By Paul LeGendre

Introduction

Azerbaijan has been actively seeking membership in the Council of Europe, a process which has accelerated in the past year as the Council leadership has articulated its goal to bring in former Soviet republics within the next five years. With the Council's requirements that prospective members bring their legislation into conformity with European standards, Azerbaijan's legal system has increasingly come under scrutiny, as had the Azerbaijani legal profession. The much-anticipated Law On Advocates and Advocate Activity (i.e. attorneys and the practice of law), concerning was passed on December 28, 1999, and entered into legal force on January 27, 2000. The law sets out the framework under which the legal profession must function. The dominant feature of the law is the entity called the Collegium of Advocates, or official bar association, a remnant of the Soviet legal system that continues to maintain control over the legal profession, leaving little if any room for independent lawyers and legal associations.

In Part 1, this report will provide some background by a) looking at how the Collegium has historically controlled the legal profession, b) examining how new legislation beginning in 1997 began to challenge the hegemony of the Collegium by providing for new rights to licensed lawyers, and c) outlining the subsequent efforts taken by the Ministry of Justice and the Collegium to shore up its control over the legal profession. In Part 2, this report will analyze the main provisions of the Law "On Advocates and Advocate Activities" by looking at how the Law a) interprets the rights of advocates versus those of jurists, b) maintains the dominance of the Collegium, and c) introduces new potential obstacles for law firms. Part 3 will illustrate how the legislation has worked in practice through the case of Aslan Ismailov, a lawyer who has advocated for an independent legal profession, as well as the Association of Lawyers of Azerbaijan and the Azerbaijan Association of Advocates, two independent legal associations.

I. State Efforts to Regulate the Legal Profession

A. Collegium Control of the Defense Bar

Like all former Soviet republics, Azerbaijan has traditionally had three types of professionals who provide legal services: 1) attorneys or barristers, known as "advocates" (called advokaty in Russian), who can represent clients in criminal court and who are members of the Collegium of Advocates (roughly equivalent to a bar association); 2) jurists (yuristy) or solicitors, persons with legal training who can represent clients in civil proceedings only and can provide the legal advice needed in a highly bureaucratic society; and 3) notaries (notariusy), who, unlike their American counterparts, not only authenticate signatures but prepare contracts in family and real estate law. The legislation discussed in this report concerns only the first two types of legal professionals.

Also relevant to the protection of human rights is a fourth type of legal practitioner, who does not necessarily have any legal training, known as the public defender, or obshchestvenny zashchitnik in Russian, who makes statements on behalf of a client (roughly equivalent to an amicus brief). A public defender can attend a court proceeding on behalf of an NGO. He or she cannot represent defendants during pre-trial investigation or visit them in detention.

Until 1998, advocates practiced law exclusively through the Collegium of Advocates, the Soviet-style bar association that has secured the state's monopoly over the profession since 1922. Until December 1999, the role of the Collegium was outlined in a 1980 Provision on the Advokatura (the legal profession) of the Azerbaijan SSR. Prosecutors, police investigators, judges, and law clerks may also be members of the Collegium, and this mixing of professions has been a factor in the organization's conservatism on legal reform and silence about abuses within the criminal justice system. The Collegium's monopoly on criminal defense practice serves the state by creating a mechanism to control lawyers, who often play an important role in political dissent and human rights defense themselves, since they often resist the state's efforts to silence and jail dissidents through criminal charges. The monopoly is important to the Collegium's leadership, since a substantial financial gain is ensured by collecting a large percentage of all fees paid to advocates. Not only would independent practitioners not pay this percentage to the Collegium, many of the best lawyers would be tempted to work independently, and they would draw clients away from the Collegium.

Officially, the Collegium is independent of the Ministry of Justice and any other state control. In reality, it, like most semi-public institutions in Azerbaijan, is governed by the state's political influence. Although the Ministry of Justice does not micromanage the day-to-day operations, the Collegium leadership knows what is politically acceptable to the Presidential Administration and the Ministry of Justice. The leadership toes the line and ensures that the lawyers it controls stay in line as well. When it does not, a phone call from above can quickly energize the Collegium leadership into action.

In addition to the pervasive fear in Azerbaijani society of causing dangerous political offense, advocates working within the Collegium are influenced by the organization's direct control over their work and pay. The Collegium controls the flow of case work from the criminal justice system and requires lawyers to turn their fees over to the Collegium's accounting offices. This is among the features of a Soviet-style Collegium that make it different than a Western-style professional society; it functions as a kind of law firm itself. An advocate's clients and salary are supplied by the Collegium, which in turn takes between 15% and 25% of the advocate's salary. Local lawyers have stated that they turn over as much as 58 percent of their fees to the Collegium: about 38 percent goes to taxes, and 20 percent for the Collegium's "upkeep."

