New amendments to the Law on Advocacy: Strengthening the independence of the advocacy institution or its end?

Analysis

Since October 10, the parliament has been discussing the draft law, which includes amendments to the Law “On Advocates and Advocacy” and some codes. On October 31, the draft was adopted in the Milli Majlis in its 3rd and final reading. This means that after some time, the amendments will come into force after being signed by the president.

“Tribunat” has analyzed the impact of the amendments to the legislation on advocacy.

Initially, the amendments were not met with unanimous approval. While the Milli Majlis stated that the draft would improve the legislation, critics said that the changes would weaken the institution of advocacy.

When looking at the amendments to the legislation, it is possible to notice that, despite the large number of articles proposed for amendment, some of them are technical amendments (for example, replacing the word "legislation" with the word “normative legal acts” or changing the name of the article without changing its meaning).

The important changes covered by the draft law can be listed as follows:      

1. Advocates will be able to represent themselves independently in the cassation court;

2. For the first time, the Law reflects the fact that advocates can also provide services to state institutions;

3. The 3-year practice requirement for those who want to become advocates is reduced to 1 year, non-citizens will not be able to work as advocates, those who have worked in the field of law in scientific and educational institutions for 1 year, and persons who have been awarded honorary titles in the field of law will also be able to become advocates, and the procedure for former judges and advocates to become advocates will be simplified.

4. The rules for the illegal use of the name of advocate are tightened - the use of the word “advocate” and its translation into other languages ​​in relation to oneself and the organization will be prohibited;

5. Information on assistant to the advocates will also be added to the register;

6. Advocates will be assigned mandatory training events - these events will be determined by the Bar Association, and failure to participate will result in termination of legal practice;

7. The powers of the Bar Association are being increased - from now on, the institution will be able to exempt members from paying membership fees, establish regional and training centers;

8. The Chairman of the Presidium of the Bar Association will be able to be elected more than twice;

9. Incentive events for advocates will be implemented;

10.  Decisions of the Presidium will be made by open voting;

11.  The Presidium will have the authority to monitor the bodies of the Bar Association and advocates;

12.  The concept of an advocate's service card, advocate's warrant and request is reflected in the law;

13.  The boundaries of advocate's secrecy are determined;

14.  The terms of application of disciplinary sanctions are extended;

15.  The list of disciplinary sanctions is expanded: a fine of 10 times the membership fee and expulsion from the Bar Association are added;

16.  A court decision will not be required to expel an advocate from the Bar;

17.  The list of persons who cannot be an advocate's assistant is being expanded, if currently only persons who are not citizens of the Republic of Azerbaijan could not be an advocate's assistant, now also persons who cannot be an advocate will not be able to act as an advocate's assistant;

18.  The service cards of advocates whose activities have been temporarily suspended will be revoked;

19.  The number of members of the Advocates' Qualification Commission is being increased from 11 to 13; if previously the number of advocate members was 5, now it will be 7;

20.  A new obligation is imposed on advocates; from now on, advocates “must comply with the rules established by the bodies of the Bar Association in accordance with this Law and implement the decisions adopted by those bodies.”

After listing the significant changes, it is necessary to conditionally group them into 2 directions and analyze their potential impacts:

·       Changes that strengthen the professionalism and independence of the legal institution;

·       Changes that threaten the professionalism and independence of the legal institution.

Positive changes

Positive changes include the possibility for advocates to represent themselves in the cassation court, expanding the list of persons who can become advocates, tightening the rules for the illegal use of the advocate's name, ensuring the transparency of information about advocate assistants, and expanding the boundaries of advocate secrecy.

The Code of Civil Procedure and the Code of Criminal Procedure establish the rules for the mandatory participation of advocates in the cassation instance court. The purpose of such an imperative norm is to ensure access to quality legal assistance for persons applying to the cassation instance. However, given the independence of the parties in representing themselves, it seemed unnecessary to apply such an imperative norm to advocates who are specialists in legal assistance. The new amendment eliminates this inconsistency.

