European Court of Human Rights

 

FIRST SECTION

CASE OF AFGAN MAMMADOV v. AZERBAIJAN

(Application no. 43327/14)

 

JUDGMENT

 

STRASBOURG

14 November 2024

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Afgan Mammadov v. Azerbaijan,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Ivana Jelić, President,
          Alena Poláčková,
          Krzysztof Wojtyczek,
          Lətif Hüseynov,
          Gilberto Felici,
          Erik Wennerström,
          Raffaele Sabato, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 43327/14) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by an Azerbaijani national, Mr Afgan Mammad oglu Mammadov (Əfqan Məmməd oğlu Məmmədov, "the applicant"), on 27 May 2014;

the decision to give notice to the Azerbaijani Government ("the Government") of the application;

the observations submitted by the Government and the observations in reply submitted by the applicant;

the comments submitted by the International Bar Association's Human Rights Institute, which was granted leave to intervene by the President of the Section;

Having deliberated in private on 25 June and 15 October 2024,

Delivers the following judgment, which was adopted on the latter date:

INTRODUCTION

1.  The present case concerns the applicant's disbarment for actions allegedly incompatible with advocacy and with lawyers' ethics. The applicant complained inter alia that his disbarment had been in breach of his right to freedom of expression as provided for in Article 10 of the Convention.

THE FACTS

2.  The applicant was born in 1962 and lives in Baku. The applicant was represented by Mr E. Sadigov, a lawyer practising in Baku.

3.  The Government were represented by their Agent, Mr Ç. Əsgərov.

4.  The facts of the case may be summarised as follows.

I.        THE COMPLAINT OF THE APPLICANT AND HIS COLLEAGUES AGAINST THEIR DIRECTOR

5.  The applicant was a lawyer and a member of the Azerbaijani Bar Association (Azərbaycan Respublikası Vəkillər Kollegiyası - hereinafter "the ABA"). His membership of the ABA conferred on him the status of "advocate" (vəkil) and gave him a number of rights and powers (see, in particular, paragraph 38 below) exclusively associated with that status (for the purposes of the present judgment, the Court will use the terms "lawyer" and "advocate" interchangeably). He was affiliated to and worked at Legal Consultancy no. 11 (11 saylı Hüquq Məsləhətxanası – "the Legal Consultancy") in Baku - a non-commercial legal entity of advocates, governed by, inter alia, its own Statute and the Statute of the ABA. In accordance with the Statute of the Legal Consultancy the applicant's affiliation with it would cease automatically if he lost his membership in the ABA.

6.  On 20 February 2012 the applicant and five of his colleagues (the lawyers Sh.K., S.H., N.H., N.I. and I.N.) addressed a written complaint to the Presidium of the ABA (Azərbaycan Respublikası Vəkillər Kollegiyası Rəyasət Heyəti – hereinafter "the Presidium") against Z.G., a lawyer and also the director (müdir) of the Legal Consultancy (according to the Statute of the Legal Consultancy, the director was elected by the General Assembly of Lawyers - the main administrative body of the Legal Consultancy - for five years from among the lawyers working in the Legal Consultancy; the director managed everyday activities of the Legal Consultancy, had executive functions and had the right, inter alia, to issue lawyer warrants (vəkil orderləri), to designate State-appointed lawyers to cases where such lawyers were needed, to arrange paperwork in the Legal Consultancy, and to represent the Legal Consultancy).

The complaint of 20 February 2012 alleged in particular that Z.G. was assigning to himself, by issuing lawyer warrants to that effect, the majority of cases where a State-appointed lawyer was needed; that without actually participating in those cases as a lawyer, Z.G. was selling the warrants to investigators (müstəntiq) and preliminary investigators (təhqiqatçı) [meaning that Z.G. was receiving payment for not exercising his function as a State-appointed lawyer during investigations]; that Z.G. wanted total control over the issuing of lawyer warrants because he was backdating some of the warrants he was selling to investigators and preliminary investigators and he therefore needed to ensure that the serial numbers (sıra nömrələri) and the altered dates of issue of the warrants did not clash; and that if other lawyers of the Legal Consultancy took up such cases then Z.G. charged them (the lawyers) 20 to 50 Azerbaijani manats (AZN) per warrant.

7.  The complaint contained a request for the chairman of the Presidium to participate in the lawyers' meeting on 22 February 2012 to "discuss the situation" in the Legal Consultancy and "find a solution" to it (according to the applicant, the planned meeting did not eventually take place).

II.     THE APPLICANT'S TRANSFER TO A DIFFERENT LEGAL CONSULTANCY

8.  On 27 February 2012 the Presidium held its own meeting to "examine the situation" in the Legal Consultancy (details of the meeting were not submitted to the Court).

9.  On that day, 27 February 2012, the Presidium decided to transfer the applicant and his colleague Sh.K. to different legal consultancies - to Legal Consultancies nos. 9 and 10 respectively.

10.  On an unspecified date the applicant and Sh.K. lodged a civil action against the ABA in the Nasimi District Court, arguing that their transfer by the Presidium had been unlawful and asking, inter alia, for the decision of 27 February 2012 to be quashed.

11.  The applicant and Sh.K. argued that the Presidium had had no right to transfer them and that their transfer had been in breach of their rights as founders of the Legal Consultancy.