Lawyers in Azerbaijan report that the Collegium presidium rarely interferes directly in an individual advocate's work, but that typically a lawyer's Collegium supervisor monitors the lawyers under him or her and exerts pressure through slightly more subtle means such as suddenly not finding cases to assign a lawyer who shows too much independence. Since an advocate's work is officially channeled through the Collegium (even if clients approach a specific advocate, as they often do), an advocate can be precluded from earning a living inside the Collegium and thus force to seek one outside. Under recent regulations, advocates may sign a contract with a private client to handle civil cases, but the Collegium becomes suspicious if an attorney is not available for its case assignments, some of which are pro bono for indigent clients. Thus, the best, most independent attorneys are forced to juggle an unwieldy load of cases they have taken to keep the Collegium off their backs; pro bono or low-paid cases of political activists in trouble with whom they sympathize; and other paying clients with civil or criminal cases who may wind up getting them in trouble with the law through their fees.

Advocates have very little power, either in the broad political scheme or within the justice system itself, and they are vulnerable to the influence of the prosecutor's office and the police in addition to the higher political authorities. Faced with the enormous power of the state's prosecution machinery and pervasive judicial corruption, often the best a lawyer can do is to resort to technicalities or health grounds to seek a sentence reduction or a client's release. For this reason, the general public frequently describes advocates as "musicians at a funeral" you need them for the ceremony, but they can no longer really do anything for you.

Currently, the Collegium of Azerbaijan has approximately 500 members, of which an estimated 20 are believed to be attorneys independent enough to choose to defend politically-sensitive clients. Given the country's eight million person population and the hundreds of citizens that have been caught in the net of state repression (journalists, human rights activists, political party leaders, rebellious policemen), there is a severe shortage of attorneys who can provide victims of human rights abuse, let alone the population at large, a serious legal defense.

In addition, the Collegium's monopoly on defending criminal cases deprives defendants 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 UN 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. It is not know if this article has ever been invoked, but lawyers are intimidated by believing it could apply to them.

B. New Legislation Challenging the Collegium's Monopoly

On October 4, 1997, President Haidar Aliev began a process that threatened to break the Collegium's monopoly. On that date, he issued Presidential Decree No. 637 "On Confirming the List of Activities which Require Special Permission (Licenses)." This decree listed all the types of fee-paid services for which licenses would be required, and among the activities was provision of paid legal services. Seven months later, on May 1, 1998, the Cabinet of Ministers issued regulations implementing the presidential decree in the form of Resolution No. 103, "On Confirming the Rules for Special Permission for Paid Legal Services (Licenses)."

Thus, an independent, private, fee-paid bar was legalized in Azerbaijan through government reform measures in 1997 and 1998.

The process of applying for and receiving a license was relatively routine, and most local lawyers saw the new requirements as simply one of a series of measures to formalize state licensing power in various areas and to provide the state revenue through fees collected. To receive a license, an individual must present a passport, a legal education diploma, proof of registration with the tax inspector, a work log (known in Russian as trudovaya knizhka, literally work booklet, an official document in which all citizens are required to have their current and past employment officially recorded) demonstrating two years of legal internship work (stazhirovka), and 100 million manat (approximately $350). Three individuals who hold licenses can apply for a firm license for the same price. As of June 1999, the Ministry of Justice records indicated that 122 individuals and 13 firms had received licenses, and only two applications had been rejected because the applicants did not have a higher legal education.

When the October 1997 decree was first issued, there was uncertainty in the legal community about who was required to obtain a license and about what rights a license conferred. The decree requires licenses for those who engage in "paid legal services," or platnye yuridicheskiye uslugi. That Russian phrase (Russian is still used in Azerbaijan) could mean legal services in the most general sense, including those rendered by advocates, or it could mean only those services rendered by jurists, the specific type of lawyer limited to civil practice. The October decree did not specifically include advocates, but the May 1998 Resolution did include two paragraphs in Article 1 (General provisions) concerning the rights of the licensed lawyers. The paragraphs read as follows:

1.2.1 - Provide written information and lists of legislation, advise and explanations on legal questions; - Compile declarations, appeals and other documents of a legal nature; - Be a representative in a court in civil cases and in violations of administrative-legal norms; - Offer legal and other assistance to individuals and legal entities.

