State-appointed advocate of the historian indicted with high treason...

Analysis

Per information released on April 16 of the current year, the State Security Service arrested historian Zahiraddin Ibrahimov. 

Ibrahimov is accused of several crimes, including high treason. An interesting point in this case is the statement of Z.Ibrahimov's state-appointed advocate. Sayyara Aliyeva told OC Media that she participated in the interrogation of the accused and that the historian admitted to cooperation with the structures of the Republic of Armenia in exchange for financial interest. In response to the journalist's questions about the details of the case, the advocate said that she knew nothing about the historian's kidnapping, but there was no ethnic motive for his arrest. "I don't know where he was kidnapped from, but during interrogation he confessed to what he did in 2018, 2019 and 2020, talked about the rights of the Talysh, Talysh organizations, the violation of the rights of the Talysh. He talked about stupid things (referring to Ibrahimov's statements about the Talysh). We are all (simply) Azerbaijanis," Aliyeva told OC Media.

"Tribunat" analyzed the character of statements made to the media by advocate Sayyara Aliyeva regarding the criminal case of her client, her attitude towards the criminal case in which he was accused, and the vocabulary she used in light of the norms governing legal practice.

In accordance with Article 61 of the Constitution, everyone has the right to high-quality legal aid. According to the Law “On Lawyers and Legal Practice”, an advocate “shall not commit any action contrary to the interests of the person who has applied for legal aid and which impedes the exercise of his/her rights, shall not confirm his/her connection with the committed crime and his/her guilt contrary to the interests of the person he/she is defending, shall not withdraw the complaint directed at his/her defense, shall not disseminate facts and documents known to him/her in connection with the provision of legal aid without the permission of the person whose interests are represented or defended”. In particular, when performing his/her duties, an advocate shall comply with the requirements defined as ethics, such as “... not to allow actions incompatible with the legal practice ..., rude, insulting actions and words degrading the honor and dignity of a person”. Other requirements related to advocate ethics are set out in the Regulations on the Code of Conduct for Lawyers. An advocate shall demonstrate honest behavior, loyalty, confidentiality and civilized behavior towards the person who has addressed. Failure to comply with such requirements may result in the advocate being subject to disciplinary repercussion and even expulsion from the Bar.

Simultaneously, the advocate’s obligations to the person who has appealed within the framework of a criminal case are reflected in the Code of Criminal Procedure. According to Article 92 of the Code, an advocate is prohibited from "taking any action contrary to the legitimate interests of the person he/she is defending, including confirmation of his/her connection with the committed crime and guilt." Furthermore, an advocate is prohibited from declaring the suspect or accused person's connection with the incident, his/her guilt in commission of a crime, and not acting in accordance with the position chosen by the defense. In this case, according to Article 114 of the said Code, the accused has the right to object to the advocate.

The statement to the media by S. Aliyeva in the criminal case against Zahiraddin Ibrahimov, according to the legislation, contradicts her duties as an advocate and criminal procedural legislation. Instead of high quality defense of rights and legitimate interests of the accused, she confirmed Ibrahimov's relation and guilt with the indictment, and also called his views on the rights of the national minority "stupid". However, the above-mentioned procedural legislative norms unequivocally prohibit a lawyer from taking any action contrary to the legitimate interests of the person to be defended, including confirmation of his connection and guilt with the committed crime.

According to public data on the official portal of the Bar Association, Sayyara Aliyeva has 35 years of experience as an advocate. The fact that an advocate with such extensive professional experience voiced illegal and ethically problematic opinions about the person whose interests and benefits she is supposed to defend not only casts doubt on her professional suitability, but also creates the impression that she is in cooperation with the investigative authorities contrary to the position of the defense, and that she is not independent and impartial, contrary to legislative requirements. In many cases, since the accused is isolated from society, contact with the public is mainly ensured through an advocate. The direct and subsidiary function of an advocate is to defend the accused not only in court, but also in face of the public. While the attitude of Zahiraddin Ibrahimov, his family members, and representatives of the Talysh Cultural Center and Talysh National-Cultural Autonomy he stands for to the accusation is still unknown, the advocate’s statement that the historian considers himself guilty and admits to cooperation with Armenian special services in exchange for financial interest serves to form his negative image in society.

