For the past year, a divided community of lawyers in Azerbaijan has debated the Draft Law on the Legal Profession (advokatura, in Russian) and Legal Activities. [For Background see the CEP Eurasia Insight Archive of 1/3/00: "Before It's Too Late: Adopting the Right Law on the Legal Profession" by Erika Dailey.] Discussions are becoming more rancorous now that the bill is on the verge of becoming law. Detractors assert the bill ignores serious reservations from legal experts and parliamentarians about its undue restrictions on the role of lawyers in the judicial process. The draft has already passed the third reading, and President Heidar Aliev is expected to sign it the legislation into law within days.
The new law is in some ways an improvement on the legal framework which has governed legal services in Azerbaijan since 1980 (the Regulations on the Legal Profession). For example, it formally permits legal practice through licensing, as opposed to bar association credentialing, and introduces unprecedented definition of legal ethics. However, it continues to compromise lawyers' ability to function in the best interests of their clients.
One major flaw is the provision (Article 4) that lawyers be divided into first-class lawyers (those who provide all forms of legal services), and second-class lawyers (those deprived of their status as lawyers, and accorded only the authority to engage in "other forms of legal activity," excluding criminal defense). This artificial construction is probably a deliberate tactic to restrict individual lawyers who have been particularly active in defending human rights, primarily political rights. Arbitrary disbarments of outspoken lawyers, including Aslan Ismailov and others last year, demonstrate how these provisions can be abused in practice. Along with Articles 20 and 25, which outline professional ethics and reasons for disbarment, the legislation grants undue powers to the credentialing body. The new law thus keeps lawyers in constant fear of arbitrary disbarment; this, in turn, is likely to adversely influence the willingness of lawyers to take on politically sensitive cases, or provide a vigorous defense for their clients.
Article 10 permits the creation of only one professional organization for lawyers, the House of Lawyers (Palata Advokatov). The goal is to make it impossible for independent lawyers to organize into various professional structures, thereby facilitating government efforts to control the profession.
Regardless of other interpretations of the intent of Article 10, the House of Lawyers is also, technically, a non-governmental organization. Consequently, permission to create only one such organization is a serious breach of Article 58 of the Constitution of the Republic of Azerbaijan, and international normative acts guaranteeing the freedom of association. If this same restriction were applied in other spheres, there could be only one political party in Azerbaijan, one non-governmental organization, and so forth.
The new law also stipulates that anyone wishing to provide legal services in Azerbaijan must pay a state fee of 1 million manat for a license, approximately $230 US. This sum is roughly the equivalent of an entire month's salary for an average Azerbaijani lawyer. It is not worth it for most lawyers to pay such a significant amount for a few words printed on a piece of poor-quality paper. As it already stands, lawyers pay 40 percent of their income to "state fees" income taxes. Such high fees for licenses, which in practice can be revoked or restricted at any moment, is a strong disincentive for lawyers to seek professional independence.
There can be little doubt that the primary beneficiary of the new law on the legal profession is the Azerbaijani government. What else could be the justification for dividing lawyers into categories? Or for denying lawyers who are not members of the state's legal monopoly their right to a criminal practice? Suffice it to say that fewer than 15 percent of Azerbaijani legislators are lawyers.
The law is deserving of intense scrutiny by the Council of Europe, which has been closely involved in developing the legislation. The Council of Europe should be prepared to publicly condemn the law's flaws, and to speak out about human rights violations that will almost certainly result from its implementation. It can also deter the future passage of similarly dangerous legislation by making public their legal commentary to draft laws public (they are currently confidential), and by facilitating public discussion of the drafts.
Azerbaijan already lacks independent media and an independent judiciary; with the passage of this new law, it will also lack an independent legal profession. Supporters of civil society there have fresh cause for alarm.
Anagi Gadzhiev is the president of the Association of Lawyers of Azerbaijan, an unregistered non-governmnental organization. The organization provides pro-bono work to displaced persons and refugees. Mr. Gadzhiev received an award for his work in December 1999 from the Internation League for Human Rights. Erika Dailey, a Central Eurasia Project consultant, assisted with the preparation of this report.