The Analysis of violation of law during the lawyer Yalchin Imanov’s judicial proceedings

Ganja Appeal Court, Administrative-Economic College

Criminal case № 2-1(104)-281/2018

April 17, 2018

Rakhman Muradov
Adil Mamedov, Chingiz Mamedov

Claimant: The Presidium of the Bar Association of the Azerbaijan Republic
Defendant: Yalchin Imanov

Since 2007 Yalchin Imanov was a member of Bar Association of the Azerbaijan Republic and as the lawyer defended many activists of political parties, civil society, journalists, as well as believers who strongly criticized the government.

In August 2017, one of Imanov's client’s, political prisoner Abbas Huseynov who is passing in the case of "Nardaran-1" and sentenced by the court to 20 years of imprisonment, was severely tortured in close-type prison Gobustan. The lawyer gave testified injures on his body and officially applied to the court with complaints and requests for investigation of the facts of tortures. At the same time, the lawyer reported about this in the media. The press highlighted everything he said, because the trials of so-called "Nardaran cases" (they were four) generating great public interest. The lawyer described in detail the methods of tortures and also has told about the appeals to the court which sent in connection with the facts of tortures.

On August 6, 2017 in protest against the torture relatives of political prisoners gathered near the building of Gobustan prison and demanded a meeting with the chief of prison colonel Aftandil Agayev. However, during this period A. Agayev was on vacation, and the acting was colonel of justice Ogtay Mammadov. After a long period of waiting the relatives of prisoners met with O. Mamedov and expressed his concern. Shortly thereafter, three of the relatives came to the building of Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic, where also demanded a meeting with the leadership of structure.

However, O. Mamedov failed a complaint to the Disciplinary Commission of Bar Association that information about tortures, which distributed the lawyer are untrue. And these actions of the lawyer are aimed "to destabilization of a situation in the country and to incite his clients to dissemination of false information". O. Mamedov also accused the lawyer that he was an initiator of the protest action of relatives of prisoners. In his statement, he asked to take action against "objectionable" lawyer.

Also the Head of Penitentiary Service of the Ministry of Justice, major-general of justice Jeyhun Hasanov requested to Bar Association and had called to punish lawyer Yalchin Imanov, accusing him "of violating of public stability".

On November 20, 2017 the Disciplinary Commission of Bar Association decided on suspension of legal activity of Yalchin Imanov.

The presidium of Bar Association appealed to the court with statement of claim about an exception of the lawyer Y. Imanov from the Bar. In turn Y. Imanov filed a counterclaim against revocation of the Bar Association’s decision to suspend of his activity. Yalchin Imanov also requested the court with the petition that the Bar Association filed is submitted with violation of the law.

According to the decision of the Ganja Administrative and Economic Court under the number 2-1 (83)-339/2017 from February 21, 2018 Yalchin Imanov's request had not been granted. The lawyer did not agree with this decision and appeal to the court with a request for revocation of this decision.

But the Ganja Appeal Court had ruled the decision under the number 2-1 (104)-281/2018 from April 17, 2018 on rejecting of the appeal and upheld the decision of the court of first instance.

Commentary by an expert lawyer:

The court decision is unlawful and groundless. The appellate court hasn't expressed its attitude to the arguments of the complaint of Yalchin Imanov. The court called these arguments "the groundless and formal assumptions". It should be noted that in connection with such cases there is no unified court practice. A few such disputes connected with an exception of members of Bar Association have been considered by the courts of general jurisdiction, that is district courts, and the administrative courts rejected consideration.

One of examples can be provided the decision of the Baku Administrative and Economic Court No. 1 from January 22, 2018 concerning the exclusion from Bar Association the lawyer Fakhraddin Mekhdiyev. In that decision stated that the Bar isn't an administrative body and the claim was declared inadmissible, because this is an issue of the general orientation and therefore has to be considered by court of general jurisdiction.

In accordance with article 22 (VIII) of the Law of the Azerbaijan Republic "Act on Lawyers and Advocacy" the Bar Association could not stop an activity of the lawyer on their own. For this purpose it is necessary to appeal to court. This procedure says about equality of both parties.