Another important issue is the definition of the rules for the illegal use of the name of an advocate. If the current version prohibited the illegal use of the name of an advocate by non-advocates, the new version sanctions the use of the word “advocate” and its translation into other languages. Considering the prevalence of fraud by non-advocates, this change can also be assessed positively. Preventing such cases also requires transparency from the legal institution. It is also possible to evaluate the placement of information on legal assistants in the register from this perspective.

Unlike the current version, the new amendment expands the clear boundaries of attorney-at-law secrets, from now on, “information received in connection with the performance of professional duties, advice given, legal documents prepared, opinions and references, as well as the fact of applying for legal aid, the text of the legal aid agreement concluded and the fact of concluding the agreement, the essence of the application” will be considered attorney-at-law secrets. The facts of violation of attorney-at-law secrets are cases shared by both advocates and the Bar Association.

Among the listed, perhaps the most significant change is the renewal of the basic requirement for persons who may be eligible for the bar exam. The new changes reduce the length of service in the legal profession from three years to one year. In addition, persons who have already worked in scientific and educational institutions for at least one year in the field of law will also be able to apply for the bar. One of the important problems of the local bar institute for the current period continues to be the issue of access to legal aid for individuals. According to data from the European Commission on the Efficiency of the Justice, Azerbaijan has the lowest number of advocates per capita among the countries included in the European Committee; while the average figure is 180 per 100,000 inhabitants, this figure in Azerbaijan is 23. Although the relaxation of the time limit has long been recommended as one of the solutions to the shortage problem, this innovation is only now being implemented. However, given the noticeable slowdown in average indicators, it is questionable how effective the reduction of the time limit will be.

Problematic aspects

While the new amendments contain some positive aspects, there are also enough changes in the text that could potentially threaten the professionalism and independence of the legal profession.

Some changes may further exacerbate the existing institutional problems of the legal profession. Examples of such changes include the elimination of the two-term limit for the chairman of the Presidium (PR), the adoption of PR decisions by open voting, the granting of the PR the authority to monitor advocates and the bodies of the Bar, the extension of the periods for the application of disciplinary sanctions, the expansion of the list of disciplinary sanctions, the possibility of expelling an advocate from the Bar without a court decision, the addition of an advocate's warrant to the legislation, the protection of the interests of state bodies by advocates, etc.

These points stem not only from the ambiguous nature of the listed changes, but also from the institutional problems of the Bar. Since the establishment in 2004, and the case of Hajibeyli and Aliyev v. Azerbaijan, which recognized the fact that human rights defenders Annaghi Hajibeyli and Intigam Aliyev were not admitted to the Bar due to their critical opinions, the problem that local and international actors have emphasized to this day is the institutional weakness of the Bar and its lack of desired independence. It can be argued that such changes could exacerbate the current institutional weakness of the Bar, leading to a disruption of the balance of power within the organization and the consolidation of power.

The most discussed changes in this direction are the elimination of the two-term limit for the chairman of the PR. The current chairman, Anar Bagirov, was first elected to this position in 2017. According to the current legislation, his powers end in 2027, and after that he would not be able to nominate himself for the chairmanship. Since A. Bagirov was chairman, the media and advocates have accused him of pressure on independent advocates, restriction of advocates' freedoms, favoritism in favor of state bodies, and despotic tactics. The adoption of such a change to the legislation shortly before the end of his term raises reasonable doubts about a conflict of interest. Although there are advocates of this practice, according to the World Bank’s analysis of the regulation of advocates in leading European countries, it is common practice for the existence of a term limit for the appointment of persons holding the position of chairperson. This approach, according to the review of the Special Rapporteur on the independence of advocates and judges, also stems from the principle of democracy and pluralism in the governance of Bar Associations as trade unions. It can also be noted that the removal of the term limit coincided with the abolition of the term limit for the appointment of the head of state in the 2009 Constitutional referendum.

The list of changes that could negatively affect the institutional status of the Bar Association includes increasing the number of advocate members in the Bar Association's Qualification Commission and strengthening the Bar Association's monopoly on the legal profession. Although at first glance the increase in advocate members in the aforementioned institution may seem like a positive change, given the consolidation of power and authoritarian management tendencies in the Bar Association, arbitrary obstacles to individuals seeking to practice law may increase.

