CASE OF HAJIBEYLI AND ALIYEV v. AZERBAIJAN
Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application)
Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
5. The applicants were born in 1955 and 1962, respectively, and live in Baku and Absheron, respectively. 6. The applicants are well-known civil society activists and lawyers specialising in the field of the protection of human rights. The second applicant has represented applicants in more than one hundred cases before the Court. 7. At the time of the events in question the applicants were practising as lawyers on the basis of a special permit (licence) – issued by the Ministry of Justice (see paragraph 33 below) – to provide paid legal services. They regularly made various statements and published articles in the media, criticising the state of the legal profession in the country. 8. On 28 December 1999 a new Law on Advocates and Advocacy Activity (“the Law”) was adopted within the framework of a reform of the legal profession in the country. Under the Law, activity of legal counsel is to be provided by persons admitted to the ABA, and the defence of suspected and accused persons in criminal proceedings falls under the exclusive domain of the legal profession (see paragraph 34 below). Article I of its transitional provisions, as in force at the material time, also provided that persons who on the date of the entry into force of the transitional provisions of the Law were members of the already existing Bar Association or who had a special permit to provide paid legal services had the right to be founding members of the ABA, without having to pass a qualification examination, subject to their complying with the requirements in respect of candidates for admission to practice as legal counsel (see paragraph 35 below). 9. In November 2004 the constituent assembly of the ABA was held on the basis of the provisions of the Law, with the participation of members of the former Bar Association and lawyers holding a special permit. These participants were registered as founders of the ABA and they became its members. However, some lawyers practising on the basis of a special permit, including the applicants, were not invited to participate in the constituent assembly and their right to be founders of the ABA was not recognised. The applicants signed a petition alleging that holding the ABA’s constituent assembly under these conditions had been illegal and instituted court proceedings in this respect. 10. In the meantime, on 14 June 2005 new amendments to the transitional provisions of the Law were adopted providing for admission to the ABA of all lawyers holding a special permit, including those whose right to be founding members of the ABA had not been recognised, without passing a qualification examination, subject to their complying with the requirements in respect of candidates for admission to practice as legal counsel (see paragraph 36 below). 11. On an unspecified date in 2005 the first applicant applied for admission to the ABA on the basis of the amendments of 14 June 2005 to the transitional provisions of the Law. 12. On 27 January 2006 the Presidium of the ABA (Azərbaycan Respublikası Vəkillər Kollegiyası Rəyasət Heyəti – hereinafter “the Presidium”) held a meeting at which it examined and then dismissed his application. It appears from a document entitled “Extract from the record of meeting no. 2 dated 27 January 2006 of the Presidium” and annex no. 1 to that document – signed by the head of the administration of the ABA, Z.A. – that the President of the ABA (A.T.) declared the meeting open and then the members of the Presidium questioned the first applicant about his stance on the functioning of the ABA, before dismissing his application. The transcript of the meeting, which was one page long, reads as follows: “After giving the information about Annagi Hajibeyli [the first applicant] to the members of the Presidium, A.T. gives the floor to them for questions. I.S.: Mr Hajibeyli, you are one of the lawyers who brought an action in court asking for the invalidation of the constituent assembly of the ABA. What could you say about that? [The first applicant]: I suppose that the members of the Presidium are familiar with my opinion. I still maintain that the constituent assembly of the ABA was held in blatant breach of the requirements of the law. Moreover, numerous persons, who were entitled to be co-founders of the ABA, were unlawfully not allowed to attend the constituent assembly. A.T.: Mr Hajibeyli, your opinion is clear. Please wait outside. We want to discuss the question. Member of the Presidium [...]: One minute. I have a question. [The first applicant]: Please. Member of the Presidium: It follows that you consider this organ illegal. But why do you want to become a member of it? [The first applicant]: Irrespective of my stance on the constituent assembly of the ABA, the latter’s creation and functioning is a fact. Unfortunately, Azerbaijani law allows for the creation of only one bar association. I want to practise as a legal counsel. That is why I applied for admission to this bar association. A.T.: Everything is clear. Please wait for the issuance of the decision. One minute later the decision of the Presidium of the ABA rejecting Annagi Hajibeyli’s application for admission to that organ was declared.” 13. On an unspecified date in 2005 the second applicant applied for admission to the ABA, relying on the amendments to the Law of 14 June 2005. 