1.2.2
Participate as a defense attorney (zashchitnik), representative of the defendant during the course of the investigation.

These articles seem to indicate that the license would give lawyers the right to engage in certain activities (especially those listed in paragraph

1.2.2)
formerly reserved to the advocate. Furthermore, some Azeri lawyers and even government officials have stated that the most common assumption when the decree was passed was that all lawyers were required to obtain a license.

The decree raised two problems for the Ministry of Justice and the Collegium. First, Collegium members did not want to suffer the expense of obtaining a license. The amount of $350 is many months of a typical lawyer's salary. Second, the decree could be interpreted as superceding the 1980 Provisions on the Advokatura, which the Collegium claims is still the governing law related to advocates and is the basis of their virtual monopoly of criminal defense work. If any lawyer could simply obtain a license and then engage in private criminal practice outside the Collegium, it would lose fees and clients and likely disintegrate.

C. Backlash from the Ministry of Justice

Two months after the regulations were issued, Minister of Justice Sudaba Hasanova took action in an attempt to contain the possible repercussions of the decree. Her press service published an announcement asserting that the presidential decree and licensing requirements did not apply to advocates in the Collegium. Then, in December 1998, the Minister issued a letter stating that "in court cases, licensed lawyers cannot participate in the criminal defense of suspected and accused persons," essentially barring lawyers who hold a license but are not Collegium members from representing clients in criminal cases.

The immediate impact of the limitations imposed by the Minister of Justice was somewhat limited because only a handful of licensed lawyers immediately took the chance of setting up a private criminal practice. Some of these lawyers were even able to convince judges to admit them to court despite the Minister's instruction, based on either personal reputation in the court or arguments about the illegality of the Minister's limitation on the presidentially-decreed licensing procedure. Nevertheless, the restriction had significant immediate and long-term consequences.

First, the more lucrative part of any local law practice in Azerbaijan is criminal work; arbitrarily banning independent lawyers from engaging in such cases will effectively limit the number of independent licensed lawyers. Unable to gain numbers and affluence, the ability of independent lawyers to form a strong force for reform and protection of legal rights will be greatly curtailed. Even more important, independent lawyers are stripped of their ability to defend victims of human rights abuse, usually cases performed pro bono, or for a low fee, and those victims have less chance of securing a vigorous, effective legal defense. Azerbaijan has a well-documented history of silencing and punishing political dissent by falsifying criminal charges. The Criminal Code allows for more severe penalties than the Civil Code (namely, imprisonment instead of fines) and also creates a greater stigma for the defendant. Preventing independent lawyers from defending dissidents charged with criminal offenses will undermine the broader struggle for human rights and criminal justice.

From a legal point of view, the Minister of Justice's pronouncements are not binding; she does not have the authority to amend a presidential decree. According to Azeri law, presidential decrees and resolutions issued by the Cabinet of Ministers are higher legal authority than a ministerial instruction or regulation. Collegium officials counter this by arguing that the ministerial declarations simply clarify the true intent of the decree and regulations. This argument is dismissed, however, by local lawyers and members of the parliamentary staff and presidential administration, who have told the League that the Minister's actions clearly placed new, unintended limitations on the reach of the decree.

By December 1998, when the Minister banned licensed lawyers from criminal courts, more than eighty lawyers had applied for and received 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. Soon after the Minister's action, 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 for a private advisory opinion, which was rendered in mid-April. One lawyer who has read the Supreme Court's decision, but was unable to obtain an official copy of it, reports that the Court supported the petitioning lawyers. However, neither the Court nor the Cabinet of Ministers has made the decision public as an official ruling. Instead, the case was referred to a lower court for consideration, the Nasuminsky Regional Court. While a decision of the court would still be interesting, it wouldn't be of much practical use at his point since the decree, resolution and letter in question have now been superceded by the new Law "On Advocates and Advocate Activity."

II. The 2000 Law "On Advocates and Advocate Activity"

As mentioned above, there had been until recently some confusion as to the rights and limitations of a licensed lawyer. Some felt that the 1997 presidential decree and the 1998 Council of Ministers' resolution gave licensed lawyers the right to engage in some of the same activities as their advocate counterparts, including taking on criminal cases. The December 1998 letter from the Minister of Justice sought to clarify this point of confusion by stating that only members of the Collegium had the right to take on criminal cases as defense lawyers. In many cases, it was up to individual judges to determine which lawyers would be allowed into the courtroom. While some judges did in fact allow the licensed lawyers into the courtroom for criminal cases, there was always the factor of uncertainty, which made lawyers dependent on the arbitrary interpretations of the judges. This was obviously not an adequate solution.

