecting their fundamental freedoms. Special attention should be paid to providing assistance to the poor and other disadvantaged persons so that they can assert their rights and, when necessary, seek legal assistance.

... In relation to their clients, lawyers perform the following functions:

a) advising clients on their legal rights and obligations and the work of the legal system to the extent that it concerns the legal rights and obligations of clients;

b) providing assistance to clients by any available means and taking legislative measures to protect them or their interests;

c) providing, if necessary, assistance to clients in courts, tribunals or administrative bodies.

... Governments ensure that lawyers: (a) were able to perform all their professional duties in an environment free from threats, obstacles, intimidation or unjustified interference; (b) were able to travel and freely consult with their clients inside and outside the country; and (c) were not subjected to prosecution and judicial, administrative, economic or other sanctions for any actions committed in accordance with recognized professional duties, norms and ethics, as well as threats of such prosecution and sanctions.

... Lawyers shall not be identified with their clients or interests of their clients due to performing their functions.

... Lawyers enjoy civil and penal immunity for appropriate statements made in good faith in written submissions to the court or oral statement in court or in the course of carrying out their professional duties in court, tribunal or other legal or administrative authority."

The definition of the proposed Article 174.5 of the CPC consists of provisions on unjustified filing of petitions and complaints and hindering the rapid consideration and resolution of the case.

The statement about groundlessness is a subjective category. Petitions and complaints are always justified, but another question is that someone considers the arguments given untenable. Situations when petitions and complaints do not contain any justifications other than claims (objections), are clearly far-fetched, have no place in practice.

Thus, it can be assumed that the authors of the proposal under the groundlessness of the petition and the complaint mean the insolvency (which is not the same thing); however, for such a conclusion, the petition or complaint must first be considered, analyzed, compared and rejected in accordance with the procedure established by the law. Otherwise, the question will not move from the "Fool himself" stage, and the unfounded decision itself will be unfounded and illegitimate.

Of course, it is easier and faster to fine someone (first of all, a lawyer) and silence them, but this is not competition and justice, but the beginning of the Inquisition.

By proposing to fine for unsubstantiated petitions and complaints, the authors of the proposal forget that the law retains the right to appeal and cassation complaints. Or are they also going to be fined for their submission?

According to the logic of lobbyists, the failure of petitions and complaints will be determined by the court according to an arbitrary method. The petition or complaint does not correspond to the goals, aspirations or installation; it means unfounded (untenable)! Easy and simple, economical and fast. Electronic process. By the way, we do not have an electronic court, as it is unreasonably called, but only a partial computerization of office work.

It is obvious that the statement about the obstacle to the rapid consideration and resolution of the case comes from the issue of filing unsubstantiated petitions and complaints. There will be no petitions and complaints, decisions can be stamped electronically. But then there will be neither legal proceedings nor justice.

Sincerely,

Doctor of Law,

Professor Javanshir Suleymanov

"07" July 2021