14. On 19 November 2005 the Presidium held a meeting at which it examined his application but decided to dismiss it. It appears from the document entitled “Extract from the record of meeting no. 27 dated 19 November 2005 of the Presidium” (as well as annex no. 1 thereto) – signed by the head of the administration of the ABA, Z.A. – that A.T. declared the meeting open and then the members of the Presidium questioned the second applicant about his stance on the functioning of the ABA, before dismissing his application. The relevant parts of the transcript of the meeting, which is three pages long, read as follows: “After giving the information about Intigam Aliyev [the second applicant] to the members of the Presidium, A.T. gives the floor to them for questions. I.S.: Mr Aliyev, you brought an action in court against the ABA. Are you going to withdraw your action after your admission to the ABA? [The second applicant]: I don’t know other people’s opinion, but personally I have no intention of withdrawing my actions against the ABA and the Ministry of Justice. Unfortunately, these actions remain unexamined by the courts because of pressure brought by the previously-mentioned organs. ... I.K.: You state in your writing in the media that one of the main reasons for the current catastrophic situation of the courts in Azerbaijan is the [poor state of] legal profession. We would like to know your opinion in this respect. [The second applicant]: I am still of the same opinion. I consider that one of the main reasons for the current catastrophic situation of the law and human rights in Azerbaijan is the absence of independent judicial power and legal profession in the country. ... A.A.: I have a great respect for Mr Aliyev as a person and lawyer. However, he published articles insulting the members of the ABA in the media and in Law Newspaper. [The second applicant]: Whom have I insulted? A.A.: You have insulted the ABA in your writings. You write that advocates are acting as intermediaries (vasitəçiliklə məşğuldurlar). ... A.T.: The fact that you have stated that you will maintain your court actions against the ABA indicates that you don’t recognise the lawfulness of the ABA. [The second applicant]: Firstly, my colleagues and I did not question before the courts the lawfulness of the ABA, but rather sought the invalidation of its constituent assembly, which was held in blatant breach of the requirements of the law. ... A.T.: You want to become a member of the ABA, but you bring an action against it? [The second applicant]: What does that mean? Is it forbidden to bring an action against the ABA? In your law, the right of legal counsels to bring an action against the ABA is provided for. A.T.: You are not yet a legal counsel. [The second applicant]: I have practised as a legal counsel for fifteen years and the State gave me a permit. In any event, what difference does being a legal counsel make? You are a legal counsel; how can you speak like that? Everybody has the right to bring an action against any organ, including the ABA. A.T.: I consider that the Presidium should give its opinion by vote. ... I.K.: It is not allowed to admit Intigam Aliyev to the ABA because of the stance that he has held about the current ABA. [The second applicant]: I will not be surprised if you refuse my admission to the ABA on account of my critical views about the functioning of the ABA and its directorate, although such a decision will be shameful. ... A.T.: Please, those who are in favour of the issuance of a decision refusing Intigam Aliyev’s admission to the ABA should vote. By a unanimous decision of the members of the Presidium of the ABA the admission of Intigam Aliyev to the ABA is refused.” 15. On 21 February 2006 the first applicant brought an action in the Nasimi District Court alleging that the Presidium’s decision of 27 January 2006 had been unlawful. In particular, he argued that the Presidium had failed to substantiate its decision and had breached the transitional provisions of the Law. He further alleged the violation of his rights, as protected under Articles 10, 11 and 14 of the Convention, as a result of the refusal to admit him to the ABA. 16. Following a series of procedural decisions concerning the admissibility of the action, at the beginning of 2007 the Nasimi District Court commenced examining the case on the merits. It appears from the transcript of the Nasimi District Court’s hearing held on 7 February 2007, which was submitted to the Court by the first applicant, that the representative of the ABA at the hearing, I.K., stated, in reply to the first applicant’s question concerning the grounds for the Presidium’s decision of 27 January 2006, that the first applicant’s replies to the questions and his previous statements had justified the decision of the Presidium’s members. 17. On 9 February 2007 the Nasimi District Court delivered its judgment on the merits. The court held that the first applicant’s complaint should be dismissed because admission to the ABA was a matter which fell within the exclusive competence of the members of the Presidium and there had been no breach of law in the examination of the first applicant’s request by the Presidium. The relevant part of the judgment reads as follows: “It was established in the course of the court investigation that, while he disputed the decision of the Presidium, A. Hajibeyli [the first applicant] did not challenge the legality of that decision, but rather its motives. It follows that the issue argued by A. Hajibeyli in his application falls within the exclusive competence of the members of the Presidium and is related to their personal consideration and will. Article 1 (III) of the Law on Advocates and Advocacy Activity of the Republic of Azerbaijan provides that the prohibition of any interference with or pressure on the professional activity of legal counsels and their [professional] association by the prosecutor’s office, court, other State bodies, public associations, [or] any company, entity, organisation or official constitutes the basis of the legal profession. Therefore, given that the issue addressed by A. Hajibeyli in his application falls within the exclusive competence of the members of the Presidium and is subject to their consideration and will, any interference with that issue is not allowed by law.” 18. On 16 March 2007 the first applicant appealed against that judgment, alleging a violation of his rights, as protected under Articles 6, 10, 11 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention. In particular, he alleged that he had not been admitted to the ABA because of his statements about the functioning of the ABA and the poor state of the legal profession in the country. In