A. Resolving the Controversy: Advocates vs. Jurists

The Law "On Advocates and Advocate Activity," which entered into force on January 27, 2000 and which constitutes a significant step backwards, end this controversy, although not in favor of the licensed lawyer. Rather, the formulation of the new Law reiterates the Minister of Justice's letter. The section of the law dealing with this issue reads as follows (the italics and bold lettering is added for emphasis):

Article 4. The basis of advocate activity

I. An individual who has been accepted as a member of the Collegium on the basis of the stipulated procedure, and who has taken the oath of the advocate, can engage in advocate activities.
II. Only advocates can be defense lawyers (zashchitniki) in court trials of criminal cases, pre-trail investigations and inquiries in accordance with the procedural legislation of the Republic of Azerbaijan.
III. Advocates can also engage in the following types of activities:
- represent individuals and legal entities in governmental and non-governmental bodies and organizations, including those in foreign countries and international organizations;
- give oral and written consultations, clarifications and interpretations on legal questions;
- compile statements, appeals and documents of a legal nature;
- render necessary legal assistance to individuals and to legal entities and carry out the legal defense of their activities;
- offer legal assistance of other sorts.

A footnote in the Law makes it clear that jurists only have the right to engage in those activities listed in Part III, not those indicated in Part I and II. Thus, they are unable to take on criminal cases as defense lawyers. There is no clear reason why licensed lawyers should be limited from engaging in the activity listed in Part II of this article. In fact, the requirements for obtaining a license as listed in the Council of Ministers' resolution (candidates must have a higher legal education, two years legal experience, and must pass an exam offered by a body to be determined by the Ministry of Justice) are very similar to those required for Collegium members. These requirements are set out in Article 8 of the Law and read as follows:

Article 8: Requirements for candidates to become advocates

I. Individuals with a higher legal education, having completed a stage of work as a jurist for no less than three years, or having worked in a scientific institution or a pedogogical teaching institution in a department of law, and have passed the exam of the Qualification Committee, can become advocates.

It therefore doesn't seem necessary to maintain the existence of a separate institution, namely the Collegium of Advocates, to regulate a class of lawyers that, in essence, differ from licensed lawyers. One can only conclude that there must be political motivations behind the decision to retain complete control over advocates, who differ from licensed lawyers only in that they can take on criminal cases.

B. The Continued Dominance of the Collegium Perhaps the most disappointing aspect of the Law is that it continues to designate the Collegium of Advocates as the main regulatory body of the legal profession. The article on the Collegium reads as follows: Article 9: The Collegium of Advocates I. In the Republic of Azerbaijan, a non-governmental, independent, self-regulating, collegium of advocates to unify all advocates shall function. Individuals who are not members of the Collegium of Advocates cannot engage in advocates' activities.
II. The Collegium of Advocates is a legal entity.
III. The organization and the activities of the Collegium of Advocates is determined by the current law and by the charter which shall be accepted by the general assembly (conference) of the Collegium of Advocates in accordance with the current law.
IV. The highest body of the Collegium of Advocates is the general assembly (conference) and the highest executive body is the Presidium.
V. The Collegium of Advocates carries out the following activities:
- resolves matters regarding the acceptance of Collegium members and their exclusion from the Collegium in accordance with the requirements of the current law;
- carries out disciplinary supervision in accordance with the requirements of the current law;
- makes conclusions regarding advocates' activities on the basis of demands from law enforcement agencies and courts;
- resolves other matters in accordance with the current law.

Beyond discussion of the Collegium itself, the law goes on to outline the functions of the General Assembly of the Collegium (Article 10), the Presidium of the Collegium (Article 11), the chairman of the Presidium of the Collegium (Article 12), and the Qualification Commission of the Collegium (Article 13), whose members are appointed by the Presidium of the Collegium, and the Disciplinary Commission (Article 22) which is created by the General Assembly of the Collegium. Thus, the Collegium and the other bodies within its control, oversees nearly every aspect of advocates' professional lives. Article 9 states that the Collegium is "non-governmental, independent, self-regulating," although it has always been considered by independent observers to be under the heavy influence of the executive branch. This Law thus does not in any way diminish the possibility of that influence and the inevitability of harassment and dismissal of disobedient lawyers that accompanies it.

