On 14 September 2018, European Union and European Council, within a joint program named “Application of precedents of the European Court of Human Rights and European Convention on Human Rights and Freedoms,” hold a conference dedicated to property rights. The Supreme Court of Azerbaijan and Azerbaijan Bar Association took part in this conference.
Even though the conference is dedicated to a different topic, Anar Baghirov, the head of the Bar Association criticized the European Court of Human Rights (ECtHR) approach to the profession of lawyer. In particular, he stated that ECtHR does not give serious attention to the lawyer profession. According to him, lawyers who can represent the applicants before both local courts and the European Court of Human Rights should be licensed members of their bar association of their relevant state. To justify his arguments, he referred to the draft proposal (No. 2121) about a European Convention on the Profession of Lawyer presented by the Parliament Assemble of European Council. According to his interpretation of the text of the Proposal, the certificated lawyers, who are members of the bar association, plays a very crucial role between public and courts. The new trend in Europe is to develop the profession of a lawyer which leads to the concentration of this profession within the bar association.
After this brief introduction, Anar Baghirov stated that only the members of the Bar Association might represent the applicants before a court in Azerbaijan, thanks to the change in legislation adopted this year. According to him, the amendment aimed to reinforce and develop the prestige of the profession of lawyer and make it a powerful institution. However, in contrast to this new trend, the European Court, in its everyday decisions uses terminology which creates confusion. According to him, the language the Court uses in its judgments is formed by the documents issued by various bodies of the European Council. “It is no mystery to anyone that whenever these documents refer to a word of a lawyer, it means the professional lawyer who is a member of the bar association,” says Anar Baghirov. Thus, he argues that the current practice of the European Court is not right.
It is not a coincidence that the Head of Azerbaijan Bar Association raised concern about the practice of ECtHR, says independent lawyers. The recent reports of the local and international organizations show that all type of human rights violations, in particular, the violation of the right to property, in Azerbaijan have increased drastically in recent years. This issue, in turn, expanded the applications sent to the European Court.
The vast majority of the presenters of the applicants before the European Court have been independent lawyers. To stop or at least decrease the number of applications sent to the European Court the government has started to disbar the independent lawyers from the bar association. Since it was not a problem for the disbarred lawyers to represent the applicants before the European Court and local courts (till the Supreme Court) in civil cases, the government altered its policy and entirely banned the disbarred and unlicensed lawyers to represent applicants before the local courts. The government did not stop in here and furthered its repressive system against the independent non-licensed lawyers.
Ramin Suleymanov, an independent lawyer, says that “when the Azerbaijan Bar Association declared its aim to hold an examination for bar membership, these independent lawyers took part in this examination. Even though most of them could pass the first stage of the exam (the written test), they could not pass the second stage (the oral examination).” According to him, the team of examiners have been biased against him and asked very irrelevant, mostly politically motivated, questions from him. Samad Rahimli, another lawyer who could not pass the second stage of the examination, thinks that “lawyers who had worked in independent NGOs, who criticized the human rights policy of the Azerbaijani government and who filed a complaint to the European Court could not pass the second, oral stage of this examination."
There remain two issues which attract attention in this event: One of them is the name of the event and the topic that should have to be discussed. In here, participants of the meeting, in particular, Anar Bagirov, did not address the problem. Although the title of the event was property rights and application of precedents of the European Court of Human Rights and European Convention on Human Rights and Freedoms, the participants focused on other matters, thus, totally changing the subject. The main focus could have been the growing violations of property rights in Azerbaijan, the implementation status of the judgments of the European Court by domestic authorities on this matter.
The event could also concentrate on the grounds why the same property violations continue in Azerbaijan and what the Supreme Court is doing or had done to stop this repetition. The harmony or gaps between the domestic law and the case law of the European Court and the Convention could also be discussed. Another critical issue relates to those who organized such an event. Whenever the European Union and the Council of Europe arrange such circumstances, they should make sure the participation of independent lawyers and the disbarred lawyers who had prepared dozens of cases about the property rights violations in Azerbaijan. Their presence of those would facilitate to hear alternative voices on the subject and would not allow the issue to change its direction unilaterally.
Finally, the violation of the right to property in Azerbaijan is especially widespread. There are dozens of cases which are in the communication stage before the European Court. According to the economists, protection of the property rights in any county is the first indicator of right investment conditions, and the government of Azerbaijan does not want to be seen as a violator of this right before the investors. This negative information makes Azerbaijan an unattractive country for investments. As the European Court finds more property rights violations in Azerbaijan, a negative image of the country is formed. For this reason, the last policy pursued by the Azerbaijani government in the legal profession is partly to be considered in this context.