12.  They also alleged in particular that the then composition of the Presidium lacked legitimacy because its five-year term of office had ended in 2009 and since then the above-mentioned composition had prevented any new elections to the Presidium; furthermore, the second term of office of the chairman of the Presidium had also expired in 2009 and the Law on Advocates and Advocacy Activity did not allow the same person to hold the position of the chairman for more than two terms.

13.  On 16 April 2012 the Presidium issued an "opinion" about the above-mentioned civil action lodged by the applicant and Sh.K. The opinion was submitted to the Nasimi District Court.

14.  In the opinion the Presidium argued that the transfer of a lawyer from one law office to another fell within its powers; that the transfer of the applicant and Sh.K. had been a non-disciplinary measure aimed at ensuring the normal functioning of the Legal Consultancy; and that "the way in which [the civil action] had been drafted and the lack of substantiation of the issues raised in it confirmed once again that those two lawyers [the applicant and Sh.K.] did not have the required level of professional aptitude".

15.  The Presidium also argued that the applicant and Sh.K. had not been founders of the Legal Consultancy because it had been established in 2005, whereas Sh.K. had been transferred to it from Legal Consultancy no. 13 only in 2008 and the applicant had been admitted to membership of the ABA only in 2007.

16.  By a judgment of 18 May 2012, the Nasimi District Court dismissed the civil action lodged by the applicant and Sh.K.

17.  It appears that the parties did not lodge any appeal against that judgment.

III.   DISCIPLINARY PROCEEDINGS AGAINST THE APPLICANT AND HIS SUBSEQUENT DISBARMENT

A.    Disciplinary proceedings

18.  On an unspecified date in 2012 the Presidium referred the complaint of 20 February 2012 for examination by its Disciplinary Commission.

19.  The Disciplinary Commission obtained written statements from the lawyers who had lodged the complaint of 20 February 2012 and from Z.G. Those statements may be summarised as follows.

(i)  Sh.K. and I.N. stated that they had signed the complaint without reading it and they did not confirm what had been written in it (later Sh.K. retracted this statement and maintained the complaint; see paragraph 23 below).

(ii)  N.H. stated that he did not know whether the allegation of Z.G. selling warrants was true or false and that he (N.H.) had signed the complaint merely because he "disapproved of the alleged actions in general".

(iii)  S.H. stated that Z.G. had never sold warrants to her and she had heard about Z.G. selling warrants from some "other lawyer whose name she could not tell".

(iv)  N.I. stated that a client whom she had been representing as a State-appointed lawyer had once given her AZN 50 to be handed over to Z.G. "for the warrant", that later Z.G. had demanded that money from her (N.I.) saying that it "had been paid for the warrant", and that she had refused to submit to Z.G.'s demand (in her additional written statement, N.I. stated that she had returned the money to her client). N.I. also stated that on two other occasions when Z.G. had issued a warrant in her name, he, "instead of the investigator", had given her a part of two sums, of AZN 30 and AZN 20 respectively, "from his own pocket", keeping the rest of those sums for himself.

(v)  The applicant stated that Z.G. had demanded AZN 50 from N.I. to issue a warrant; and that Z.G. had never sold a warrant to him (the applicant) because he had not taken on any cases in which a State‑appointed lawyer was needed.

(vi)  Z.G. stated that the applicant and N.I. had been conspiring to have him removed from his position because they disliked his demands that they abide by the law in the course of their professional activity, and that their allegations against him were malicious and false. Z.G. also stated that he had demanded that N.I. transfer the sum in question (AZN 50) to the Legal Consultancy's account and that he had never given any money to N.I.

20.  On 16 May 2012 the Disciplinary Commission issued an opinion based on the above-mentioned written statements, saying that the allegations made in the complaint of 20 February 2012 had been untrue and recommending that the Presidium "give a legal characterisation to the lawyers' actions".

21.  On 22 May 2012 the Presidium held a meeting with N.I. and Sh.K. The applicant was also asked to attend the meeting. However, the applicant sent a telegram to the ABA saying that he refused to appear, that the opinion of the Disciplinary Commission was biased and that the Presidium and the Disciplinary Commission lacked legitimacy as their mandate had expired in 2009 (a copy of the telegram was not submitted to the Court).

22.  During the meeting of 22 May 2012, the Presidium criticised N.I., stressing that she should not have accepted any money from a person whom she had been representing as a State-appointed lawyer and that she should have transferred the money in question (AZN 50) to the Legal Consultancy's account. According to the minutes of the meeting, N.I. withdrew her earlier allegation (see paragraph 19 (iv) above) that Z.G. had on two occasions given her money.

23.  The same minutes recorded that Sh.K. had retracted the written statement (see paragraph 19 (i) above) that he had given to the Disciplinary Commission. Apparently, Sh.K. stood by his allegations made in the complaint of 20 February 2012.

24.  On the same day, 22 May 2012, the Presidium followed the Disciplinary Commission's above-mentioned recommendation (see paragraph 20 above) and issued a decision giving a legal characterisation to the lawyers' actions. The Presidium concluded that in the complaint of 20 February 2012 the applicant, Sh.K. and N.I. had disseminated untrue and slanderous information about Z.G. in an attempt to have him removed from his position and that they had thus hindered the normal functioning of the Legal Consultancy. Those actions were incompatible with lawyers' ethics and in breach of the Law on Advocates and Advocacy Activity, which required that "in exercising his or her professional activities, an advocate shall perform his or her obligations flawlessly, in accordance with the present Law" and "refrain from making calls to commit illegal actions".

25.  The Presidium also concluded that the actions of the other lawyers who had lodged the complaint were incompatible with lawyers' ethics.