In fact, other branches of government have some influence on the membership of the Collegium. As stated in Article 13 (The Qualification Commission of Advocates):

I. A Qualification Commission shall be formed in order to determine the professional preparedness of candidates to become advocates.
II. The Qualification Commission carries out its activities and shall be composed of nine members, including three advocates, judges and legal scholars.
III. The advocate who are members of the Qualification Commission are appointed by the Presidium of the Collegium of Advocates, the judges
Ð by the Supreme Court of the Republic of Azerbaijan, the other three members of the Qualification Commission who are legal scholars are appointed by the corresponding body of the executive branch.

The fact that six of the nine members of the Qualification Commission, which selects Collegium members, are chosen by the executive branch and by the judicial branch, which, by many estimates, is heavily influenced by the executive authorities, serves to further undermine the independence of the Collegium.

Adding to the monopolistic status of the Collegium is the fact that the Law makes no mention of the permissibility of alternate bar associations. The fact that they are not banned outright might be seen as encouraging, although their absence from the law sends a signal that they are not to be taken seriously. However, any attempt to exclude all other legal associations (such as the Association of Advocates of Azerbaijan, mentioned in more detail below) from public life would result in a serious violation of Article 58 of Azerbaijan's Constitution, which guarantees freedom of association as well as Article 6 of the Law "On Public Associations" which does not specifically prohibit lawyers from creating associations.

C. Restrictions in the Founding of Law Firms

The law does make mention of legal structures through which advocates can carry out their advocate activities. The section of Article 5 which discusses these legal structures is written as follows:

Article 5. General rules for the for carrying out advocate activities

V. Advocate activities can be carried out in the organizational-legal form individually or in the composition of organizational structures according to the procedures stipulated in the legislation of the Republic of Azerbaijan (legal consultations, advocates' bureau, advocates' firms, etc.). The organizational-legal form of advocate activity is chosen voluntarily. VI. The carrying out of advocate activities shall begin after the state registration of the structure, chosen for this activity on the basis of an organizational-legal form. The founders of such a structure can only be advocates.

In general, this section of the law seeks to add to the monopoly of the Collegium, whose influence now will penetrate in each and every law firm which engages in advocate activities. The damaging final clause was apparently not included in the draft version of the law, but was instead added at the last minute. As we shall see below, this clause could prove to be a problem for law firms established on the basis of the Council of Ministers' resolution, which allowed three licensed lawyers to open a law firm and engage in what were interpreted by many as advocate activities.

Many of these weaknesses in the Law could have been avoided had the government of Azerbaijan made the discussion of the draft law public. As it was, independent lawyers and other international experts were not allowed to participate in the process of drafting this highly important law. The government of Azerbaijan claims to have obtained approval from the Council of Europe (which keeps its recommendations secret), although it now appears that the text which the Council of Europe was given for review was not the one set to be passed by the parliament. In general, the government of Azerbaijan seems to have made little if no effort to incorporate suggestions from local and international observers to avoid a law which contradicts Azerbaijan's own legislation as well as international norms and places serious restrictions on the legal profession.

III. Cases: Aslan Ismailov, the Association of Lawyers of Azerbaijan, and the Azerbaijan Bar Association

While it is still early to determine how this Law will be implemented, what follows are a few cases which illustrate the consequences of a restricted legal profession.

A. The Case of Aslan Ismailov

The Collegium, with the apparent collusion of the Ministry of Justice, has conducted targeted harassment of one particular lawyer in apparent retaliation for his criticism of the Collegium and the Ministry of Justice and for his advocacy of a strong independent defense bar. Aslan Ismailov, formerly a judge in the Stavropol Territory during the Soviet era, and a prominent attorney and legal advisor to past governments, was a member of the Collegium until his dismissal in 1999. He received a license to provide paid legal services on June 12, 1998. He has served repeatedly, pro bono or for a nominal fee, as legal counsel in human rights cases that have met with government resistance, particularly cases involving freedom of the media.

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 a training and advocacy trip sponsored by the International League for Human Rights. During their stay, they met with judges, lawyers, journalists, scholars, congressional staffers, and government officials. Their trip coincidentally overlapped with a working visit by the Minister of Justice and the president's legal advisor, who were 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 expelled from the Collegium.

The case of Aslan Ismailov provides an important window into the system of Collegium control and coercion over attorneys.

The official reason for Aslan Ismailov's expulsion from the Collegium of Lawyers is a "serious violation" of Article 10 of the 1980 "Provisions on the Advokatura of the Azerbaijan Republic." In his response of April 20, 1999, to a formal inquiry from the International League for Human Rights, the chairman of the Presidium of the Collegium, Azer Tagiev, states that the offending act was engaging in "commercial activities" since June 1998 as the founder of the Viza law firm and "hiding all of his income" from the Collegium by failing to inform them of his commercial activities.

