December 9 marked the first anniversary of the adoption of what is commonly referred to as the UN Declaration on Human Rights Defenders. The Declaration, which for the first time identifies and makes universal the rights and prerogatives of human rights defenders, is flawed in some areas, but is an important vindication of the importance of human rights work.

The Azerbaijani government’s commitment to that Declaration is being tested this month as its parliament prepares to rubber-stamp a retrograde draft law on the legal profession. The draft law will reconfirm lawyers as being under the effective control of Azerbaijan’s ruling elite -- little more than "musicians at a funeral," according to a sardonic joke cited in a recent report by the International League for Human Rights. Lawyers are necessary as a formality, but can do nothing to help you. Without an independent judiciary and independent legal profession, human rights and the rule of law are necessarily compromised.

Today, as in Soviet times, the Azerbaijani government maintains de facto control over lawyers (barristers and solicitors) through the nominally independent, but functionally monopolistic bar association, the Collegium of Lawyers. Azerbaijan has only about 500 lawyers (advokaty) for a population of some 7.5 million, and virtually all are members of the Collegium. About 10 independent lawyers associations have been formed in recent year, as lawyers have begun demanding greater autonomy. Some, to be sure, are government controlled, created for effect. But for the majority, government harassment is the result, as well as the catalyst for their efforts.

The government plays with the independent lawyer associations as a cat does a mouse. It bats association applicants back and forth between, on the one hand, the Ministry of Justice, which demands onerous paperwork to process applications only to reject them arbitrarily, and, on the other hand, the courts, which turn down all appeals pro forma. The courts rely on various pretexts for the sake of appearances.

The head of one such independent group reports that the judge adjudicating his appeal listened to all arguments, then, before ruling, ordered the courtroom cleared. He then told the petitioner in private that his appeal should be upheld on the merits, but that he would reject it no matter what for fear of losing his job. Similar scenes of political corruption in the Azerbaijani legal system reportedly occur frequently. In addition, this year, Aslan Ismailov, one of the most outspoken proponents of an independent bar association, was arbitrarily expelled from the Collegium; his appeal was rejected recently, exhausting remaining legal remedies, and sending a warning to others inclined to challenge the status quo.

Perhaps the best way to promote the independence of lawyers from the political establishment in Azerbaijan is to pass a new law on the legal profession (advokatura) that enshrines protections in accordance with international standards. The Council of Europe submitted detailed recommendations to the Azerbaijani government concerning amending the existing draft law. The Council made the adoption of a new law a condition for accession. In principle, the Council of Europe’s review should virtually guarantee that lawyers in Azerbaijan are finally granted a legal basis for practicing freely and effectively.

But there is a fatal flaw in the system -- the critique is confidential. The Council of Europe maintains public silence about its concerns, which reportedly are numerous and some serious. The Azerbaijani government takes advantage of the silence to generate false support for a draft law that, in its current form, will preserve essentially the same government control over the profession that existed in the past -- to the detriment of all legally based human rights advocacy. The false apprehension, heard from both diplomatic and legislative circles, is that because the Council of Europe reviewed the draft, it must be acceptable. Incomprehensibly, the Council of Europe recommends that draft laws be amended in accordance with its recommendations, but does not demand it. It does not even ensure that its carefully prepared comments are made available to all of the legislators who will be responsible for voting on the bill.

The international community can support human rights protections in Azerbaijan by demanding the fair treatment of individuals and groups (notably the Association of Lawyers of Azerbaijan) that advocate greater independence for lawyers. It must ensure that the Azerbaijani government adopts laws that adequately protect human rights. (Just because a law is new does not necessarily mean it is improved.) Demands for specific amendments to the draft law on the legal profession must be made public – and swiftly, before it is too late to make a difference.

Editor’s Note: Erika Dailey is an editorial consultant to the Central Eurasia Project, covering human rights-related issues in the Transcaucasus and Central Asia. Between 1992 and 1998, Ms. Dailey worked as a researcher and human rights advocate for Human Rights Watch, based in New York and Moscow, covering principally the Caucasus, Central Asia, and the Russian Federation. Since 1998, Dailey has worked as a human rights advocate for Human Rights Watch, the International League for Human Rights, and the Lawyers Committee for Human Rights. She has a BA in Slavic Studies from Princeton (1986) and an MA in Central Asian Studies from Columbia (1991). She has lived in and traveled to the Caucasus and Central Asia regularly since 1987.

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Posted February 10, 2000 ©Eurasianet
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