26.  Furthermore, the Presidium decided to apply to a court with a view to having the applicant and Sh.K. disbarred. It also decided to suspend the two lawyers from practice pending the court decision on their disbarment.

27.  The Presidium based its decision on the statements previously made by the lawyers (see paragraphs 19 and 22 above). It also took into consideration its own earlier disciplinary decisions against the applicant and Sh.K. (namely, the decisions of 14 January 2011 and 3 November 2011, by which the applicant and Sh.K. had been warned and reprimanded respectively).

B.    Court proceedings concerning the applicant's disbarment

28.  On an unspecified date the Presidium lodged a civil action against the applicant, asking the Binagadi District Court to disbar him on the same grounds as those indicated in its decision of 22 May 2012 (see paragraph 24 above) and on the grounds that he had refused to participate in person in the disciplinary proceedings.

29.  On 20 February 2013 the Binagadi District Court allowed that civil action and terminated the applicant's membership of the ABA. The first‑instance court held as follows:

"The [allegations against Z.G.] made in the complaint of [20 February 2012] ... were not confirmed during the examination [conducted by the Disciplinary Commission].

...

The groundless attempt by [the applicant] to disrupt the work of the legal consultancy in which he works; his refusal to appear [in reply] to the calls by the highest bodies of [the ABA]; and [the fact that] he had unilaterally asserted that those bodies were not legitimate are actions that are incompatible with advocacy and with lawyers' ethics. The [first-instance] court has also taken into consideration [the fact that the applicant] has previously been subjected to disciplinary proceedings and [received] a warning. In view of these considerations, the civil action must be allowed [and the applicant] must be [deprived] of his membership of the Bar Association of the Republic of Azerbaijan."

30.  In the judgment, Article 16, paragraph I, and Article 22, paragraphs I and VIII, of the Law on Advocates and Advocacy Activity (see paragraphs 41 and 43 below) were given as the legal grounds for the applicant's disbarment.

31.  The first-instance court based its judgment on the statements obtained by the Disciplinary Commission and by the Presidium (see paragraphs 19 and 22 above) and on the conclusions reached in the Presidium's decision of 22 May 2012 (see paragraph 24 above). It also took into consideration the disciplinary decision of 14 January 2011 (see paragraph 27 above).

32.  The applicant appealed, alleging that the disciplinary proceedings against him and the request for disbarment had constituted a form of retaliation for the fact that in the earlier court proceedings (see paragraph 12 above) he and Sh.K. had criticised the ABA, called into question the legitimacy of the Presidium and of its chairman and challenged the Presidium's decision of 27 February 2012. In addition, those measures had served as a tool to discourage other lawyers from raising the same issues and challenging decisions of the Presidium.

33.  The applicant argued that, by lodging the complaint of 20 February 2012 against the unlawful actions of Z.G., he had exercised his constitutional right to petition and to criticise and challenge the actions of various authorities and individuals. It was the role of law-enforcement authorities and the courts and not of the Presidium to investigate Z.G.'s actions and establish whether the information provided in the complaint had been false and whether that information could be regarded as having been "disseminated" to the public. The first-instance court that had disbarred him had failed to examine whether making the complaint had amounted to an unlawful action.

34.  The applicant also argued that by calling into question the legitimacy of the Presidium and of its chairman and refusing to participate in person in the meeting of the Presidium, he had exercised his freedom of expression. In his appeal the applicant reiterated his arguments (see paragraph 12 above) about the alleged lack of legitimacy of the Presidium and of its chairman.

35.  On 14 June 2013 the Baku Court of Appeal dismissed the applicant's appeal and upheld the judgment of the first-instance court, reiterating the same reasoning as the lower court without addressing any of the applicant's specific arguments.

36.  The applicant lodged a cassation appeal, repeating his earlier arguments. On 27 November 2013 the Supreme Court upheld the judgment of the Baku Court of Appeal, reiterating the same reasoning as the lower courts.

IV.  DISBARMENT OF Z.G. AND SH.K.

37.  Z.G. was dismissed from his position as the director of the Legal Consultancy. According to the applicant, Z.G. and Sh.K. were eventually also disbarred.

RELEVANT LEGAL FRAMEWORK

I.        RELEVANT DOMESTIC LAW

38.  The relevant parts of the Law on Advocates and Advocacy Activity of 28 December 1999 provided at the material time as follows:

Article 4. Advocacy

"I. A person who has been admitted into the Bar Association's membership ... and who has taken the lawyer's oath may engage in advocacy.

II. [The following activities] shall fall exclusively within the scope of advocacy: defence of a suspect or accused person in criminal cases, representation of a person who has lodged a cassation appeal ... with the Supreme Court of the Republic of Azerbaijan in civil cases, and representation of a person who has lodged a complaint about a violation of rights and freedoms with the Constitutional Court."

39.  The relevant parts of Article 10 of the Law provided at the material time as follows:

Article 10. General assembly (conference) of the Bar Association members

"I. [The following] shall fall within the exclusive power of the general assembly (conference) of the members of the Bar Association: ... election of the chairman, his or her deputies and other members of the Bar Association's Presidium, the chairman and members of the Disciplinary Commission.

...

III. The general assembly of the Bar Association shall be convened by the Presidium of the Bar Association not less often than once every three years."

