Judge versus lawyer. The unjustified assessment of an eyewitness testimony as unreliable because he was working for a lawyer and the judge’s witness testimonies as reliable, violated the fair trial
Aslan Ismayilov v. Azerbaijan 12.03.2020 (no. 18498/15)
Fair trial and reasoning of judicial decisions. Withdrawal of a lawyer license after disciplinary action by a court following a judge’s complaint. Failure of courts to respond to the applicant’s claims and unilateral evaluation of witness testimony against the lawyer and the complaining judge.
The applicant was a lawyer. He was accused by a judge of going into the office of the judge with his associate, insulting him and threatening of getting dissmissed. Following the judge’s complaint against him, the Disciplinary Board and the Bureau of his law firm referred him to court. The applicant’s lawyer was irrevocably sentenced to revocation of his license to practice and was subsequently removed from the Bar.
The applicant denied having insulted and threatened the judge and requested the court of first instance to examine his associate as the only eyewitness in the judge’s office and 6 other court clerks who came to the judge’s office as witnesses. by invitation and signed a report against him.
The Court recalls that the right to a fair trial and the fair administration of justice is only guaranteed when the parties’ claims are actually heard and the judgments of the courts are sufficiently and clearly justified.
The court of first instance did not respond to the applicant’s claims and did not examine the witnesses he proposed and were decisive in his defense. The Court of Appeal did the same, but in the post-appeal hearing it examined the eyewitness, whom it considered to be unreliable because he was working with the applicant and 3 of the 6 court clerks, without justifying why it did not examine the other 3, convicting the applicant again with the same sentence.
The ECtHR found that the Court of Appeal: (a) did not provide sufficient reasons why it considered the eyewitness to be unreliable on the grounds that he had worked with the applicant, and as credible the depositions of the witnesses working for the judge (b) no justification for examining only 3 of the 6 court officials as witnesses.
The Court unanimously held that the national courts had failed to comply with their obligation to a fair trial on the ground of inadequate reasoning and failure to respond to the applicant’s claims and found a violation of the fair trial (Article 6 § 1 of the ECHR).
The applicant, Aslan Ziyaddin oglu Ismayilov, is an Azerbaijani national who was born in 1958 and
lives in Baku.
The case concerned his complaint about proceedings for his disbarment.
In February 2013 after a dispute in a judge’s office, the judge requested that the Azerbaijan Bar
Association examine the applicant’s behaviour. The judge said the applicant had unlawfully
requested the return of documents submitted to the court after the end of a court hearing, had
unlawfully entered his office, and had insulted and threatened him.
The Bar Association Disciplinary Commission referred the complaint to the Association’s Presidium,
finding, among other things, that he had unlawfully entered the judge’s office to ask for the return of
the documents submitted to the court and had insulted and threatened the judge. The applicant
argued that he had been acting on behalf of a client and denied the judge’s allegations. The
Presidium subsequently referred the case to a court in May 2013 for proceedings on his disbarment.
A first set of proceedings ended with the Supreme Court returning the case for fresh examination
and in July 2014 the Baku Court of Appeal upheld a first-instance decision to disbar him. The court
heard a lawyer colleague of the applicant who had been in the judge’s office at the time of the
incident and three other people, court officers, who had witnessed the events. The Supreme Court
upheld the appeal judgment in December 2014.
Relying in particular on Article 6 § 1 (right to a fair hearing) of the European Convention on Human
Rights, the applicant complained that the courts had made unfair decisions which had lacked
THE DECISION OF THE COURT…
The Court also reiterates that, in view of the principle that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective, the right to a fair trial cannot be seen as effective unless the requests and observations of the parties are truly “heard”, that is to say, properly examined by the tribunal.
The Court further notes that according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Without requiring a detailed answer to every argument advanced by the complainant, this obligation presupposes that parties to judicial proceedings can expect to receive a specific and explicit reply to the arguments which are decisive for the outcome of those proceedings.
Turning to the circumstances of the present case, the Court observes that, relying on the findings of the ABA Disciplinary Commission, the domestic courts ordered the applicant’s disbarment on three grounds: (i) the applicant had failed to document the legal service provided to the client; (ii) the law firms “Visa” and “Aslan Ismayilov and Partners” were located at the same address; and (iii) the applicant had unlawfully entered the judge’s office to request the return of the documents submitted to the court and had insulted and threatened the judge
In particular, the Court observes that the applicant produced evidence clearly proving that he had documented the legal service provided to the client, F.A. It appears from the documents in the case file that there existed contracts between the applicant and the client, as well as between the “Visa” law firm and the client. By a power of attorney issued on 12 December 2012, she also authorised the applicant and K.M. to represent her in the court proceedings. Moreover, mandate no. 000679 was issued, confirming that the client was represented by the applicant. The domestic courts’ judgments contained no assessment of these documents.
In this connection, the Court notes that the report dated 12 February 2013 was the only evidence in support of the judge’s complaint. However, although the only eyewitness to the incident, K.M., who was heard by the Baku Court of Appeal following repeated requests by the applicant and the remittal of the case to the appellate court by the Supreme Court, provided evidence supporting the applicant’s version of events, the domestic courts paid no heed to his statement. In particular, the appellate court did not provide sufficient explanation as to why it considered unreliable K.M.’s statement on the grounds that he worked with the applicant, but readily accepted as reliable the statements made by those who worked with the judge and signed the report of 12 February 2013. Equally, the Court notes that the appellate court’s judgment gave no explanation as to why the Baku Court of Appeal heard only three of the six persons who had signed the report in question.
The Court considers that the foregoing considerations are sufficient to enable it to conclude that the domestic courts fell short of their obligation under Article 6 § 1 to provide adequate reasons for their decisions, in view of their failure to give reasons in respect of those of the applicant’s arguments which were decisive for the outcome of the case.
There has accordingly been a violation of Article 6 § 1 of the Convention.
Just satisfaction: The Court dismissed the applicant’s claim for just satisfaction because it was
submitted outside the allocated time-limit.