Disbarrement of a lawyer by a bar association because he criticized a public judge for tarnishing the reputation of the judiciary. Violation of freedom of expression and privacy.

JUDGMENT

Bagirov v. Azerbaijan  25.06.2020 (no. 81024/12 and 28198/15)

see here 

SUMMARY

Disbarrement of a lawyer by a Bar Association. Lawyer’s confidentiality duty. Freedom of expression and the right to privacy.

The applicant, a lawyer by profession, disclosed the cause of death of his client’s son. He was suspended from practising law for one year, for violating professional secrecy.

He was also irrevocably expelled from the bar association because he publicly accused a judge of “casting a shadow over our state” and “tarnishing the reputation of the judiciary.”

The domestic courts rejected his request for revocation of the removal with an irrevocable decision.

The ECtHR found that the applicant had been punished by a disciplinary sanction without violating the duty of confidentiality, because the information he gave publicly was not related to his professional activity, but to the circumstances of a person’s death. Therefore, the sentence imposed on him was not in accordance with the law.

Respectively, regarding the sentence of deletion due to his statements about the Judge, the ECtHR ruled that the sanction imposed on him was disproportionate to the act he had committed. Violation of freedom of expression for both sentences was found (Article 10 of the ECHR).

It subsequently ruled that the applicant’s privacy had been violated in accordance with Article 8 of the Convention because the disciplinary sanction of suspension had not been in accordance with the law, and that the penalty of irrevocable removal should be imposed for more serious reasons.

The ECtHR ruled that the State Party under Article 46 of the ECHR should reinstate the applicant before his removal and awarded him the sum of EUR 18,000 for non-pecuniary damage.

PROVISIONS

Article 8

Article 10

Article 46

PRINCIPAL FACTS

The applicant, Khalid Zakir oglu Bagirov, is an Azerbaijani national who was born in 1976 and lives in
Baku. He was a lawyer and member of the Azerbaijani Bar Association (“the ABA”).

The case concerned his complaint that he had been suspended from practising law for one year,
then disbarred because of statements he had made about police brutality and the functioning of the
judicial system in the country.
In February 2011 Mr Bagirov attended a meeting with other lawyers to discuss problems
encountered by the legal profession in Azerbaijan when he commented on police brutality and the
recent death in custody of an individual, E.A., whose mother subsequently became his client. His
comments were reported in the press.

At the request of the head of the Baku City Chief Police Department, the ABA instituted disciplinary
proceedings against the applicant for defamation of the police. In August 2011 the Presidium of the
ABA suspended the applicant from practising law for one year because he had breached lawyer
confidentiality.

He challenged this decision before the courts, arguing that he had not disclosed any confidential
information as E.A.’s mother had already given a press conference alleging that the police had
tortured and killed her son before the February meeting and before she had become his client. The
courts did not directly address his arguments, reiterating the Presidium’s findings of a breach of
confidentiality.

In 2014, further disciplinary proceedings were instituted against him for remarks that he had made
while representing an opposition politician, Ilgar Eldar oglu Mammadov, at his criminal trial (see the
case of Ilgar Mammadov v. Azerbaijan (No. 2), application no. 919/15). The Presidium referred the
case to the domestic courts, which in July 2015 ordered the applicant’s disbarment. The first-instance court found in particular that his remarks about the functioning of the judicial system and
about one judge in particular had “cast a shadow over our State” and “tarnished the reputation of
the judiciary”. The first-instance judgment was upheld by the Baku Court of Appeal in September
2015 and by the Supreme Court in January 2016.

Relying in particular on Article 10 (freedom of expression) and Article 8 (right to respect for private
and family life) of the European Convention on Human Eights, Mr Bagirov alleged that the
disciplinary sanctions had breached his right to freedom of expression and respect for private life.

THE DECISION OF THE COURT…

ARTICLE 10

As regards the applicant’s suspension from the practice of law

The expression “prescribed by law” in the second paragraph of Article 10 requires not only that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects. In this regard the Court reiterates that a norm cannot be regarded as a “law” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he or she must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Whilst certainty is desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague, and whose interpretation and application are questions of practice.

The Court observes that Article 22 (I) of the Law governs disciplinary responsibility of lawyers, listing the cases (breach of the provisions of the Law and other legislative acts, the Statute on the rules of conduct for lawyers, and the norms of lawyer ethics) in which a lawyer is subjected to disciplinary responsibility.

It appears from the Presidium’s decision of 24 August 2011 that in the present case the applicant was subjected to disciplinary responsibility on the ground of a breach of the provisions of the Law, namely a breach of lawyer confidentiality.