40.  The relevant parts of Article 11 of the Law provided at the material time as follows:

Article 11. Presidium of the Bar Association

"II. The chairman, deputy chairmen and other members of the Presidium of the Bar Association shall be elected at the general assembly of the Bar Association for a term of five years. The chairman and deputy chairmen of the Presidium of the Bar Association shall also be the chairman and deputy chairmen of the Bar Association. No one may be elected to the position of chairman of the Bar Association's Presidium more than twice.

III. The Presidium of the Bar Association shall:

convene the general assembly and arrange enforcement of its decisions;

..."

41.  The relevant parts of Article 16 of the Law provided at the material time as follows:

Article 16. Obligations of an advocate

"I. When exercising his or her professional activities, an advocate shall:

...

maintain advocate secrecy [and] comply with the advocate's oath and with lawyers' ethics;

be exclusively guided by the requirements of the legislation;

..."

42.  The relevant parts of Article 18 of the Law provided at the material time as follows:

Article 18. Lawyers' ethics

"When exercising his or her professional activities, an advocate shall perform his or her obligations flawlessly, in accordance with the present Law; ... refrain from making any calls to commit illegal actions; ... and comply with the other requirements of lawyers' ethics provided for by the Statute on Advocates' Code of Conduct, adopted by the general assembly of the Bar Association."

43.  The relevant parts of Article 22 of the Law provided at the material time as follows:

Article 22. Disciplinary liability of advocates

"I. An advocate shall be held liable for a disciplinary offence if it is found that during the exercise of his or her professional duties he or she has breached any provisions of the present Law or of other legislative acts, the Statute on Advocates' Code of Conduct, or the norms of lawyers' ethics.

II. An advocate shall be held liable for a disciplinary offence only by the Presidium of the Bar Association on the basis of an opinion issued by the Disciplinary Commission of advocates.

...

VIII. If there are grounds for excluding [an advocate] from the Bar Association, the Presidium of the Bar Association may, on the basis of an opinion issued by the Disciplinary Commission, apply to a court for a determination on that issue [and] may suspend the activity of [that] advocate until the entry into force of the court's decision."

44.  It appears that the Statute on the Advocates' Code of Conduct, referred to in Articles 18 and 22 of the Law on Advocates and Advocacy Activity, was adopted by the general assembly of the Bar Association on 8 December 2012.

II.     INTERNATIONAL MATERIALS

45.  Recommendation R (2000) 21 of the Council of Europe's Committee of Ministers to member States on the freedom of exercise of the profession of lawyer (adopted on 25 October 2000) states as follows:

"The Committee of Ministers ...

... Underlining the fundamental role that lawyers and professional associations of lawyers also play in ensuring the protection of human rights and fundamental freedoms;

Desiring to promote the freedom of exercise of the profession of lawyer in order to strengthen the Rule of Law, in which lawyers take part, in particular in the role of defending individual freedoms;

Conscious of the need for a fair system of administration of justice which guarantees the independence of lawyers in the discharge of their professional duties without any improper restriction, influence, inducement, pressure, threats or interference, direct or indirect, from any quarter or for any reason;

... Recommends the governments of member States to take or reinforce, as the case may be, all measures they consider necessary with a view to the implementation of the principles contained in this Recommendation.

...

Principle I - General Principles on the freedom of exercise of the profession of lawyer

1. All necessary measures should be taken to respect, protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public, in particular in the light of the relevant provisions of the European Convention on Human Rights.

2. Decisions concerning the authorisation to practice as a lawyer or to accede to this profession should be taken by an independent body. Such decisions, whether or not they are taken by an independent body, should be subject to a review by an independent and impartial judicial authority.

3. Lawyers should enjoy freedom of belief, expression, movement, association and assembly, and, in particular, should have the right to take part in public discussions on matters concerning the law and the administration of justice and suggest legislative reforms.

4. Lawyers should not suffer or be threatened with any sanctions or pressure when acting in accordance with their professional standards ..."

46.  The relevant parts of the annual report (A/71/348) to the United Nations General Assembly (2016, 71st session of the General Assembly) of the Special Rapporteur of the Human Rights Council on the independence of judges and lawyers state:

"E. Ethics, accountability and disciplinary measures

...

96. Disbarment, which consists in taking away a lawyer's licence to practice law, possibly for life, constitutes the ultimate sanction for the most serious violations of the code of ethics and professional standards. In many countries, lawyers often face the threat of disbarment. Such threats may be aimed at undermining the independence of a lawyer, at intimidating a lawyer to prevent the discharge of professional duties or at carrying out an act of reprisal for activities a lawyer may have carried out in the legitimate exercise of his or her professional responsibilities. The Special Rapporteur wishes to stress that disbarment should only be imposed in the most serious cases of misconduct, as provided in the professional code of conduct, and only after a due process in front of an independent and impartial body granting all guarantees to the accused lawyer ..."

THE LAW

I.        ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

47.  The applicant complained that his disbarment had been in breach of his right to freedom of expression as provided for in Article 10 of the Convention, which reads as follows:

"1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

A.    Admissibility

1.     The parties' submissions

48.  The Government argued that the applicant had failed to exhaust the available domestic remedies for this complaint as he had not referred to Article 10 of the Convention in his domestic appeals.

49.  The applicant contested that argument.

2.     The Court's assessment

50.  Having regard to the material submitted to it, the Court notes that the applicant raised the present complaint in the domestic courts, invoking in substance his freedom of expression, as is clear from his submissions to the Baku Court of Appeal and the Supreme Court (see paragraphs 32-34 and 36 above). The applicant has therefore exhausted domestic remedies, even if he did not explicitly mention Article 10 of the Convention in his appeals. Consequently, the Court dismisses the Government's objection as to the non‑exhaustion of domestic remedies.

