THERE SHOULD NOT BE INDEPENDENT LAWYERS IN THE BAR ASSOCIATION OF AZERBAIJAN REPUBLIC
Analysis of violation of law during Ramil Suleymanov’s judicial proceedings
Baku Administrative & Economical Court # 2
Case №2-1(82)-1029/2019
30 August 2019
Judge: Rauf Dashdamirov
Claimant: Ramil Suleymanov
Respondent: The Bar Association of the Azerbaijan Republic (Farid Hasanov, a representative)
Ramil Suleymanov is a lawyer and has work experience in the field of law. Besides, he has opposition views, and is a member of the opposition party REAL (a Chairman of the party Ilqar Mammadov was arrested for political ground in 2013, released in 2018). Mr. R. Suleymanov ran in the 2015 parliamentary elections.
In November 2017, the Parliament of the Azerbaijan Republic adopted a law on the restriction of the institution of representation in civil and administrative courts. As a result of the Law adoption, about 10 000 practicing lawyers were deprived of the opportunity to represent citizens’ interests in the local courts. 15 prominent in the society attorneys have launched the Practising Lawyers Group. They held press conferences to discuss the adopted law, drafted and presented some alternative laws for consideration by the relevant structures. These lawyers planned holding a rally and officially applied to the Baku City Executive for permission, but received a negative feedback. The lawyers appealed this refusal to the local courts, after which they appealed to the European Court of Human Rights (ECHR). Ramil Suleymanov took an active role in the Group’s activity, and in addition, he wrote the posts criticizing the Bar Association of the Azerbaijan Republic on social networks.
After the adoption of the Law on Restricting the Institute of Representative in the Courts in 2017, Ramil Suleymanov and his colleagues from the Practising Lawyers Group submitted documents for admission to the Bar Association in order to become the Bar members and have an opportunity to proceed with their cases in the courts.
On 28 January 2018, the Bar Association of the Azerbaijan Republic announced the first round of the contest for admission to the Bar. The first round consisted of a number of test exams. Ramil Suleymanov, having scored 63 points (the admission were 60 points), was given the chance to participate in the second round, which consisted of an interview (an oral exam).
On 29 March 2018, he was summoned to the AR Bar Association for an interview. In the course of the interview R. Suleymanov answered 3 questions out of 5. He answered the 4th and 5th questions satisfactorily. He noted that the members of the Attestation Commission treated him rudely and biased. When R. Suleymanov answered the questions in a correct manner, the members of the Commission demanded him to cite by heart the article itself and even its number. Suleymanov pointed out “one of the members of the Commission, Khamza Qahramanova, repeated with an ironic smile, “Well, you don’t know, you don’t know”. On 17 April 2018, the Commission of the Bar Association of the Azerbaijan Republic concluded that Ramil Suleymanov had not passed the oral exam.
Having disagree with the Commission’s decision and considering it to be biased and unfounded, Ramil Suleymanov filed a lawsuit against the Bar Association. Suleymanov asked the court to annul the protocol of the oral interview on the professional disqualification of the Special Commission of the Bar Association with regard to its consideration of the case at large. The representative of the Bar Association did not accepted his claim in court and announced the decision accuracy.
On 30 August 2019 the Baku Administrative-Economic Court #2 adopted a resolution on rejection of Ramil Suleymanov’s claims. Along with the adoption of this decision, the court issued a ruling in the case, in which it indicated that the claim of Ramil Suleymanov had been found inadmissible and could not be considered on the merits.
Commentary by an expert lawyer:
The court ruling is illegal and unfounded. As mentioned above, the court did not accept Ramil Suleymanov’s claim for consideration and found it inadmissible. The essence of the lawsuit was to impose on the Bar Association the obligation to make a decision (or, as specified in the law, an administrative act) to annul the unsatisfactory results of the second round of examinations.
The Article 73 of the Administrative Procedure Code of the Azerbaijan Republic specifies “When refusal from adoption of administrative act or non-adoption of administrative act, due to respondent’s inaction, contradicts the law or violates claimant’s rights, court shall impose obligation for adoption of administrative act on administrative body.» The Article 33.1 of the Administrative Procedure Code states “Claimant may require the court to impose, the responsibility to accept the administrative act on respondent, through the claim on compulsion.” In other words, Suleymanov’s claims were in full compliance with the law.