If the Bar Association can't independently stop activity of the lawyer, this means that the relationship between the Board and the lawyer are of a relations of a personal nature, which the court decide.

In paragraph 4 of Order No. 4 of the Plenum of the Supreme Court of the Azerbaijan Republic "On the judicial jurisdiction of the disputes arising from the administrative and civil-legal relations" stated that in addressing such disputes must be taken into account whether the administrative body of the party to the dispute.

According to the article 2.0.1. the Law of the Azerbaijan Republic "Act on Administrative Procedure", the administrative authorities are relevant body of executive branch of the Azerbaijan Republic, their local and other structures, municipalities, as well as any natural or legal person having authority to make administrative act.

Article 2.0.2. of the Law states: "An administrative act - a decision, the order or the imperious measure of other character adopted by the administrative body in order to resolve or the solution of a certain (concrete) question in the overall legal (public) sphere and creating specific legal consequences for the physical or legal person (s) which it is addressed".

In the article 2.0.6 of the Law states that "administrative proceeding is acceptance, performance, change or cancellation of an administrative act on the basis of the appeal of physical or legal persons or on its own initiative of the administrative authorities, as well as administrative complaints, carried out by the relevant administrative bodies within the procedural rules established by the present Law."

In the article 3.1. of the Law states: "The provisions of this Law shall apply to the activities of bodies defined (classified) by the legislation of the Azerbaijan Republic as administrative bodies".

In the resolution of the Cabinet of Ministers of the Azerbaijan Republic No. 136 from August 28, 2007 in which the alleged classification of administrative bodies, the Bar Association does not.

In the article 9 (I) of the Law "On advocates and advocacy" indicate that the Bar Association is a non-governmental structure.

Also, according to the article 2 of the Administrative and Procedural Code of the Azerbaijan Republic are considered administratively following disputes:

· 2.2.1. action on disputing (liquidation or alteration) the administrative act adopted
by administrative body with regard to a person's rights and responsibilities;
· 2.2.2. actions on imposition of relevant liability on administrative body concerning the adoption of an administrative act or petitions on defence against the inactivity of administrative bodies (action on compulsion);
· 2.2.3. action on committing certain actions not related to adoption of an administrative act by administrative body (action on implementation of commitment);
· 2.2.4. иски о защите от незаконного вмешательства, не связанного с вынесением административного акта административным органом и непосредственно нарушающего права и свободы лица (иски о воздержании от совершения определенных действий);
· 2.2.4. actions on illegal intervention by administrative body, that is not related to adoption of an administrative act or directly violates a person's rights and freedoms (action on refraining from doing certain actions);
· 2.2.5. actions on existence or non-existence of administrative legal relationship, or consideration of an administrative act as invalid (actions on identification or recognition);
· 2.2.6. actions on verifying the legality of acts of normative nature, with exception of the issues under competence of the Constitutional Court of the Republic of Azerbaijan (action on legality);
· 2.2.7. actions on reimbursement for property claims related to settlement of administrative disputes, as well as for damages caused by illegal decisions (administrative acts) or actions (inaction) of administrative bodies;
· 2.2.8. counter-actions by municipalities and administrative supervisory bodies against the actions of each other.

As shown from the paragraphs of the article mentioned, the dispute between the Bar Association and lawyer can not be classified to any of the listed points.

Even if we consider the claim of the Bar Association as an administrative, it at least must be filed in the defendant’s place of residence, i.e. in Sumgayit Administrative Court, but not in Ganja in any way.

Such claims are considered by court at the location of the administrative body which has adopted the contested administrative act. If the administrative act imposed by administrative body whose powers cover the territory under the jurisdiction of more than one court, lawsuits against these administrative acts are considered by court at the place of residence or location of the person, the right (legally protected interests) is affected.

Thus, if to consider the claim administrative, it must have been to be submitted either on the Bar Association location, i.e. in Baku Administrative and Economic Court No. 1, or at the place of residence of the defendant, namely to the Sumgayit Administrative Court.

As shown from the above, the Bar Association incorrectly filed a lawsuit, violating the rules governing jurisdiction.

Ganja Appeal Court rejected the complaint of the lawyer Yalchin Imanov