As regards a breach of lawyer confidentiality, the Court observes that in the present case the applicant was not subjected to disciplinary responsibility for breaching the secrecy of the judicial investigation by commenting on or disclosing any document relating to the investigation, expressed position of the mother of an alleged victim as regards the circumstances of her son’s death, in the absence of any complaint from the alleged victim’s mother about the applicant’s action. In that connection, the Court notes that pursuant to Article 17 (I) of the Law information obtained by a lawyer, as well as advice and information given by a lawyer in furtherance of his or her professional activity, fall under the head of lawyer confidentiality. It does not appear from the wording of Article 17 (I) that the use of information available in the public domain falls under lawyer confidentiality. On the contrary, the wording of the above-mentioned provisions clearly indicates that information falling under lawyer confidentiality must have been obtained by a lawyer in the furtherance of his or her professional activity. In the present case, it is clear from the documents in the case file, and is not disputed by the parties, that the allegation of E.A.’s death in police custody as a result of torture was made public by R.R. on 25 January 2011, and that the applicant only repeated that allegation on 28 February 2011. In any event, the applicant could not have obtained the information in question in connection with carrying out his professional activity, because he was instructed to represent R.R. in the proceedings relating to E.A.’s death only later, on 7 March 2011.

The Court reiterates that it is not its task to substitute its own interpretation for that of the national authorities, and notably the courts, as it is primarily for the latter to interpret and apply domestic law. However, in the present case the domestic courts, while confirming the Presidium’s decision that the applicant had breached lawyer confidentiality, failed to address properly the applicant’s argument that he had not disclosed any information which could be covered by it. In particular, their decisions disregarded the fact that the wording of Article 17 (I) of the Law clearly indicated that information falling under lawyer confidentiality must be obtained by a lawyer in the furtherance of his professional activity and that the applicant was not E.A.’s mother’s lawyer on 28 February 2011 when he made the impugned statement.

In these circumstances the Court cannot but conclude that the interference in question was not “prescribed by law” within the meaning of Article 10 § 2 of the Convention, and does not consider it necessary to examine for the purposes of the present case the second argument of the applicant, namely that the Law did not comply with the requirements of the quality of law.

Having reached that conclusion, the Court does not need to satisfy itself that the other requirements of Article 10 § 2 (in respect of a “legitimate aim” and the “necessity of the interference”) have been complied with.

There has accordingly been a violation of Article 10 of the Convention as regards the applicant’s suspension from the practice of law for a period of one year.

As regards the applicant’s disbarment

The Court observes that in the present case the impugned statement was not only a general criticism of the functioning of the judicial system in Azerbaijan, but also directly targeted a judge of the first-instance court who had already sat as a judge in the examination of Mr Ilgar Mammadov’s case. The Court accepts that the remarks, accusing a judge of lack of capacity to be a judge, represented a lack of respect for the judge and were capable of being offensive .

In that connection, the Court cannot accept the Government’s reliance on the existence of the previous disciplinary proceedings against the applicant for justifying the imposition of the sanction of disbarment on him, as the applicant’s suspension from the practice of law for a period of one year was not prescribed by law and the Court has already found a breach of his right to freedom of expression on that account.

  1. 1.  In the light of the foregoing, the Court considers that the reasons given by the domestic courts in support of the applicant’s disbarment were not relevant and sufficient, and that the sanction imposed on the applicant was disproportionate to the legitimate aim pursued.
  2. 2.  There has accordingly been a violation of Article 10 of the Convention as regards the applicant’s disbarment.

ARTICLE 8

The Court notes that it has already concluded that the interference with the applicant’s right to freedom of expression as a result of his suspension from the practice of law was not “prescribed by law” within the meaning of Article 10 § 2 of the Convention (see paragraph 61 above). Having regard to this conclusion, the Court considers that, similarly, the interference with the applicant’s right to respect for his private life as a result of his suspension from the practice of law cannot be considered to be in accordance with the law within the meaning of paragraph 2 of Article 8. There has accordingly been a violation of Article 8 of the Convention on account of the applicant’s suspension from the practice of law for a period of one year.

In this respect, the Court observes that in a series of cases it has noted a pattern of arbitrary arrest, detention or other measures taken in respect of government critics, civil society activists and human rights. Against this background, the Court underlines that, notwithstanding the duties, in particular, with respect to their conduct, with which all lawyers must comply, the alleged need in a democratic society for a sanction of disbarment of a lawyer in circumstances such as this would need to be supported by particularly weighty reasons.

There has accordingly been a violation of Article 8 of the Convention on account of the applicant’s disbarment.

ARTICLE 46

The Court reiterates that, by virtue of Article 46 of the Convention, the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, with execution being supervised by the Committee of Ministers of the Council of Europe.

Those measures should be feasible, timely, adequate and sufficient to ensure the maximum possible reparation for the violation found by the Court, and they should put the applicant, as far as possible, in the position in which he had been before his disbarmen


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