support of his claim, the first applicant relied on the “Extract from the record of meeting no. 2 dated 27 January 2006 of the Presidium” (see paragraph 12 above) and the annex to that document. He also referred to the statements made by the representative of the ABA at the court hearings held before the Nasimi District Court, quoting the transcript of the above-mentioned court hearings. The first applicant further argued that the Presidium’s decision of 27 January 2006 had been unlawful, as it had been contrary to the transitional provisions of the Law. In that regard, he pointed out that his candidacy for admission to practice as a legal counsel had met all the requirements for candidates for admission, as provided for by Article 8 of the Law. 19. On 6 June 2007 the Court of Appeal dismissed the appeal and upheld the first-instance court’s judgment. The appellate court was silent as to the first applicant’s particular complaints relating to the breach of his right to freedom of expression. It further appears from the transcript of the Court of Appeal’s hearing held on 6 June 2007, which was submitted to the Court by the first applicant, that the representative of the ABA, I.K., again stated at the hearing that the members of the Presidium had considered that the first applicant should not be admitted to the ABA because of his stance on the functioning of the ABA. His statement reads as follows: “I.K.: You [the first applicant] have the transcript (stenoqram). After the examination of your documents, you were questioned by the Presidium, which then unanimously decided that A. Hajibeyli [the first applicant] should not be admitted [to practice as a legal counsel] because of his stance [on the functioning of the ABA]. I consider that the vote should be against [your admittance].” 20. On 14 August 2007 the first applicant lodged a cassation appeal, reiterating his previous complaints. In support of his claims, he again referred to the extract from the record of meeting no. 2 dated 27 January 2006 of the Presidium and the annex thereto, as well as the transcripts of the court hearings held before the Nasimi District Court and the Court of Appeal. 21. On 13 November 2007 the Supreme Court dismissed the cassation appeal and upheld the Court of Appeal’s judgment of 6 June 2007. The Supreme Court’s decision made no mention of the first applicant’s particular complaints. 22. On 2 December 2005 the second applicant brought an action in the Nasimi District Court, alleging that the Presidium’s decision dated 19 November 2005 had been unlawful. In particular, he alleged a violation of his rights, as protected under Articles 6, 10, 11 and 14 of the Convention. 23. Following a series of procedural decisions concerning the admissibility of the action, at the beginning of 2007 the Nasimi District Court commenced its examination of the action on the merits. It appears from the documents in the case file that in the course of the proceedings before the first-instance court the second applicant and the ABA lodged various requests and applications, which were dismissed by the court. The ABA also lodged a counterclaim against the second applicant for defamation. 24. On 11 August 2009 the Nasimi District Court delivered its judgment on the merits, dismissing both the claims of the second applicant and those of the ABA. As to the reasoning of the judgment concerning the second applicant’s action regarding his admission to the ABA, it was similar to that of the Nasimi District Court dated 9 February 2007 (see paragraph 17 above). 25. On 10 September 2009 the second applicant appealed against that judgment, alleging a violation of his rights, as protected under Articles 6, 10, 11, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention. In particular, he pointed out that he had not been admitted to the ABA because of his statements and articles about the poor state of the legal profession in the country. In support of his appeal, the second applicant relied on the document entitled “Extract from the record of meeting no. 27 dated 19 November 2005 of the Presidium” (see paragraph 14 above) and the annex thereto. He further argued that the Presidium’s decision of 19 November 2005 had been contrary to the transitional provisions of the Law. 26. On 2 November 2009 the Baku Court of Appeal dismissed the appeal, finding that the judgment of the first-instance court had been lawful. The appellate court was silent as to the second applicant’s particular complaints concerning the violation of his right to freedom of expression. 27. On an unspecified date the second applicant lodged a cassation appeal, reiterating his previous complaints. 28. On 18 June 2010 the Supreme Court upheld the Baku Court of Appeal’s judgment of 2 November 2009. 29. On 8 August 2014 criminal proceedings were instituted against the second applicant, Mr I. Aliyev, under Articles 192.2.2 (illegal entrepreneurship), 213.1 (large-scale tax evasion) and 308.2 (abuse of power) of the Criminal Code, which are the subject of a separate application brought by him before the Court (application no. 68762/14). At that time the second applicant was representing not only the applicants in the present case, but also a number of applicants in other cases before the Court. 30. On 8 and 9 August 2014 the investigating authorities seized a large number of documents from the second applicant’s office, including all the case files relating to the proceedings pending before the Court, which were in his possession and which concerned over 100 applications in total. The files relating to the present two applications were also seized in their entirety. The facts relating to the seizure and the relevant proceedings are described in more detail in a judgment relating to an application lodged by the first applicant (see Annagi Hajibeyli v. Azerbaijan, no. 2204/11, §§ 2128, 22 October 2015). 31. On 25 October 2014 the investigating authorities returned a number of the case files concerning the applications lodged before the Court, including the files relating to the present applications, to the second applicant’s lawyer.