An administrative act is an act of a public administration body which, unlike a normative act, establishes, modifies or terminates a specific legal entity partnership, rather than a general rule: https://dic.academic.ru/dic.nsf/lower/12816
Administrative body is a state or municipal organization formed by administrative legislation, as well as an individual subject, which have the authority to carry out administrative and public activities within their competence on behalf of the state or municipality and are endowed with administrative powers of a normative, regulatory and (or) protective nature – https://ru.wikipedia.org/wiki/Административный_орган
The Court’s declaration of Ramil Suleymanov’s claim inadmissible contradicts the above-mentioned articles.
From the book by Anna Koenigsman (judges of the Potsdam Court in Germany) “Administrative Proceedings of Azerbaijan” (Baku, 2013): “Upon submission of an application for adoption of an administrative act by an administrative body, the body may perform one of four tasks:
- The court satisfies the claim and accepts it. In this case, the proceedings are terminated, i.e. there is no need for proceedings or actions;
- The court partially or completely rejects the ruling. In this case, an administrative act of refusal is not accepted. The applicant may appeal against the decision or complaint, or file a complaint with the Supreme court;
- The Court is inactive and does not take any action. In this case, the plaintiff takes the opportunity to file a lawsuit;
- If there is a valid court order on the same subject, the court leaves the application without consideration. In this case, it is advisable to apply to the court for coercion against the judgment.”
In this case R. Suleymanov applied to the administrative body (the Bar Association) and expressed his intention to become a member of the Bar Association. The Bar turned down his application. Therefore, R. Suleymanov demanded the court to oblige the Bar to adopt an administrative act (i.e. a decision) to approve his application to the Bar.
The plaintiff has the right to demand the effective exercise of his or her powers to adopt an administrative act, and the refusal of an administrative body to adopt an administrative act is unlawful.
Let us review the provisions of the Law of the Azerbaijan Republic “On Advocates and Advocacy” and whether the Bar Association has violated this Law. The Article 10 of the Law states “The Bar Association shall be entitled to admit candidates to the Bar as its members”. Thus, R. Suleymanov, as a plaintiff, put forward legal requirements within the legal requirements. The Court had no legal grounds to reject his claim.
The refusal to accept the claim and consider the merits of the case violated the Article 8 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to this article “Everyone has the right to respect for private and family life, his/her home and his/her correspondence”. The right to respect for one’s private life includes the right to exercise one’s profession, in this case practising advocacy. Although the right to practice one’s profession is not specifically mentioned in the text of the Article 8, numerous precedents of the European Court of Human Rights (ECtHR) have repeatedly affirmed this.
The Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms protects the individual from arbitrary interference by state bodies in private and family life. Without claiming to be an exhaustive definition, the concept of private life embraces both physical and moral aspects of an individual’s life. Private life refers to the right of the individual to enter and develop relationships with others and with the outside world, including professional and business activities.
As it was mentioned above, R. Suleymanov was actively engaged in public activities and had a tough attitude towards the leadership of the Bar Association. As a response to this position, the Bar Association did not admit the lawyer to its collegium on the basis of a subjective oral examination, which was aimed at preventing R. Suleymanov from becoming a member of the Bar at all costs.
It should be noted that all lawyers who were actively involved in public activities, opposed the adoption of the law on limiting the institution of representation, as well as appealed to international structures and participated in international conferences (seminars, trainings) were not admitted to the Bar Association of the Azerbaijan Republic. Along with Ramil Suleymanov, Asima Nasirli (UN expert on migration issues), Samad Rahimli (wrote dozens of complaints to the European Court of Human Rights, represented political and social activists in local and international courts), Emin Abbasov (specialist on property rights, which is flagrantly violated in Azerbaijan), Tural Hajibeyli (the son of the famous lawyer Annagi Hajibeyli, who was not admitted to the Bar Association either and known for his harsh criticism of the Bar Association’s management), Ruslan Mustafayev (the son of the famous lawyer Asabali Mustafayev, who defended the rights of dozens of political prisoners; in 2018, the Bar suspended his lawyer’s activities for one year, A. Mustafayev is involved in a number of “sensitive cases), etc.
The refusal to admit Ramil Suleymanov, as well as the above-mentioned lawyers, to the Bar Association violates the Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to the Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
The Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides protection against all kinds of discrimination in the exercise of the rights and freedoms guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms to individuals or groups of individuals in similar situations.
“A difference of treatment is discriminatory if it has no reasonable and objective justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (Judgement of ECtHR Case of McMichael v. the United Kingdom, para. 97) – https://hudoc.echr.coe.int/eng#{“itemid”:[“001-57923”]}
In the case of Ramil Suleymanov, prejudice had led to violation of both national and international laws, as well as precedent-setting decisions of the European Court of Human Rights, which had been of an advisory nature.