On the other hand, given that the historian is accused of treason, it is undeniable that there is some information here that constitutes a state secret. According to Article 200 of the Criminal Procedure Code, the body conducting the criminal proceedings, and in this specific case, the State Security Service, which is conducting the investigation, must take measures to protect information that constitutes a state secret. Likewise, according to Article 222 of the same Code, the dissemination of preliminary investigation information is prohibited, except in specific cases. Although there is no information in open sources about whether the investigator's advocate was warned about the inadmissibility of disseminating preliminary investigation information, it is doubtful that an employee of the investigative body "forgot" to give a written warning to the participants in the criminal process, including the defense lawyer, in the case of a particularly serious crime, high treason. However, in all cases, it is clear that Aliyeva's statement to the regional media contradicted the interests of the preliminary investigation and violated the rights and legitimate interests of the accused, who is the main figure in the criminal process.

Domestic legislation provides for criminal liability for the dissemination of investigative or preliminary investigation information. In accordance with the norm, a person who has been warned by law, that is, in this context, an advocate, is prohibited from dissemination of investigative or preliminary investigation information without the permission of the investigator, prosecutor, or judge exercising the function of judicial supervision. The fact of dissemination must impede the conduct of the preliminary investigation or cause moral/material damage to the interested person. Although it is difficult to determine to what extent Sayyara Aliyeva's statement impeded the course of the preliminary investigation, it cannot be ruled out that this statement affected the accused from a moral perspective.

Then again, the advocate’s public remarks violated Z. Ibrahimov's presumption of innocence and exceeded the limit of doubt of commission of a crime.

Complaints are periodically raised about the quality of legal aid provided at the state expense. These complaints mainly concern the unsatisfactory quality of legal aid provided by appointed advocates, their superficial participation in investigative actions and court hearings, and in some cases their cooperation with the investigation contrary to the interests of the accused,  etc.

 As a rule, in professional jargon, such lawyers are referred to as “paykavoy” (reflecting the Azerbaijani pronunciation of the Russian word пайковый, an adjective referring to “payok”, that is food provided for a certain period and in a certain amount. Such use implies that the lawyer is also provided at the state expense - ed.). Both in political and ordinary cases, defendants and contract advocates complain about formal representation. Although the Bar Association is reported to be grappling with the problems caused by appointed representation, the Association believes that such discussions among lawyers are unproductive. However, almost half of the funds allocated to the Bar Association from the public budget in 2024 alone - 5 million 500 manats - were directed just to advocates working at the state expense. For comparison, in 2023 this amount was 4,999,982.10 manats, and in 2020 it was 2,664,167.0 manats.

Despite the officials of the Bar Association claim that they are struggling against formal advocacy and that mechanisms exist for the efficient expenditure of the public budget, the main issue that will be considered a success in this area is the increase in the hourly rate of legal aid paid at the state expense following countless years.

The case of Sayyara Aliyeva has once again highlighted the lack of independence of the bar association in Azerbaijan. Local and international organizations insist that, despite the fact that the relevant legislation stipulates that the Bar Association is a non-governmental and independent organization, its activities are vague. In its 2021 report, the International Bar Association’s Human Rights Institute, entitled “The Bar Association and Lawyers in Azerbaijan,” the organization, citing local and international human rights organizations, concluded that the national Bar Association is not self-governing. This is due to the existence of the Bar Association’s monopoly on legal practice, its biased attitude towards independent advocates, and the low level of access to legal aid. In a context where the independence of the body representing the interests of advocates is in doubt, the conclusions about the ineffectiveness of the appointed advocate as a whole are irreversible. The reflection of such cases is more pronounced in criminal cases with political background. In the absence of cooperation with the authorities conducting the criminal proceedings, advocates face pressure and expulsion from the Bar Association. In the Namazov group cases related to this precedent, the European Court of Human Rights noted that the practice of expulsion from the Bar Association was disproportionate and violated Article 8 of the Convention. Local and international human rights organizations emphasized that the failure to implement decisions and the provisions related to the reform of the Bar Association directly paved the way to superficial legal aid.

The ECHR stated that formal legal representation in the Gafgaz Mammadov group cases violated the applicants' right to legal assistance protected by Article 6 of the Convention.

“Tribunat” comes to the conclusion that the statements made to the media by Zahiraddin Ibrahimov’s appointed advocate in regards with the criminal case are not an isolated, particular incident, but another manifestation of the existence of systematic problems related to the bar association. Such problems are evidenced more sharply against the background of the daily deterioration of the human rights situation in the country, and as a result, the list of facts of violation of the legislation on advocacy and lawyer ethics is expanding. Despite the increase in the number of advocates in recent years and the establishment of relations of the Collegium in the field of international cooperation, the problem of the independence of the single institution uniting advocates threatens the constitutional obligation of the state to provide high-quality legal assistance.