Communicated on 3 September 2015
FIRST SECTION
Application no. 74354/13
Elchin NAMAZOV
against Azerbaijan
lodged on 7 November 2013
STATEMENT OF FACTS
The applicant, Mr Elchin Namazov, is an Azerbaijani national, who was born in 1978 and lives in Baku.
He was an advocate and a member of the Azerbaijani Bar Association (“the ABA”).
The facts of the case, as submitted by the applicant, may be summarised as follows:
A. Institution of disciplinary proceedings against the applicant
The applicant was the representative of R.H. in the criminal proceedings instituted against the latter for hooliganism following his participation in a demonstration organised by the opposition.
At the hearings held on 9, 16 and 27 August 2011, at the trial before the Nasimi District Court, a verbal altercation took place between the applicant and the presiding judge. It appears from the verbatim report of the hearings that, when the applicant asked the presiding judge to explain the charges against R.H. and, in particular, to clarify the notion of disturbance of public order, the judge refused to answer the question accusing the applicant of making a scene at the court. It transpires from the documents that at the hearing held on 27 August 2011 the applicant questioned a witness asking him to reply to the following two questions: “Are you an honest man?” (“Siz namuslu adamsınız?”) and “Do you think that an arbitrary judge can be considered as a conscientious judge?” (“Sizcə, özbaşınalıq edən hakim vicdanlı hakim hesab edilə bilərmi?”).
On 27 August 2011 the judge in question adopted a decision informing the ABA about the applicant’s alleged breach of the ethical rules of conducts for advocates. The judge noted in the decision that when the applicant had asked a witness to reply to the question “Do you consider that you are an honest man?” (“Siz özünüzü namuslu insan hesab edirsinizmi?”), the public prosecutor had objected to the question and, as a presiding judge, he had warned the applicant. In reply, the applicant answered him as follows: “You cannot do anything against me. Do all you can do. I accept that I am making a scene at the court. If you want I can also sign the transcript of the hearing in this respect” (“Siz mənə heç bir şey edə bilməzsiniz, nə edirsinizsə axırıncısını edin. Mən qəbul edirəm ki, məhkəmədə qalmaqal yaradıram, istəyirsinizsə dediklərimlə bağlı protokola da qol çəkim”). The judge also noted that despite his objections the applicant asked the witness further questions: “Did your administration tell you that whatever you say the judge Shahin Abdullayev will deliver the judgment that he intends?” (“Sizə rəhbərlik deyibmi ki, sən nə danışırsan danış, onsuzda hakim Şahin Abdullayev ona lazım olan hökmü çıxaracaq?”); “What do you expect of this fake court?” (“Bu saxta məhkəmədən nə gözləyirsiniz?”); “Do you consider that the judge is an honest and conscientious judge? (“Hakimi namuslu və vicdanlı hakim hesab edirsinizmi?”); “Have you ever seen an arbitrary judge like Shahin Abdullayev?” (“Şahin Abdullayev kimi özbaşınalıq edən hakim görmüsünüzmü?”). It was further noted in the decision that the applicant made the following statement about the judge: “I again confirm your legal illiteracy, you are in complete ignorance of the legislation” (“Sizin hüquqi savadsızlığınızı bir daha təsdiqləyirəm, sizin qanunlardan xəbəriniz yoxdur”).
The applicant was not provided with a copy of the Nasimi District Court’s decision of 27 August 2011.
On 14 September 2011 the Disciplinary Commission of the ABA held a meeting at which it discussed the complaint against the applicant. It appears from the transcript of the meeting that, although the members of the Disciplinary Commission asked the applicant to explain the complaint lodged against him, they refused to provide him with a copy of the Nasimi District Court’s decision of 27 August 2011. In this connection, the applicant informed them that as he had not been provided with a copy of the decision in question he was not aware of the content of the complaint against him. He also noted that he had not insulted the judge of the Nasimi District Court. It further appears from the transcript that the members of the Disciplinary Commission openly criticized the applicant for his appearance as an advocate in the media and its membership of the opposition party Musavat. In reply, the applicant stated that he was not a member of any political party and that there was no law which prohibits the advocates to appear in the media. Moreover, the applicant was not given the opportunity to present his ten-page explanation concerning the altercation between himself and the judge at the hearing before the Nasimi District Court. On the same day, the Disciplinary Commission of the ABA decided to refer the complaint against the applicant to the Collegium of the ABA.