For several reasons, these allegations are false and the expulsion unjustified. First, Article 10 does not prohibit engaging in commercial activity. Rather, it stipulates that "Members of the Collegium may not work in state or social organizations." Since a private law firm is neither a state nor a social organization, the activity cited as warranting his expulsion in no way violates Article 10.

Second, Mr. Tagiev claims that "A. Ismailov categorically refused to provide any explanation" to the Collegium for his engaging in commercial activities. Notification to the Collegium is required neither by Azerbaijani law nor by any internal professional code of conduct. (The Collegium of Lawyers of Azerbaijan has no such code of conduct.) Moreover, Mr. Ismailov claims convincingly that he did in fact notify the Collegium of his opening an independent law firm. He asserts that the Collegium had to have been aware because it supplied him with some of the paperwork he needed to secure his license from the Ministry of Justice. Moreover, he claims, the Collegium had in fact entered into contractual obligations with his law firm, making the contention that they were unaware of his independent practice absurd. Mr. Ismailov has provided the International League for Human Rights with a copy of this contract, which predates his expulsion.

The official basis for Mr. Ismailov's expulsion is untenable for yet another reason: Mr. Ismailov opened his private law firm in full accordance with Azerbaijani law. Mr. Tagiev confirms in his letter to the League that Mr. Ismailov had duly obtained the necessary license from the Ministry of Justice. Moreover, neither the Collegium nor the Office of the Procurator General has initiated charges against Mr. Ismailov for any alleged violations of its code of conduct or the law, including this one - something they would reasonably have done if the allegation of illegal conduct was in fact true.

Despite his patently unjust expulsion and resulting limitations on his ability to practice law, an appeals court recently ruled in favor of the Collegium, suggesting either gross incompetence or that court's susceptibility to political pressure to limit Mr. Ismailov's ability to practice law in Azerbaijan.

In order to restore his right to practice his profession as a criminal trial attorney, Ismailov brought suit against the Collegium in a district court alleging that his expulsion was illegal. In documents submitted to the court, the Collegium asserted two reasons for Ismailov's expulsion: (1) he failed to obtain permission from the Collegium for his trip to the U.S. and to provide a formal explanation for his trip after he returned, and (2) his work as a privately licensed lawyer constitutes entrepreneurial activity, which the Collegium argued is forbidden for its members under the 1980 Provisions on the Advokatura. In addition to these two official reasons submitted to the Court, in oral arguments witnessed by a League representative, the Collegium referred to additional justifications such as Ismailov's criticism of the Collegium's politically-motivated monopoly on the bar; his attempts to promote himself in the local media; alleged breaches of his responsibilities as an advocate; and his efforts to politicize his case, citing his references to his meeting with opposition leader Rasul Guliev in the U.S. and his attempts to have observers from international organizations and the U.S. Embassy in the courtroom.

In other fora, the Collegium has given varying reasons for Ismailov's expulsion. In meetings with U.S. Embassy officials and correspondence with the League, the Collegium denied that Ismailov's expulsion was in any way related to his trip to the U.S. Instead, the Collegium attributed his expulsion only to charges that Ismailov had obtained his private license illegally, and that he was engaged in illegal economic activity (a reference to the private practice of law, not other business). The latter was technically the same charge made in court, but the Collegium implied to foreigners that Ismailov was hiding income or engaged in activity illegal in itself. In court, the Collegium denied it had made such charges and argued only that Ismailov's activity was technically illegal because a Collegium member cannot be engaged in private legal practice, in their interpretation of the law. Immediately following Ismailov's expulsion, the deputy head of the Collegium said in a taped interview for a local newspaper that the expulsion was based on Ismailov's conduct during his trip to the U.S.

Under scrutiny, the Collegium's charges are legally untenable. There is no clear requirement that Collegium members receive permission to travel abroad, or debrief after their trips, and no other cases of the Collegium objecting to travel by one of its members could be found. Many Collegium members travel without ever asking or receiving permission. Ismailov himself had traveled abroad to Strasbourg to take part in meetings at the Council of Europe four times in the previous year and the Collegium raised no objections.

The second asserted grounds for expulsion has broad implications for the ability of lawyers to practice independent of the Collegium. The Collegium alleges that the 1980 Provisions on the Advokatura prohibits advocates from engaging in any economic activity other than teaching or research, and that the private practice of Collegium members constitutes illegal "economic activity," which is specifically prohibited in the 1980 law. In oral arguments in Court, Collegium officials took the position that even simply holding a license to practice privately would constitute a violation of the restriction on advocates' economic activity and be grounds for expulsion.