51.  The Court also notes that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

1.     The parties' submissions

52.  The applicant alleged that the disciplinary proceedings against him and his disbarment had constituted a form of retaliation for his criticism of the ABA and his calling into question the legitimacy of the Presidium and of its chairman. Furthermore, those measures had served the purpose of discouraging other lawyers from raising the same issues or challenging decisions of the Presidium.

53.  The applicant argued in particular that, in lodging the complaint of 20 February 2012 against the unlawful actions of Z.G., calling into question the legitimacy of the Presidium and of its chairman, and refusing to participate in person in disciplinary proceedings, he had been exercising his freedom of expression, including his constitutional right to petition and to criticise and challenge the actions of various authorities and individuals. However, instead of independently analysing his case from the standpoint of freedom of expression, the domestic courts had simply endorsed the Presidium's claims that the allegations against Z.G. had been "false" and that they had been "disseminated"; similarly, the courts had ignored his (the applicant's) arguments concerning the lack of legitimacy of the Presidium and of its chairman. Furthermore, he had been subjected to the harshest punishment in his profession.

54.  The Government rejected as speculative the applicant's allegations that his disbarment had been a form of retaliation for his criticism of the ABA. They submitted that the applicant's disbarment had been strictly related to his professional activity as a lawyer, in particular his dissemination of false and slanderous information about the director of the Legal Consultancy and his (the applicant's) attempt to have the director removed from his position. Those actions had hindered the normal functioning of the Legal Consultancy in question and breached lawyers' ethics.

2.     Third-party intervention

55.  The International Bar Association's Human Rights Institute ("the IBAHRI") - an organisation active in the field of promoting and protecting human rights and the independence of the legal profession worldwide - made a third-party intervention. The IBAHRI emphasised that lawyers were entitled to freedom of expression (in particular in relation to such matters as the law, the administration of justice and human rights) and to freedom of association; that those freedoms were related to the issue of the independence of the legal profession; and that unjustified restrictions on those freedoms could have a chilling effect on lawyers' performance of their professional duties and could impede the rule of law and weaken the justice system. The IBAHRI argued that disbarment (the most severe sanction in the legal profession), as a measure responding to a private letter of complaint, could in no way satisfy the proportionality requirement or be justified by a pressing social need.

3.     The Court's assessment

(a)    Whether there was an interference

56.  The Court notes that the factual grounds (see paragraph 29 above) for the applicant's disbarment - namely (i) his making of the complaint of 20 February 2012 about the alleged unlawful actions of Z.G.; (ii) his calling into question the legitimacy of the Presidium and of its chairman; and (iii) his consequent refusal to participate in person in the disciplinary proceedings - all constituted forms of "expression" under Article 10 of the Convention (compare Mătăsaru v. the Republic of Moldova, nos. 69714/16 and 71685/16, § 29, 15 January 2019, regarding the expression of opinions through conduct). Consequently, the Court concludes that there was an interference with the applicant's right to freedom of expression.

57.  An interference will not be justified under Article 10 of the Convention unless it is "prescribed by law", pursues one or more of the legitimate aims set out in paragraph 2 of that Article and is "necessary in a democratic society" for the achievement of that aim or those aims.

(b)    Whether the interference was lawful

(i)     Applicable principles

58.  The Court reiterates that the expressions "prescribed by law" and "in accordance with the law" in Articles 8 to 11 of the Convention require that the disputed measure must have some basis in domestic law and also be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and is inherent in all its Articles (see Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 249, 22 December 2020, with further references).

59.  The expressions "prescribed by law" and "in accordance with the law" also refer to the quality of the law in question, requiring that it should be accessible to the persons concerned and foreseeable as to its effects (see, among many other authorities, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 140, ECHR 2012; Delfi AS v. Estonia [GC], no. 64569/09, § 120, ECHR 2015; and Selahattin Demirtaş, cited above, § 249). The notion of "quality of the law" requires, as a corollary of the foreseeability test, that the law be compatible with the rule of law. It thus implies that there must be adequate safeguards in domestic law against arbitrary interference by public authorities (see Magyar Kétfarkú Kutya Párt v. Hungary [GC], no. 201/17, § 93, 20 January 2020, with further references).

60.  In assessing the lawfulness of an interference, and in particular the foreseeability of the domestic law in question, the Court has regard both to the text of the law and to the manner in which it was applied and interpreted by the domestic authorities (see Jafarov and Others v. Azerbaijan, no. 27309/14, § 70, 25 July 2019). The practical interpretation and application of the law by the domestic courts must give individuals protection against arbitrary interference (see Selahattin Demirtaş, cited above, § 275, and Hasanov and Majidli v. Azerbaijan, nos. 9626/14 and 9717/14, § 64, 7 October 2021).

