The League believes that a strong, protected independent bar is vital not only to the protection of human rights, but for the conduct of business and government, in which transparent, fair, and accountable practices are to be encouraged. Many corporations active in Azerbaijan are unaware of the restrictions under which the bar is forced to operate, including their own in-house local lawyers, and do not realize the consequences for legal reform and the rule of law, and the protection of business contracts and legal entities.

The League seeks to help reverse the government’s alarming attempts to strip lawyers of their ability to practice law freely and effectively and thereby severely compromise or even eliminate the right of millions of citizens to due process. This background paper provides a summary of the three principle concerns: 1) access of independent attorneys to a criminal practice; 2) their access to a commercially-based law practice; and 3) the right to be free from politically motivated discrimination. The paper will also identify advocacy goals that all concerned observers should consider implementing immediately.

Until last year, Azerbaijan’s lawyers were able to practice law exclusively on the basis of membership in the Collegium of Lawyers (Advocates), the bar association that has served as the state’s monopoly on the profession since 1922, the earliest days of the Soviet Union. Until 1998, all of the country’s 500 lawyers practiced law on the basis of their membership in the Collegium. All of their clients and their salaries were supplied by the Collegium, to which they paid between 15% and 25% of their salary in return in membership dues. Under this monopoly, individuals were deprived of the opportunity to file suits or defend themselves independently, in clear violation of basic human rights and international standards for the legal profession, such as the United Nations Basic Principles for the Role of Lawyers. Moreover, attempts to practice as a non-member have been all but unthinkable: Article 158 of the Criminal Code of Azerbaijan punishes performing services without a license by up to five years of imprisonment.

On October 4, 1997, President Heidar Aliev began the process that broke the Collegium’s monopoly. On that date, he issued Presidential Decree No. 637 "On Confirming the List of Activities which Require Special Permission (Licenses)." Seven months later, on May 1, 1998, the Cabinet of Ministers issued a resolution that stated explicitly that licensing could be applied to the legal profession (Resolution No. 103, "On Confirming the Rules for Special Permission for Paid Legal Services (Licenses))." Legal experts rushed to take advantage of the new licensing system, and some ninety individuals obtained law licenses. Among them were some members of the Collegium, who sought licenses in order to gain the freedom to set their own fees and choose their own clients.

The immediate popularity of the licensing option prompted the government to quickly take steps to make it less attractive. In an apparent attempt to discourage legal experts, including Collegium members, from moving into private practice, thereby reducing the Collegium’s income and political clout, on December 1, 1998, the Minister of Justice, Sudaba Gasanova, issued a letter to the various branches of her ministry barring licensed lawyers from acting as defense attorneys in criminal cases. The order did not affect members of the Collegium, however. The provisions of the letter, which does not have the force of law, went into immediate effect and are being enforced. Licensed attorneys have already been physically barred from entering courtrooms where criminal cases are tried.

This restriction is more serious and alarming than it might appear at face value. First, the more lucrative part of any law practice in Azerbaijan is in criminal work; arbitrarily banning independent lawyers from engaging in such cases effectively forces licensed lawyers into the arms or back into the arms of the Collegium for their livelihood and thus back under state supervision. But more importantly, Azerbaijan has a well-documented history of silencing and punishing political dissent by falsifying criminal charges. The Criminal Code allows for more severe possible penalties than the Civil Code (namely, imprisonment instead of fines) and also often creates a greater stigma for the defendant. By closing off this avenue of legal work, independent lawyers are effectively stripped of their ability to defend victims of human rights abuse. And the right of victims of such abuse to have their grievances redressed in the courts is also severely limited if not eliminated outright. Without a hope of launching an independent defense, the risk alone of being brought up on fabricated criminal charges has been enough to deter dissidents from expressing their protest publicly.

Soon after the Ministry of Justice imposed the ban on criminal practices for licensed attorneys, seventy of the lawyers affected submitted a joint letter of complaint to the Cabinet of Ministers in an effort to secure the repeal of the Minister of Justice’s order. The Cabinet of Ministers referred the complaint to the Supreme Court of Azerbaijan, which rendered its decision in mid-April. One informant who has read the Supreme Court’s decision but was unable to obtain an official copy of it reports that the Court ruled in favor of the lawyers. However, the Court has failed to make its decision, which took the form of a memorandum, public, an apparent concession to government pressure.

The Collegium of Lawyers has asserted that its members may not engage in "entrepreneurial work," and even used that false assertion as one of the ostensible bases for expelling one of its members, Aslan Ismailov. To substantiate its position, the Collegium cites the 1980 (i.e. Soviet-era) "Regulations on the Legal Profession (Advokatura)," arguing that they do not explicitly provide for commercial legal practices. (Unlike standard western legal interpretation, it is common thinking in Azerbaijan and other former Soviet states that if a right is not explicitly enshrined in law, it does not exist.)

Regardless of interpretation, the Collegium’s position is factually incorrect and blatantly self-serving. First, Article 59 of the 1995 Constitution of Azerbaijan states categorically that "Everyone may engage in commercial activity." Article 50, point 2, of the "Law on Normative Acts" stipulates that "If the norms of a new law contradict the norms of an old law, the norms of the new law are applied." Thus, the blanket right to engage in commercial activity enshrined in the 1995 Constitution supercedes the preceding legislation. Second, Article 3, point 2, of the 1993 "Law on Entrepreneurial Activity" enumerates the limited number of occupations that may not legally engage in commercial activity. All of them are positions in the government involved in taxes and finance, and none applies to Aslan Ismailov, who holds no government job whatsoever.