Several factual and legal points raised by Ismailov at trial illustrate that the Collegium's position is legally untenable. The old Soviet Law on the Advokatura had been superseded by the new constitution and other legal acts of the independent state of Azerbaijan. According to Azerbaijani law, specifically Article 50 of the "Law on Normative Acts," if a new law contradicts the norms of an old law, "the norms of the new law are applied." Article 59 of the 1995 Constitution of Azerbaijan states categorically that "Everyone may engage in commercial activity." Thus, the blanket right to engage in commercial activity enshrined in the 1995 Constitution had superceded the 1980 law. 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. Finally, Ismailov made a convincing case that the presidential decree on licenses extends to advocates and has greater legal authority than a Soviet law passed twenty years ago that is understood to be outdated.

Thus, the issue at stake is not that the government wishes to regulate attorneys who might charge high fees and make it difficult for the poor and victims or human rights abuse to obtain counsel. Rather, the government's objective is to regulate - indeed overregulate - any type of private criminal defense, even defense that is pro bono, or for a nominal fee, unless subjected to political control.

Even if private practice as such were prohibited to Collegium members, Ismailov would technically not be in violation of the law. He does not hold an official position at the Viza law firm where he works, but actually works there under a contract the firm concluded with the Collegium in which the firm pays for Ismailov's services. The firm had in fact paid the Collegium according to the contract each month from October 1996 until May 1998. When Ismailov produced the contract in court, the Collegium initially argued that it was invalid because the supervisor, not the presidium, had approved it. The last day of trial, the Collegium changed its position and argued that the agreement might be valid but that it only empowered Ismailov to provide legal services to Viza itself, not to the firm's clients.

The inconsistent, changing, and legally unfounded charges make it clear that Ismailov's expulsion was a selective retaliatory act by the Ministry of Justice and the Collegium. When questioned about the timing of Ismailov's expulsion, on the heels of his return from the U.S., Collegium officials asserted that they had only recently become aware of his illegal private practice. This is highly improbably given the high profile often accorded Ismailov's cases in the media. In addition, almost a year prior to the decision to expel him, Ismailov's Collegium supervisor himself had not only seen, but notarized the paperwork that Ismailov submitted as part of his application for a law license. When pressed about why other Collegium members who hold private licenses were not being expelled, at least one of whom was pointed out in the courtroom, the Collegium deputy chair asserted they were unaware of any other members who held licenses and promised that appropriate action would be taken against them as well.

Despite the clear weight of the legal arguments, the district court ruled against Ismailov. He appealed the decision in higher courts, and by September, his appeal to the Supreme Court had been rejected, and he had exhausted all existing local remedies for his right to practice his profession.

The international human rights community has three interests at stake in this particular case. First, Ismailov is presenting the legal case for an independent bar, which must be a central element in legal reform for any country. Second, he is one of the most high-profile individuals raising important issues like corruption, media censorship, and other human rights violations, and not only in public, but in the courts. If he is silenced, it will send a strong signal to others who might be discouraged from raising legal challenges to human rights abuses and injustice in the courts.) Third, he has challenged the unreformed, Soviet-era Collegium of Advocates, similar to the Collegia in most other post-Soviet states, and his case is a litmus test for the degree to which the rule of law, defended vigorously by lawyers, will be tolerated by post-Soviet governments.

Although there is not a mechanism as such for Ismailov to appeal his individual case, the Constitutional Court could 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.

In fact, Ismailov's case could be retried on the grounds that one of the main charges against him - that he was engaging in business activity in violation of the 1980 Provision on the Advokatura - is no longer valid now that this provision has been superseded by a new law, which makes no mention of business activity. However, there seems to be little political desire to have Ismailov reinstated into the Collegium and the chances that either the Baku city court or the Supreme Court will hear his case are slim.

Beyond expelling him from the Collegium, the Ministry of Justice also made attempts to strip him of his license, a step which would have completely deprived him of his right to practice his profession. In June 1999, an official audit (proverka) was conducted of the Viza law firm of which he is the founder with the apparent intention of finding materials that would justify taking away his license. Fortunately, following the intervention of the international community and the U.S. Ambassador to Azerbaijan, the Ministry ceased further action to remove his license.