On 16 September 2011 the Collegium of the ABA held a meeting at which it examined the complaint against the applicant. The meeting was held in the presence of the applicant who rejected the complaint against him. It appears from the transcript of the meeting that the President of the ABA confirmed that the applicant had not been provided with a copy of the complaint lodged against him. The President of the ABA further stated that he should have excluded the applicant from the ABA even before. Moreover, he criticized the applicant for his frequent appearance in the media noting that the investigators and the judges had complained about the applicant. On the same day, following the meeting, the Collegium of the ABA decided to refer the applicant’s case to a court for his disbarment. It also decided to suspend the applicant’s advocacy activity (vəkillik fəaliyyəti) until the court’s decision. It held that the applicant had failed to comply with Articles 14, 16 and 18 of the Law on Advocates and Advocacy. In particular, the applicant made offensive comments about the participants in the proceedings and prevented the judge to hold a normal hearing.
On 30 September 2011 the Collegium of the ABA lodged a request with the Fuzuli District Court asking the court to disbar the applicant.
B. Court proceedings concerning the applicant’s disbarment
On an unspecified date the applicant lodged a request with the Fuzuli District Court asking the court to forward the case to the Narimanov District Court. He substantiated his request by the fact that his factual residence was in Baku and not in Fuzuli.
By a decision of 3 November 2011 the Fuzuli District Court dismissed the request and decided to continue the examination of the case.
On 15 December 2011 the Fuzuli District Court delivered its judgment in which it ordered the applicant’s disbarment. The court held that the applicant had failed to comply with ethical rules of conducts for advocates as he had insulted the presiding judge and a witness at the hearing before the Nasimi District Court by making offensive comments about them. As regards the legal basis for the disbarment, the court relied on Article 22 of the Law on Advocates and Advocacy which provides that, if there were grounds for disbarment of an advocate, the Collegium of the ABA may, on the basis of an opinion of the Disciplinary Commission of the ABA, decide to refer the case to a court by suspending the advocacy activity of the advocate in question until the court’s decision. It was pointed out in the judgment that, although the applicant had been duly informed about the hearing, he had failed to attend it.
On 23 January 2012 the applicant appealed against the judgment. In particular, he complained that he had not insulted the judge at the hearing before the Nasimi District Court, but had tried to defend his client. In support of his version of the events, the applicant asked the appellate court to hear the witnesses who had been present at the hearing of 27 August 2011 before the Nasimi District Court. In this connection, he submitted a list of sixteen witnesses, including four advocates who had been present at the hearing in question. The applicant alleged that his case had not been duly examined by the ABA which wanted to punish him for his independence and social activism. He also submitted that the Collegium of the ABA was not entitled to adopt its decision of 16 September 2011 since the mandate of its members expired in November 2009. He further complained that, although the first instance court had relied on Article 22 of the Law on Advocates and Advocacy for his disbarment, that Law failed to specify the grounds for disbarment of an advocate and did not comply with the “quality of law” requirements.
On 10 May 2012 the Shirvan Court of Appeal dismissed the appeal, finding that the first-instance court’s judgment was justified. The appellate court further held that it could not hear the witnesses on behalf of the applicant because the applicant had failed to attend the hearing before the first-instance court and submit the same request before the lower court. The appellate court was silent as to the applicant’s particular complaints relating to the lack of competence of the Collegium of the ABA and the failure of the Law on Advocates and Advocacy to comply with the “quality of law” requirements.
On 31 October 2012 the applicant lodged a cassation appeal, reiterating his previous complaints.
On 8 May 2013 the Supreme Court upheld the Shirvan Court of Appeal’s judgment of 10 May 2012.
COMPLAINTS
Relying on Article 6 of the Convention, the applicant complains that his disbarment was unlawful and breached his rights protected under the Convention. In particular, he alleges that the Law on Advocates and Advocacy did not comply with the “quality of law” requirements since, although it provided for a sanction of disbarment, it did not specify in which circumstances this sanction could be applied. He also alleges that the Collegium of the ABA was not entitled to decide on his case on 16 September 2011 because the mandate of its members expired in November 2009.
The applicant complains under Article 6 of the Convention that his right to a fair trial was violated on account of the domestic courts’ failure to hear witnesses on his behalf. In particular, he alleges that, although he submitted a list of sixteen witnesses to the Shirvan Court of Appeal and the Supreme Court, none of them was heard by the domestic courts.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention, on account of his disbarment? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
2. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected as regards the domestic courts’ refusal to hear the witnesses on behalf of the applicant?
3. The parties are requested to submit copies of all documents relating to the disciplinary and court proceedings concerning the applicant’s disbarment.
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