A draft of a new "Law on the Legal Profession (Advokatura)" is supposedly under discussion by parliamentarians and is intended to replace the existing "Regulations on the Legal Profession" and its enabling law. It is not clear which version of the draft will be voted on, nor whether its provisions conform with international human rights instruments or standards for protection of the prerogatives of lawyers. It is therefore essential and a matter of some urgency for all interested observers to urge transparency in this deliberation process and insure that competent independent legal experts review the draft in question and make its findings public.

The Collegium of Lawyers, with the apparent collusion of the Ministry of Justice, has conducted targeted harassment of one lawyer in particular in retaliation for his defiant criticism of government abuse. Aslan Ismailov, who is a member of the Collegium and has been licensed to provide paid legal services since June 12, 1998, is an outspoken proponent of an independent legal profession. He has also served repeatedly as legal counsel in human rights cases that have met with government resistance, particularly cases involving freedom of the media. (Press freedom is an extremely sensitive and volatile issue in Azerbaijan where, according to "Reporters Sans Frontieres" annual report, 10 newspapers were subjected to total or partial censorship in 60 separate incidents and at least 24 journalists were arrested in Azerbaijan in 1998 and 40 beaten by police.)

From February 21 to March 5, 1999, Aslan Ismailov and two other Azerbaijani lawyers – one a member of the Collegium, the other a licensed attorney – traveled to the United States on an information and advocacy trip sponsored by the International League for Human Rights. During their stay, they met with judges, lawyers, journalists, scholars, Congressional staffers, and others. Their trip coincidentally overlapped with a working visit by Minister of Justice, who was meeting with many of the same policy-makers as the lawyers. Their simultaneous presentation of information that directly contradicted what the Minister was saying was undoubtedly a cause of irritation to the Minister. Within days of his return, on March 18, Mr. Ismailov was informed that he had been disbarred.

For several reasons, the disbarment is a blatantly discriminatory and punitive act. At the time of the expulsion, the Collegium asserted that it had based its decision in part on Mr. Ismailov’s failure to obtain the Collegium’s prior permission to travel abroad. However, no such requirement is known to exist since the Collegium has no Code of Ethics or other document stipulating rules of conduct and procedure. Moreover, all members of the Collegium with the exception of Aslan Ismailov appear to be able to travel freely without comment from the Collegium, let alone disbarment. Thanks to the direct intercession of the US government, the Collegium later retracted its complaint and indeed denied it ever played a part in the decision to disbar Mr. Ismailov.

The Collegium currently claims two formal justifications for the expulsion. Both are wholly specious. The first is that Mr. Ismailov violated rules of discipline by failing to inform the Collegium that he was working as an independently paid lawyer. Again, this "rule" is not written anywhere. Moreover, Mr. Ismailov did indeed inform the Collegium. In fact, in April 1998, almost a year prior to the decision to disbar him, the Collegium itself had not only seen but notorized the paperwork that he submitted as part of his application for a law license. In addition, Mr. Ismailov sent the Collegium a letter prior to his expulsion, defending in detail his right to practice for-profit law.

The second and more serious charge against Mr. Ismailov is that he "severely violated" a law, specifically that he worked in a "state or social" organization at the same time that he was a member of the Collegium (Article 10 of the 1980 "Regulations on the Advokatura"). In fact, Mr. Ismailov does not work in either a state or a social organization. The reference remains unclear (the League is seeking clarification from the head of the Collegium’s board on this point), but appears to be to Mr. Ismailov’s having founded a private law firm. It should be stressed that Mr. Ismailov founded it but had never worked there at the time he lost his membership in the Collegium. More to the point, Mr. Ismailov has never been charged with this or any other offense, casting serious doubt about the validity of the allegation.

The Constitutional Court can play an important role in settling this point. Azerbaijani law permits the Constitutional Court to rule on points of law on its own initiative, without waiting for a referral. The Court could thus affirm what the law already says implicitly: that the 1997 Presidential Decree "On Confirming the List of Activities which Require Special Permission (Licenses)" applies to all legal personalities, including members of the Collegium. Such an unequivocal ruling would make it easier for Mr. Ismailov to successfully sue to be reinstated into the Collegium and for other lawyers to defend themselves against similar discriminatory charges.

• Ensure that the Minister of Justice’s letter of December 1, 1998, barring private practice lawyers from criminal courts be repealed and, in the meantime, insure that it is not implemented.
• Urge that more qualified lawyers be allowed to practice law. Currently, the extremely small number of lawyers who are able to practice general law nationwide (500 Collegium members) is insufficient to meet the needs of a population of some 9 million.
• Urge transparency in parliamentary debate over the draft "Law on the Legal Profession" and insure that competent legal reviews are conducted and their results made publicly as a matter of priority. Request a copy of the current draft of the law [Zakon ob Advokature] and comment upon it.
• Urge the Constitutional Court to exercise its prerogative to rule definitively on whether the right to engage in "entrepreneurial activity" applies with any exceptions, notably the practice of law.
• Monitor closely that Minister of Justice Sudaba Gasanova honors her pledge not to revoke Aslan Ismailov’s license to practice law privately.
• Ensure that Aslan Ismailov is reinstated in the Collegium of Lawyers and his access to crimial court provided without obstacle.