Another point is the clarification of the status of the Bar Association as a non-commercial legal entity in the legislation beyond any doubt. Since its establishment, the Bar has had a monopoly on legal representation in the country, accompanied by the criticized abolition of the institution of representation. This monopoly has been criticized by local and international organizations, as well as in the aforementioned Hajibeyli and Aliyev case. A situation that will create a legal conflict arises, although according to the Law “On Non-Governmental Organizations (Public Associations and Foundations)” membership in a non-commercial organization is not mandatory, in order to perform the functions of legal representation, an advocate must necessarily be a member of the Bar, which is a non-commercial organization. Instead of eliminating this conflict and the criticized monopoly from the legislation, the changes (determining that the Bar Association operates as a single institution that includes all advocates) further reinforce the status quo.

The list of changes affecting the consolidation of power within the Bar includes the adoption of decisions of the PR by open voting, and the granting of the PR the authority to monitor the advocates and bodies of the College. According to the legislation, the PR exercises wide-ranging powers as the executive body of the Bar. The implementation of open voting within the PR could endanger the collegial nature of the body and turn it into a single-headed body. The Venice Commission's Code of Good Practice in Electoral Matters recommend that elections be held not in an open manner, but according to the principle of secret ballot. According to the Commission, secret ballot is aimed at protecting the freedom and individuality of voters.

As for monitoring, the legislation does not specify how monitoring will be conducted and what issues it will cover. Regional and international documents on the activities of advocates, such as the United Nations Basic Principles on the Role of Advocates, the Recommendations of the Committee of Ministers of the Council of Europe on the Independence of Advocates, and the Charter of Fundamental Principles of the Council of Bars and Law Societies of Europe, include the independence of advocates as a fundamental principle. The existence of gaps in the inclusion and regulation of the monitoring procedure in the legislation opens the door to the risk of interference with the independence of advocates.

Another change that will hinder the independence of advocates is the complication of the rules for establishing bar associations. According to the current legislation, the activities of an established body begin after the state registration of the body according to its organizational and legal form. According to the amendment, in addition to state registration, the established body must be established according to the rules established by the general meeting (conference) of the members of the Bar Association, and compliance with the rules is checked by the Bar Association's Presidium. Considering that the rules are not established and the decision that the Bar Association's Presidium can make is open to subjectivity, the establishment and activities of advocate offices may become complicated.

One of the steps that could potentially have the greatest impact on the independence of advocates is the replacement of the concept of “professional activity” in the legislation with the concept of “advocacy activity”. The negative essence of this change is that the activity of an advocate may be limited not by the fulfillment of rights arising from his profession, but by a contract aimed at defending a specific individual or legal entity. The tendency to such restrictions can be exemplified by the concept of “advocate request” added to the amendments; according to the amendment, an advocate may issue such a request in connection with “advocacy activity”. In the new wording, the activity of advocates is in danger of becoming more susceptible to formal representation and defense.

Another amendment concerns disciplinary sanctions. The most notable change in this regard is the abolition of the requirement for a court decision to expel an advocate from the Bar. Expulsion from the Bar is the most severe disciplinary sanction that can be imposed. As mentioned above, for many years, advocates have had to face the threat of expulsion from the Bar for various reasons. In accordance with the Opinion of the Venice Commission on the Slovak Republic, it is desirable for a court to have jurisdiction over the execution of such disciplinary sanctions, as the court acts as a guarantee against arbitrary decisions. Given the precedents of abuse of disciplinary sanctions and expulsions against human rights advocates, this alteration could lead to a dangerous practice.

Yet another problematic change is related to the Disciplinary Commission for Advocates. If in the current version the Commission's activities began with resolving issues “on disciplinary violations committed by advocates in connection with the performance of their professional duties”, now this activity will cover any complaints and appeals “filed against advocates”, which can be interpreted more broadly. This presumably implies that the Commission can now initiate disciplinary proceedings not specifically on the basis of professional violations, but on any complaint or appeal of any content received. Given the non-transparent and arbitrary approach of the Commission to disciplinary proceedings, this may pave the way to abuse.