(ii)    Application of the above principles to the present case

61.  In the present case, the applicant was subjected to the harshest disciplinary sanction in his profession, on the basis of Article 22 of the Law on Advocates and Advocacy Activity, pursuant to which a lawyer could be disbarred by a decision of a court if there were "grounds for excluding [the advocate] from the Bar Association" (see Article 22, paragraph VIII, in paragraph 43 above). Furthermore, the domestic courts disbarring the applicant stated that he had committed "actions incompatible with advocacy and with lawyers' ethics" in breach of Article 16, paragraph I, and Article 22, paragraph I, of the Law on Advocates and Advocacy Activity (see paragraphs 29-30 above). According to those provisions, a lawyer had to "comply with the advocate's oath and with lawyers' ethics" and to "be exclusively guided by the requirements of the legislation" (see Article 16, paragraph I, in paragraph 41 above) and a lawyer would be held liable for a disciplinary offence if "he or she breached provisions of the [Law on Advocates and Advocacy Activity] or of other legislative acts, the Statute on Advocates' Code of Conduct, or the norms of lawyers' ethics" (see Article 22, paragraph I, in paragraph 43 above).

62.  The Court notes that the above-mentioned provisions of the Law on Advocates and Advocacy Activity were worded in very general and vague terms allowing for a broad interpretation by the domestic authorities. In particular, no clear definition or scope was given of such terms as the grounds for disbarment, actions incompatible with advocacy, and actions incompatible with lawyers' ethics. That was exacerbated by the fact that at the material time the Statute on Advocates' Code of Conduct, which sets the rules on the ethical conduct of lawyers as referred to in Articles 18 and 22 of the Law on Advocates and Advocacy Activity, had not yet been passed (see paragraphs 42-44 above).

63.  Without entering into a detailed analysis of whether the text of those provisions was foreseeable as to its effects, the Court will focus on the way the domestic authorities, in particular the domestic courts, interpreted and applied them, paying particular attention to the facts the authorities found against the applicant and the reasoning of the domestic courts (compare, mutatis mutandis, Election Monitoring Centre and Others v. Azerbaijan, no. 64733/09, §§ 76-77, 2 December 2021).

64.  The Court reiterates that the facts found against the applicant consisted in (i) his lodging of the complaint of 20 February 2012 about the alleged unlawful actions of Z.G., (ii) his calling into question the legitimacy of the Presidium and of its chairman, and (iii) his consequent refusal to participate in person in the disciplinary proceedings.

65.  The Court notes in that connection that the domestic courts disbarring the applicant did not conduct any independent judicial inquiry into the allegations made in the complaint of 20 February 2012, despite the seriousness of those allegations. They simply endorsed (see paragraph 29 above) the conclusion of the Presidium in its decision of 22 May 2012 that those allegations had been untrue.

66.  The domestic courts also failed to give any reasons whatsoever for considering that the applicant's calling into question the legitimacy of the Presidium and of its chairman and his consequent refusal to participate in person in the disciplinary proceedings fell within the ambit of the terms "grounds for disbarment", "actions incompatible with advocacy" and "actions incompatible with lawyers' ethics" under Articles 16, 18 and 22 of the Law on Advocates and Advocacy Activity. Furthermore, the domestic courts ignored the applicant's pertinent arguments (see paragraphs 12 and 34 above) about the alleged lack of legitimacy of the Presidium and of its chairman - although those arguments were supported by the relevant domestic law, according to which the Presidium's term of office was indeed limited to five years and its chairman could not be re-elected for more than one subsequent term (see paragraphs 39-40 above). Even though the Presidium had presented no argument at all to rebut the applicant's allegation that its term of office and that of its chairman had expired in 2009, the courts ruled against the applicant on this issue, without providing any reasoning. No such argument was presented by the Government to the Court either.

67.  In view of the above, the Court considers that the way the domestic courts interpreted and applied the relevant domestic legislation in practice does not appear to have afforded the applicant protection against arbitrary interference. Consequently, there are strong indications that the applicant's disbarment failed to meet the "prescribed by law" requirement under Article 10 § 2 of the Convention. However, the Court notes that the issues concerning the lawfulness of the applicant's disbarment are closely linked to broader issues arising in respect of whether that interference was "necessary in a democratic society", including the question of the proportionality of the measure taken. The Court will therefore proceed to examine those broader issues before reaching a conclusion on all aspects of the alleged violation of Article 10 of the Convention (see, for a similar approach, Mustafa Hajili and Others v. Azerbaijan, nos. 69483/13 and 2 others, § 53, 6 October 2022, among other authorities).

(c)    Whether the interference pursued a legitimate aim and was "necessary in a democratic society"

(i)     Applicable principles

68.  The general principles for assessing the necessity of an interference with the exercise of freedom of expression were recently summarised in Bédat v. Switzerland [GC] (no. 56925/08, § 48, ECHR 2016) as follows:

"(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no 'democratic society'. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...

(ii) The adjective 'necessary', within the meaning of Article 10 § 2, implies the existence of a 'pressing social need'. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a 'restriction' is reconcilable with fr eedom of expression as protected by Article 10.

(iii) The Court's task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was 'proportionate to the legitimate aim pursued' and whether the reasons adduced by the national authorities to justify it are 'relevant and sufficient'... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ..."

(ii)    Application of the above principles to the present case

69.  Neither the domestic courts' decisions (see paragraphs 29 and 35-36 above) nor the Government's submissions (see paragraph 54 above) contain any explicit reference to the legitimate aims pursued by the applicant's disbarment, apart from indicating that the applicant hindered the normal functioning of the Legal Consultancy by making untrue statements about its director, which might broadly correspond to the aim of "protection of the reputation and rights of others". However, in view of the considerations set out below, the Court does not have to pronounce itself further on this question (see paragraph 80 below).

