Information Note on the Court’s case-law 241
June 2020
Bagirov v. Azerbaijan - 81024/12 and 28198/15
Judgment 25.6.2020 [Section V]
Article 10
Article 10-1
Freedom of expression
Lawyer suspended for public criticism of police brutality and later disbarred for disrespectful remarks about a judge made in courtroom when representing Ilgar Mammadov: violation
Facts – The applicant was a lawyer and a member of the Azerbaijani Bar Association (ABA). In 2011 he was suspended from the practice of law for a period of one year on account of public criticism of police brutality. In 2015 he was disbarred on account of the following statements he had made in the courtroom when representing Mr Ilgar Mammadov during his trial: “Like State, like court ... If there were justice in Azerbaijan, Judge R.H. would not deliver unfair and partial judgments, nor would an individual like him be a judge”. The domestic courts found that such statements had cast “a shadow over our State and statehood” and “tarnished the reputation of the judiciary”.
Law – Article 10 (suspension):
The applicant’s suspension had amounted to an interference with the exercise of his right to freedom of expression. In so far as the relevant decision had referred to the applicant’s intention to organise protests against police brutality, it had failed to specify which domestic-law provision had been breached in that respect. Nor did the Court see any provision preventing a lawyer from calling for peaceful protests.
The applicant’s suspension had also been motivated by a breach of lawyer confidentiality. However, the applicant had not breached the secrecy of the judicial investigation by commenting on or disclosing any document relating to the investigation. He had been sanctioned merely for reiterating a mother’s arguments concerning the circumstances of her son’s death in police custody, which she had voiced at a press conference. It did not appear from the relevant law that the use of information available in the public domain fell under lawyer confidentiality. On the contrary, information falling under lawyer confidentiality must have been obtained by a lawyer in the furtherance of his or her professional activity. However, the applicant had become the mother’s representative in the proceedings relating to her son’s death only after having made his public statements. Therefore, when making those statements, the applicant could not have obtained the information in question in connection with carrying out his professional activity. In any event, the mother, who had subsequently become his client, had not complained about his action. The domestic courts, when confirming the applicant’s suspension, had failed to address properly his arguments in that respect. The interference had therefore not been “prescribed by law”.
Conclusion: violation (unanimously).
Article 10 (disbarment):
The applicant’s disbarment had amounted to an interference with the exercise of his right to freedom of expression. The interference had pursued the legitimate aim of “maintaining the authority of the judiciary”. The question of its lawfulness was left open.
The remarks, accusing a judge of a lack of capacity to be a judge, had been disrespectful and possibly offensive. However, the domestic courts had not given any consideration to the fact that the applicant had made the impugned statements in a courtroom in the course of the criminal proceedings in his capacity as his client’s lawyer. They had not been repeated outside the courtroom, for instance in the media. In the courtroom, the principle of fairness militated in favour of a free and even forceful exchange of arguments between parties. Moreover, those comments had mainly expressed the applicant’s objections to the decisions made by the domestic courts in the criminal proceedings against Mr Ilgar Mammadov. When the impugned remarks were made, the Court had already ruled in the case of Ilgar Mammadov v. Azerbaijan, finding that there had been a breach of Articles 5 and 18 of the Convention. The Court subsequently found, in Ilgar Mammadov v. Azerbaijan (no. 2), that there had been a number of serious shortcomings in the trial.
The domestic court’s finding that the applicant had misused his right to freedom of expression “with a view to casting a shadow over our State and statehood” had been irrelevant for the purposes of Article 10 and could not be considered as a reason for restricting the freedom of expression in a democratic society. The disbarment could not but be regarded as a harsh sanction, capable of having a chilling effect on the performance by lawyers of their duties as defence counsel. Furthermore, the existence of the previous disciplinary proceedings against the applicant could not justify his disbarment, as the applicant’s suspension had not been prescribed by law and the Court had already found a breach of his right to freedom of expression on that account.
In sum, the reasons given by the domestic courts in support of the applicant’s disbarment had not been relevant and sufficient and the sanction imposed on the applicant had been disproportionate to the legitimate aim pursued.
Conclusion: violation (unanimously).
The Court also unanimously found a violation of Article 8 on account of the applicant’s suspension and subsequent disbarment. Noting a pattern of arbitrary arrest, detention and other measures taken in respect of government critics, civil society activists and human rights defenders, the Court underlined that an alleged need in a democratic society to sanction a lawyer by disbarment in circumstances such as the present would need to be supported by particularly weighty reasons.
Article 46: It was left to the Committee of Ministers to supervise the adoption of measures aimed, among others, at restoring the applicant’s professional activities. Those measures should be feasible, timely, adequate and sufficient to ensure the maximum possible reparation for the violation found by the Court, and they should put the applicant, as far as possible, in the position in which he had been before his disbarment.
Article 41: EUR 18,000 all heads of damage combined
(See also Nikula v. Finland, 31611/96, 21 March 2002, Information Note 40; Saday v. Turkey, 32458/96, 30 March 2006, Information Note 84; Mor v. France, 28198/09, 15 December 2011, Information Note 147; Ilgar Mammadov v. Azerbaijan, 15172/13, 22 May 2014, Information Note 174; Morice v. France [GC], 29369/10, 23 April 2015, Information Note 184; Bono v. France, 29024/11, 15 December 2015, Information Note 191; Bédat v. Switzerland [GC], 56925/08, 29 March 2016, Information Note 194; Jankauskas v. Lithuania (no. 2), 50446/09, 27 June 2017, Information Note 208; Ilgar Mammadov v. Azerbaijan (no. 2), 919/15, 16 November 2017; Čeferin v. Slovenia, 40975/08, 16 January 2018, Information Note 214; Ottan v. France, 41841/12, 19 April 2018, Information Note 217; Aliyev v. Azerbaijan, 68762/14 and 71200/14, 20 September 2018, Information Note 221; Natig Jafarov v. Azerbaijan, 64581/16, 7 November 2019; Namazov v. Azerbaijan, 74354/13, 30 January 2020; Recommendation No. R(2000)21 of the Council of Europe’s Committee of Ministers to member States on the freedom of exercise of the profession of lawyer, adopted on 25 October 2000; Report of the Special Rapporteur of the Human Rights Council on the independence of judges and lawyers in the annual report (A/71/348) to the UN General Assembly (2016, 71st session of the General Assembly).
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This summary by the Registry does not bind the Court.
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