With the passing of the Law "On Advocates and Advocate Activity," Ismailov can now be persecuted on a new level as well. He is the sole founder of the law firm Viza, which has until recently engaged in advocate activity. In theory, now that he is no longer a member of the Collegium, Viza could thus potentially be closed by the authorities. This could also be the case for nearly a dozen other law firms which were founded by licensed lawyers (not Collegium members) who had practiced advocate activity on the basis of a license. It seems unlikely that the authorities would likely take such a drastic step, although the fact that the current legislation puts these law firms at potential risk should be of great concern.

B. The Case of the Association of Lawyers of Azerbaijan

As a response to increased government restrictions on lawyers, the Association of Lawyers of Azerbaijan (ALA) was founded on May 20, 1997. On three separate occasions, the non-profit, non-governmental organization has applied for registration, and each time it was refused by the Ministry of Justice. At least once, the Ministry violated the law by failing to accept or reject the ALA's application within four months of submission. Efforts to contest the Ministry's decision in a regional court in December 1997 failed. After changing their by-laws and submitting to a number of other requests, the ALA re-applied with a civil suit, and was once again rejected, despite the lawyers' full compliance with the law. The judge at People's Court told the ALA point-blank: "I can't dispute the Ministry of Justice; I can't cut off my own hands."

Despite its prolonged inability to obtain registration, the ALA managed to attract more than 40 members. With this support, the ALA set up a modest office and has worked to implement various programs, including: 1) general legal education for the public 2) legislative and court reform; 3) legal aid to NGOs and independent press; 4) professional training for attorneys and students; 5) outreach to other attorneys at home and abroad. Although official membership is small, the ALA also reaches other attorneys who at this time are either fearful of joining the organization, due to possible retaliation by the regime, or who are reluctant to give up their time to struggling for the very life of the organization itself.

The ALA prepared pocket-sized pamphlets providing legal advice for citizens detained by the police. It has published several books, including the decisions of the Supreme Court, speeches made by lawyers in court (an important way of sharing trial strategies in a non-precedent system), and articles analyzing current legislative developments and the state of the bar. Members have given lectures at local universities, and hold regular meetings to discuss urgent legal issues. In June 1998, the ALA and the U.S. National Democracy Institute (NDI) jointly organized a seminar on the problems of registration of NGOs in Azerbaijan; 30 unregistered NGOs attended.

The ALA did finally obtain official registration on February 15, 2000, nearly three years after it first applied. The reason for this was likely twofold: the Council of Europe had been putting pressure on the government of Azerbaijan to register a series of organizations, including the ALA, which it had been refusing to register for years. The other reason is that just days before the ALA obtained registration, Aslan Ismailov, one of the founders of the organizations since the very beginning, was told by an official from the Ministry of Justice that the ALA would continue to have difficulty as long as he remained one of the founders. He thus withdrew his name from among the list of founders, and the organization was registered shortly thereafter.

Having obtained registration is certainly a positive step, although it is by no means a sign that the government of Azerbaijan is willing to recognize that the ALA represents an alternative of sorts to the Collegium. Aside from registration, the authorities have many other tools to impede public associations and it thus remains to be seen to what extent the authorities allow the ALA to function in practice.

C. The Case of the Azerbaijan Association of Advocates

The Azerbaijan Association of Advocates (AAA), unlike the ALA which sought to unite primarily jurists, was created with the intention of bring together advocates. The organization unites about 40 lawyers, who up until recently had been engaging in advocate activities on the basis of a license from the Ministry of Justice. Since the passing of the new Law, they are unable to do this any longer. There were also two Collegium members who initially took part in the organization's activities, although they have since ceased doing so, fearful of their own status in the Collegium. The case of Ismailov, while depriving him of the ability to practice law, has also served as a powerful example to any other lawyer who has thought about challenging the Collegium system.

The AAA, composed of 14 founders including Ismailov, initially submitted its registration documents to the Ministry of Justice on June 18, 1999. Only several months later (in violation of the law, which says that a response shall be given within ten days) on August 4, 1999, the AAA received a letter from Fazil Mamedov, the head of the Ministry of Justice's Board for the State Registration of Legal Entities, notifying them that registration of the organization could not be considered until the draft law on the legal profession had been passed.

On the grounds that the decision of the Ministry of Justice was unlawful, the AAA resubmitted registration documents several weeks later. On November 19, 1999, the AAA received a second letter signed by Fazil Mamedov denying the organization registration on the grounds that the organization's documents violate the Law on Public Associations (although no specific reasons were provided) and that, once again, registration of the organization could not be considered until the draft law on the legal profession was passed.

The Law "On Advocates and Advocate Activity" entered into force on January 27, 2000. Shortly thereafter, the AAA submitted its registration documents for the third time, although they have yet to receive a response.

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