70.  Turning to the question of whether the reasons adduced by the national authorities to justify the interference were relevant and sufficient, the Court reiterates its finding (see paragraph 66 above) that the domestic authorities gave no reasoning to justify the applicant's disbarment on the second and third factual grounds (namely the questioning of the legitimacy of the Presidium and of its chairman and refusing to participate in the disciplinary proceedings in person; see paragraph 56 above). As to the justification given for the disbarment on the first factual ground (namely the lodging of the complaint of 20 February 2012; see paragraph 56 above), the Court observes as follows.

71.  The applicant and other lawyers who made the complaint in question alerted the ABA about the alleged problems at the Legal Consultancy where they worked - a non-commercial legal entity of advocates all of whose members were required to be members of the ABA and which was governed by, inter alia, the Statute of the ABA. In the complaint the chairman of the ABA's Presidium was invited to "discuss the situation" and "find a solution" to it (see paragraph 7 above).

72.  The allegations made about Z.G. (a lawyer and the director of the Legal Consultancy; see paragraph 6 above) in the complaint concerned specific and serious matters relating to, inter alia, the proper administration of justice and conduct of a criminal nature, such as abuse of power and corruption. The relevant elements were alleged collusion between Z.G. and prosecuting officers (investigators and preliminary investigators) in cases requiring the participation of a State-appointed lawyer - collusion involving Z.G.'s alleged selling of lawyer warrants to the prosecuting officers (an illegal practice that could affect the rights of people to whom a State-funded lawyer was appointed), Z.G.'s alleged failure to appear and provide actual legal assistance in such cases, and his alleged manipulation of lawyer warrants and the records of them. All these were matters of high public interest - a field in which there is little scope under Article 10 § 2 of the Convention for restrictions and in which a high level of protection of freedom of expression should normally be accorded (see, among many other cases, Halet v. Luxembourg [GC], no. 21884/18, § 131, 14 February 2023; Morice v. France [GC], no. 29369/10, § 125, ECHR 2015; and Khural and Zeynalov v. Azerbaijan (no. 2), no. 383/12, § 59, 19 January 2023). However, the domestic authorities, in particular the courts, did not attach any importance to that aspect.

73.  The domestic authorities also did not take into account the fact that the applicant and the other lawyers, who had tried to raise a matter of public interest, had chosen the least intrusive channel to submit their complaint. They had not made their allegations by reaching out to the public at large, for example through external reporting channels such as mass media outlets; instead, they had complained to the competent professional body, namely the ABA and alerted it directly, giving its Presidium an opportunity to examine the allegations (see, mutatis mutandis, Zakharov v. Russia, no. 14881/03, §§ 22 and 26, 5 October 2006).

74.  As to the examination of the allegations - which were assertions of fact rather than value judgments - and the assessment of the authenticity of the information disclosed, the Court observes that both the Presidium (including its Disciplinary Commission) and the domestic courts adopted an approach of simply demanding that the authors of the complaint of 20 February 2012 prove their allegations, without making any further inquiries and taking further actions.

75.  Firstly, the Presidium and its Disciplinary Commission limited themselves to obtaining written and oral statements (see paragraphs 19 and 21-23 above) about whether Z.G. had sold warrants to the lawyers. The domestic courts in their turn did not conduct any independent judicial inquiry into the allegations made in the complaint of 20 February 2012. The courts' decisions ordering the applicant's disbarment were based entirely on material from the disciplinary proceedings conducted by the Presidium and its Disciplinary Commission. The courts did not summon or question as witnesses Z.G. or any of the lawyers who had signed the complaint together with the applicant. The courts also failed to take any other steps to assess the accuracy of the allegations in question. In particular, nothing was done to examine (or, if appropriate, have examined by the relevant investigative authorities) whether there had been any collusion between Z.G. and the prosecuting officers in cases requiring the participation of a State-appointed lawyer, including the alleged selling of lawyer warrants, or whether Z.G. had ever failed to appear and provide actual legal assistance in such cases - an allegation which could be tested by, for example, questioning defendants or other people involved in such cases. Nor were any steps taken to examine whether any of the lawyer warrants issued by Z.G. or records of them had been manipulated – an allegation which could be tested by, for example, studying the dates and serial numbers of the warrants and the relevant entries in the record books kept at the Legal Consultancy. Furthermore, the applicant's argument raised before the appellate court (see paragraph 33 above) that an assessment of the accuracy of the allegations should have been carried out by the law‑enforcement authorities and courts was not addressed.

76.  In that connection, the Court reiterates that freedom of expression carries with it "duties and responsibilities" and any person who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable (see, mutatis mutandis, Rungainis v. Latvia, no. 40597/08, § 54, 14 June 2018, and Rogalski v. Poland, no. 5420/16, § 50, 23 March 2023). In the present case, it cannot be said that the applicant's allegations against Z.G. were completely devoid of any substance. They were supported by the statements from some of his colleagues, in particular by lawyer N.I. - statements which were withdrawn during the disciplinary proceedings in unclear circumstances (see paragraphs 19 and 22 above). As no action at all was taken by the domestic courts (see paragraph 75 above), it is not possible to conclude either that the applicant had been afforded a realistic opportunity to prove that there had been a sufficient factual basis for his allegations or that he had failed to substantiate, to the extent permitted by the circumstances, that the information he had disclosed was accurate and reliable (see, mutatis mutandis, Morice, cited above, § 155, and Halet, cited above, §§ 124-27; compare and contrast Rogalski, cited above, § 50). As the allegations against Z.G. had not been refuted in the domestic proceedings, the applicant's assertions of fact rested on what he believed to have been sufficient grounds.