The practice of disbarment in Azerbaijan has been consistently criticized by domestic and international human rights institutions. The recent judgment of the European Court of Human Rights in Imanov v. Azerbaijan confirms once again how widespread this problem is, especially against individuals practicing in politically sensitive cases. Cases of unjustified disbarment are currently recognized by the ECtHR’s enforcement mechanisms as the Namazov group, which include recommendations for improvement of the legislation. Even though these recommendations stipulate that the Government specify the broad application grounds for disciplinary sanctions, inform those subject to sanctions about disciplinary proceedings, and add issues to the legislation to ensure their participation, the amendments instead, add a novelty to the legislation that may lead to arbitrary decisions.

Changes in disciplinary sanctions of such character may have a chilling effect on the activities of advocates. One of them is a fine of 10-fold of the membership fee.

Currently, the membership fee is set at 50 manat for advocates in the regions, 40 manat for newly barred advocates in the first year of their activity, and 60 manat for advocates from Baku. It is implied that the fine imposed on advocates will be around 500-600 manat. On the other hand, the amendments will increase the investigation period for disciplinary proceedings from 1 month to 3 months, provide for the possibility of extending this period by an additional 3 months, and, taking into account the problems highlighted above with the disciplinary proceedings procedure, will potentially force lawyers to participate in opaque and slow proceedings instead of engaging in professional activities. All in all, it is possible to observe that disciplinary sanctions have become stricter in the amendments. The amendment removes the softer “reprimand” type of sanction from the currently valid wording and replaces it with a stricter “warning”, adds a previously non-existent type of fine, mentions the authority to suspend activities for more than three violations of the requirements of advocacy ethics, and reintroduces disbarment.

One of the problems that is constantly highlighted regarding the practice of law in Azerbaijan is the access to quality legal assistance. One of the main reasons for the emergence of such an obstacle is the high cost of services. The amendments, specifically, the addition of the concept of an order to the legislation, instead of solving, deepens the problem. Despite the fact that the Bar Association has existed for more than 20 years, the order is added to the legislation only through these amendments. Even though the concept of an order arises from the confirmation of the powers of representation, in practice there is also a power of attorney separately confirming such powers. Since 2016, the fees applied for order have led to an increase in the cost of legal services and a decrease in their accessibility for years; the order allows the Bar Association to increase the prices of legal services. Currently, the price of an advocate’s order varies between 325-350 manats, and given that the minimum wage in the country is 400 manats, it is logical that the price of the warrant affects the cost of advocacy services. The institutionalization of the concept of an advocate’s warrant also contradicts Article 61 of the Constitution, which establishes the right to receive free legal aid. Articles 20 of the Law “On Lawyers and Advocacy” and 67-1 of the Code of Civil Procedure regulate the list of persons entitled to receive free legal aid, and the Decision of the Cabinet of Ministers regulates the method of payment of such payments. The fee is calculated on an hourly basis for the services provided by the advocate, that is, the payment of the order is not included in these services. Resultantly, for “pro bono” legal aid intended for persons with limited means of payment, they should pay an amount close to the minimum wage.

Last but not the least, a point to be emphasized is the procedure for preparation and submission of amendments to the legislation. There is no information in open sources about any form of consultations with the participation of advocates during the preparation of this draft. The draft amendment to the legislation was submitted to the Milli Majlis on October 10, and in just 21 days it passed through three readings without any extensive discussion. Unlike 2018, there is also no information about whether the draft law was sent for review to the Special Rapporteur on the independence of independence of judges and lawyers or to the Venice Commission, which has repeatedly expressed its opinion on such legislative initiatives in other countries. Bearing in mind the fact of the connection between the activities of advocates and the rule of law, it would be reasonable for the new draft legislation to include domestic and international practice and embrace elements of participation and consultation to address shortcomings.

“Tribunat” concludes that even though there are some positive aspects in the new amendments to the Law “On Advocates and Advocacy”, in general, many of the alterations have the potential to undermine the independence and professionalism of the legal profession. Given the weak institutional foundations of advocacy in Azerbaijan, it is likely that many of the changes may exacerbate and deepen the problem instead of eliminating shortcomings. The changes may lead to the consolidation of power in the Bar Association, a decrease in the independence of advocates, a tightening of disciplinary measures, while the cost of legal services may remain stably high and the like.