Judgment of the ECHR of 25 June 2020 in the case "Bagirov v. Azerbaijan" (aplications N 81024/12 and 28198/15).
in 2012 and 2015, the applicant was assisted in the preparation of aplications. Subsequently, the aplications were consolidated and communicated to Azerbaijan.
The case successfully dealt with aplications about the suspension of the applicant's right to practice law for public criticism of police violence and the subsequent deprivation of his status as a lawyer for disrespectful comments made against the judge during the court session. The case violated the requirements of article 10 of the Convention for the protection of human rights and fundamental freedoms.
CIRCUMSTANCES OF THE CASE
The applicant was a lawyer, a member of the Azerbaijan bar Association. In 2011, his status as a lawyer was suspended for one year due to public criticism of police violence. In 2015, he was deprived of the status of a lawyer for the following disrespectful remarks made in the courtroom in the case of Ilgar Mammadov, whom the applicant represented: "What state, such is the court... If there was justice in Azerbaijan, judge R. H. would not make unfair and biased decisions, and someone like him would not be a judge." The courts of the Respondent state decided that these statements "cast a shadow on the state and statehood" and "undermine confidence in the judiciary".
LEGAL ISSUES
Regarding compliance with article 10 of the Convention (suspension of the status of a lawyer). The suspension of the applicant's right to practice law constituted an interference with the exercise of his right to freedom of expression. Despite the fact that the court referred to the applicant's intention to organize protests against police violence, the relevant court decision did not specify the provisions of the law of the Respondent state that were violated in this regard. The European Court also did not see any grounds that prohibited the lawyer from calling for peaceful protests.
The suspension of the applicant's right to practice law was also motivated by a violation of professional secrecy. However, the applicant did not violate the secrecy of the judicial investigation by commenting on or disclosing any document related to the investigation. He was only punished for repeating the words of his mother about the circumstances of her son's death in custody, which she voiced during a press conference. The relevant law did not imply that the use of information that was publicly available violated the professional secrecy of the lawyer. On the contrary, information that was subject to professional secrecy should have been obtained by the lawyer in the course of his professional activities. The applicant became the mother's lawyer in the proceedings concerning the death of her son after he had made the relevant public statements. Thus, at the time when these statements were made, the applicant could not have obtained the relevant information in the course of his professional activities. In any case, the mother of the deceased, who later became his client, did not complain about these actions. The Azerbaijani courts, while approving the suspension of the applicant's right to practice law, did not properly consider the applicant's arguments in this regard. Consequently, the intervention was not "provided for by law".
RESOLUTION
The case involved a violation of the requirements of article 10 of the Convention (adopted unanimously).
Regarding compliance with article 10 of the Convention (withdrawal of the status of a lawyer). The deprivation of the applicant's status as a lawyer constituted an interference with his right to freedom of expression. The intervention had the legitimate aim of "ensuring the authority of justice". The question of whether it was provided for by law remained without consideration.
Statements that accused the judge of not having the capacity to be a judge were disrespectful and possibly offensive. However, the courts of the Respondent state did not take into account the fact that the applicant made these comments in the courtroom during the criminal proceedings as a lawyer. They were not repeated outside the courtroom, for example, to the media. During the court session, the principle of justice presupposed a free and even active exchange of arguments between the parties. In addition, these comments mainly expressed the applicant's objections to the decisions taken by the Azerbaijani courts in the criminal case of Ilgar Mammadov. When the contested expressions were expressed, The European Court in the case "Ilgar Mammadov V. Azerbaijan" (Judgment of 22 may 2014, complaint No. 15172/13) had already concluded that there had been violations of articles 5 and 18 of the Convention. Subsequently, in the case "Ilgar Mammadov V. Azerbaijan (No. 2) "(Ilgar Mammadov V. Azerbaijan) (N 2) (Judgment of 16 November 2017, application No 919/15) the European Court of justice held that a number of serious shortcomings had been committed in the course of the trial.
The conclusion of the Azerbaijani court that the applicant had abused the right to freedom of expression "in order to cast a shadow on the state and statehood" was not relevant for the purposes of article 10 of the Convention and could not be taken into account as a basis for restricting freedom of expression in a democratic society. The removal of the applicant from the status of a lawyer could only be considered as a severe punishment, which could have a deterrent effect on the exercise by lawyers of their duties as representatives of the defence. Moreover, the existence of previous disciplinary proceedings against the applicant could not justify the deprivation of his legal status, since the suspension of the applicant's right to practice law was not provided for by law, and the court has already found a violation of the applicant's right to freedom of expression in this regard.
In General, the grounds given by the Azerbaijani courts for depriving the applicant of the status of a lawyer were not relevant and sufficient, and the punishment imposed on him was not proportionate to the legitimate legitimate purpose.
RESOLUTION
The case involved a violation of the requirements of article 10 of the Convention (adopted unanimously).
The court also unanimously concluded that there had been a violation of article 8 of the Convention in the case in connection with the suspension of the applicant's right to practice law and the subsequent withdrawal of his status as a lawyer. Noting the existence of trends concerning arbitrary detentions, detentions and other measures against persons critical of the authorities of the Respondent state, civil society activists and human rights defenders, the Court stressed that the alleged existence in a democratic society of the need to punish a lawyer by depriving him of his legal status in the circumstances of the present case must be confirmed on particularly strong grounds.
In the application of article 46 of the Convention. The court left the Committee of Ministers to oversee the adoption of measures aimed, inter alia, at resuming the applicant's professional activities. These measures should have been feasible, timely, adequate and sufficient to ensure, to the extent possible, compensation for the violation established by the European Court, and they should have returned the applicant, as far as possible, to the position in which he would have been before the deprivation of his status as a lawyer.
COMPENSATION
In the application of article 41 of the Convention. The court awarded the applicant EUR 18,000 in respect of pecuniary and non-pecuniary damage.