Liability of a judge interrupting an attorney and complaining about her to the Bar Association

Analysis

Rovshana Rahimli, the attorney of political prisoner, director of the Political Management Institute, and political scientist Azer Gasimli, shared a status on her Facebook account accusing the judge of the Baku Grave Crimes Court, Telman Huseynov, of unethical behavior. Rahimli writes that judge Huseynov tries to put pressure on her, interrupts when she presents motions, or raises his voice and says that he will complain about her to the Bar Association.

“Tribunat” investigated the legal situation created by the judge's unethical behavior towards the attorney and his liability.

In accordance with Article 99 of the Law “On Courts and Judges”, the duties of a judge include strictly and unwaveringly complying with the requirements of the law upon administration of justice, ensuring the moral and educational impact of judicial activity, being fair and impartial, and refraining from any action that undermines the reputation of justice, the high name, honor and dignity of the judge.

Article 310.2 of the Code of Criminal Procedure sets out the obligations of participants of the court session. According to paragraph 8 of the article, participants must not interrupt, comment on or make remarks about individuals speaking at a court session. These obligations are also applicable to judges.

Per Article 8 of the Code of Ethical Conduct for Judges, a judge must treat all persons participating in the proceedings equally. A judge must not give preference to any of the participants in the proceedings over another. According to Article 9, a judge must demonstrate high judicial culture and behave with decency and courtesy towards each of the participants in the proceedings, require all participants in the proceedings to treat each other and the court with respect, and punish those showing open disrespect for the court.

Similar obligations of judges are also stipulated in regional and international instruments. In accordance with paragraph 2 of the United Nations “Basic Principles on the Independence of the Judiciary”, judicial authorities shall decide cases impartially, on the basis of the facts and in accordance with the law, without restriction, undue influence, inducement, pressure, threat or interference, whether direct or indirect, by any person or for any reason.

The UN Bangalore Principles of Judicial Conduct also indicate ethical conduct as one of the fundamental principles of judicial activity. According to the Principles, adherence to and demonstration of ethical norms are an integral part of the activities of a judge. Paragraph 4.1 of the Principles states that a judge shall observe ethical norms without allowing any instances of incivility in the performance of any acts related to his or her duties. In addition, according to paragraph 4.3, a judge shall avoid situations in his or her personal relations with individual lawyers that may give rise to a reasonable suspicion or appearance of favoritism or bias.

According to Article 6-1 of the Universal Charter of the International Association of Judges (hereinafter referred to as the IAJ), 67th General Assembly of which was recently held in Baku, judges should be guided by ethical principles in all cases. Such principles should also guide judges in their professional duties and conduct and should form part of their training. These principles should be expressed in writing in order to enhance public confidence in judges and the judicial system. Judges should play a leading role in the formulation of such ethical principles.

According to paragraph 18.1 of the Magna Carta of Judges of the Consultative Council of European Judges (Fundamental Principles), an organ of the Council of Europe (Magna Carta or the Great Charter of Freedoms was signed between King John of England and his barons on 15 June 1215 and contributed to the development of human rights - ed.), judges must be guided in their actions by deontological (professional ethics) principles, in contrast to disciplinary rules. They must be developed by the judges themselves and should be included in their training.

The rules of ethical conduct and courtesy exclude interrupting or raising one's voice in a communication between two persons. In this context, there is no need to extensively analyze the violation of the rules of ethical conduct in the treatment shown by Judge Telman Huseynov to attorney Rovshana Rahimli. The importance of the rules of ethical conduct is related to the objectivity and impartiality of the judiciary. Such manifestations in the rules of conduct casts the shadow on the lawful administration of the justice. This idea, inspired by the case of the European Court of Human Rights (ECtHR), De Cubber v. Belgium (§26) and Article 6-2 of the Universal Charter of the IAJ, can be summarized as follows: justice must not only be done: it must also be seen to be done 

The content shared by Rahimli in his social media status also highlights the real state of the legal profession and attorneys in Azerbaijan. In particular, the judge's raising his voice at the attorney and stating that he will file a complaint with the Bar Association is intended to intimidate and threaten the attorney with the professional association she represents, rather than deterring her from a possible violation of the law.

The key reason for the effectiveness of this threat is that until now, the Bar Association has acted from the position of the opposing side, not its representative, in conflicts between judges and attorneys or between attorneys and state institutions.

However, in accordance with Article 1 of the Law “On Attorneys and Advocacy”, one of the foundations of a lawyer's activity is the non-interference and pressure on the professional activities of attorneys and their associations by the prosecutor's office, court, other state bodies, public associations, any enterprise, institution, organization and official. According to the Charter of the Bar Association, which is an independent institution aimed at the self-administration of attorneys, one of the main rights and duties of the Association is the protection of the rights and interests of its members.

One of the steps that the Bar Association could take in this situation, in accordance with the requirements of the referenced documents, could have been to lodge a complaint to the Judicial-Legal Council, which, according to the legislation, regulates the activities of judges. Via legislation, in case of violation of judicial ethics, the Council has the right to initiate disciplinary proceedings against the judge.

Nonetheless, there is currently no publicly available statement on the issue from either the Bar Association or the Judicial-Legal Council. Even though the Bar Association and state authorities have taken steps to promote ethical relations between lawyers and judges, unethical attitudes towards lawyers is routinely observed. In general, it is possible to notice that the Bar Association regularly takes sides with state institutions in conflicts, especially in protecting the rights and interests of human rights attorneys.

As an instance of the solidarity of attorneys and their professional association, it is useful to consider a recent incident in Armenia. Attorney Alexander Kochubayev was detained on the evening of October 16 due to a status he posted on the social network “Facebook”. The reason for his detention was given as the content of the status he shared defaming the honor and dignity of judges, prosecutors, and investigators. Followingly, the Armenian Bar Association and its chairman issued a statement criticizing Kochubayev’s criminal prosecution. In a similar situation in Azerbaijan, the Bar Association did not react to the detention of lawyer Fariz Namazli by the State Security Service.

At large, the Bar Association seems more eager to initiate disciplinary proceedings against attorneys based on complaints received from state authorities and then revoke their professional licenses, which is incompatible with and completely contradicts the Bar Association's obligations to its members as a professional association.

As highlighted above, failure to observe ethical rules by a judge may undermine the impartiality and objectivity of the trial and lead to a violation of the rights of the defense. Article 6 of the European Convention on Human Rights protects the right to a fair trial. The ECtHR in Deli v. the Republic of Moldova found that unethical conduct by a judge towards the defense counsel of an accused person constituted a violation of Article 6(1) of the Convention. The Court recalled that in democratic societies it is of fundamental importance that the courts should, above all, inspire public confidence in the administration of justice (§35). The Court emphasised in Grieves v. the United Kingdom that domestic courts must take into account both subjective and objective grounds in order to eliminate bias. That is, the judge must both refrain from his own personal views and interests and provide sufficient guarantees to prevent bias (§69).

“Tribunat” concludes that the unethical behavior of the judge of the Baku Grave Crimes Court Telman Huseynov towards the attorney Rovshana Rahimli is a violation of the obligations stipulated by domestic and international legislation. Compliance with ethical norms, objectivity and impartiality of the judge, in a cause-and-effect relationship, constitute the basis of the independence of judicial proceedings. Such a violation by the speaker of the relevant court is generally unthinkable. The neglect and indifference of the Bar Association to this issue is a manifestation of another systematic problem in protecting the interests of attorney. Resultantly, such unethical behavior can undermine the independence of the court and result in court decisions that do not comply with the principle of justice.