Real Conflict of Interest or Illusory Ban on Quality Defense?

Analysis

The fact that lawyers in the criminal case labeled as “Toplum TV case” were not allowed to defend journalist Shahnaz Beylergizi, who was later arrested and then released under house arrest, has made this issue relevant once again. The journalist’s lawyer, Bakhtiyar Hajiyev, stated in an interview with local media at the time that Beylergizi’s criminal case was separated from the criminal case in the “Toplum TV case” on January 21. Despite this, the lawyers who defended the defendants (Akif Gurbanov, Alasgar Mammadli, Ruslan Izzetli and others) who were arrested in the first wave of prosecution in the “Toplum TV case” - in March 2024 - were also prevented from defending Shahnaz Beylergizi. 

“Tribunat” bearing in mind the information that has been periodically reported for many years regarding the existence of this ban and investigated its legality.

The Constitution of the Republic of Azerbaijan (Articles 60-61), the International Covenant on Civil and Political Rights (Article 14, Part 3), and the Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6, Part 3, Subparagraph c) provide for the right of everyone accused of committing a crime to a quality defense, the right to defend themselves in person or through a defense attorney of their own choice.

The Code of Criminal Procedure of Azerbaijan also stipulates that the accused must be guaranteed the right to quality legal assistance. This also comprises the right of the accused to independently choose a defense attorney (Article 91.5.7).

However, the Constitutional Court put forward in its Plenum Decision dated October 9, 2023 that the right of defense by an attorney of one's choice is not an absolute right. The Plenum Decision states that the right to choose a specific defense attorney may be restricted in the interests of justice, in order to provide prompt, fair, and high-quality judicial defense.

In Dvorski v. Croatia (20 October 2015), the European Court held that an unjustified and disproportionate interference with the right of an accused to communicate with and defend oneself with an attorney of own choice constituted a violation of the right to a fair trial (§§112-113). In that case, the authorities had not considered it appropriate to have an attorney present and had instead engaged an appointed defense attorney. The Court noted that a refusal to have an attorney of own choice could only be justified by serious necessity and in the interests of justice – which required a reasoned decision (§79).

The ban on Shahnaz Beylergizi being defended by the attorneys of other individuals arrested in relation to the “Toplum TV” case does not meet the criteria in the cited decisions of both the Constitutional Court and the European Court of Human Rights. In other words, grounds for the prompt, fair, and high-quality administration of justice are non-existent.

According to the Plenum Decision of the Constitutional Court dated May 20, 2011 “On the interpretation of some provisions of Article 92.12 of the Code of Criminal Procedure of the Republic of Azerbaijan”, “...the refusal of a defense attorney must be carried out “voluntarily on the suspect or accused’s own initiative”. The words that make up this expression are in mutual unity with each other. Hence, the initiative to refuse must in any case be put forward by the suspect or accused (dependent on will). In other words, any proposal to the suspect or accused to refuse a defense lawyer by the bodies conducting the criminal proceedings is inadmissible. Additionally, any influence (mental or physical) on the voluntariness of the decision of the suspect or accused is illegal”.

“Tribunat” concludes that there is no real conflict between the legitimate interests of the accused in the “Toplum TV case”. Simultaneously, there is no justification that Shahnaz Beylergizi could not be represented by the defense attorney of her choice in the criminal case she was accused of in order to ensure a quick, fair and high-quality trial. The right to refuse a defense attorney belongs to the accused, as does the right to choose a defense attorney, and it is contrary to legal principles for any executive body to make a decision on her behalf. Depriving a journalist of the defense attorney of her choice during the preliminary investigation period is a violation of her right to a fair trial, since as ECtHR promulgated in Imbrioscia v. Switzerland, the court stated that Article 6 of the Convention also includes pre-trial proceedings.