77.  Secondly, the domestic courts attached importance to the fact that most of the lawyers who had signed the complaint of 20 February 2012 had withdrawn their allegations when the Disciplinary Commission had requested their written statements. However, the courts ignored the fact that one of those lawyers (Sh.K.) had later retracted the written statement he had given to the Disciplinary Commission and had decided to reaffirm the allegations in question (see paragraphs 19 (i) and 23 above). The courts also ignored the fact that the lawyer N.I. had initially made a written statement against Z.G. but had withdrawn her allegations later, when she had been criticised by the Presidium for her actions and had faced the risk of disciplinary measures (see paragraphs 19 (iv) and 22 above). Even though the applicant had raised an argument that was important in the circumstances of the case (see paragraph 32 above), namely that the disciplinary proceedings against him and Sh.K. had been a form of retaliation for their criticism of the ABA and for calling into question the legitimacy of the Presidium and of its chairman, the domestic courts did not address that issue and did not attempt to establish whether the above‑mentioned withdrawals of their initial statements by N.I. and the other lawyers had been genuine and not dictated by fears of retaliation.

78.  Thirdly, the domestic courts endorsed the Presidium's conclusion that the applicant had tried to disrupt the normal functioning of the Legal Consultancy by disseminating false information about Z.G. (see paragraphs 29 and 35-36 above). By doing so they implied that the applicant had damaged Z.G.'s reputation and attempted to cause harm to the Legal Consultancy and ultimately to the ABA. Notwithstanding the fact that the complaint of 20 February 2012 had only been made to a limited number of people (see paragraph 73 above), the courts did not determine the scope of the alleged damage, nor did they balance the interests in the protection of the rights of Z.G. and the Legal Consultancy against the applicant's right to freedom of expression.

79.  The domestic courts also implicitly endorsed the Presidium's conclusion that the applicant had acted in bad faith when he had made the allegations against Z.G. in the complaint of 20 February 2012. However, the courts did so simply by relying on Z.G.'s written statements to the Disciplinary Commission that the applicant and N.I. had sought "to have him removed from his position" as director of the Legal Consultancy "because they disliked his demands that they abide by the law" (see paragraphs 19 (vi) and 31 above). The courts did not examine Z.G. and made no attempt to verify the allegations he had made in his written statements. The Court notes in that connection that there is nothing in the case material to suggest that by making the disclosure in their complaint of 20 February 2012, the applicant or the other lawyers had pursued any material gain, personal grudge against Z.G., or aim of harming the Legal Consultancy or the ABA.

80.  Turning to the issue of the proportionality of the measure applied to the applicant, the Court reiterates that the applicant was subjected to the harshest punishment possible in his profession - a disbarment - which deprived him of his status of "advocate" and of the exclusive rights and powers associated with that status (see paragraph 38 above). The Court notes in that connection that the use of such a measure could have a serious chilling effect in respect of other lawyers. It could discourage them from reporting any misconduct or controversial acts by the directors of their legal consultancies or criticising the management of their professional association. Having regard to the nature of the penalty imposed and the seriousness of its effect, the Court considers that the applicant's disbarment cannot be regarded as proportionate to any aim that could legitimately have been pursued in the present case (assumingly the protection of the reputation and rights of others).

81.  Having considered the manner in which the domestic authorities, in particular the courts, dealt with the applicant's case, the Court concludes that they failed to provide relevant and sufficient reasons to justify the interference with the applicant's right to freedom of expression.

(iii)  Overall conclusion

82.  In view of its analysis in paragraphs 61-67 and 69-81 above, the Court finds that the applicant's disbarment did not meet the lawfulness requirement of Article 10 and was not "necessary in a democratic society", irrespective of any aim that could legitimately have been pursued by the domestic authorities.

83.  There has accordingly been a violation of Article 10 of the Convention.

II.      OTHER ALLEGED VIOLATIONS OF THE CONVENTION

84.  The applicant complained under Article 6 of the Convention that he had not had a fair hearing in the disbarment proceedings brought against him. He alleged in particular that the domestic courts' decisions had been arbitrary and without adequate reasoning. He also complained under Article 11 of the Convention that his disbarment violated his right to freedom of association because that measure had terminated his rights as one of the founders of the Legal Consultancy and because without membership of the ABA - the only legally permitted professional association of lawyers (advocates) in Azerbaijan - he could no longer exercise the profession of lawyer (advocate). Later, in his observations, the applicant asked the Court to examine those grievances not under Article 11 but under Article 8 of the Convention.

85.  The Government argued that the complaint under Article 11 was inadmissible for failure to exhaust the relevant and available domestic remedies and that the applicant's reliance on Article 8 of the Convention constituted a new complaint which had been submitted outside the six-month time-limit. Furthermore, the Government contested the applicant's submissions under Articles 6 and 11 on the merits.

86.  The applicant maintained his complaints.

87.  In relation to the applicant's Article 11 complaint, the IBAHRI made a third-party intervention, as summarised in paragraph 55 above.

88.  Having regard to its findings in respect of Article 10 of the Convention above and the parties' submissions, the Court considers that there is no need to give a separate ruling on the admissibility and merits of the present complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

III.   APPLICATION OF ARTICLE 46 OF THE CONVENTION

89.  The applicant asked the Court to indicate in its judgment that his membership of the ABA should be restored.

90.  Article 46 of the Convention, in so far as relevant, reads as follows:

"1.  The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2.  The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

..."

91.  The Government did not make any submissions in that respect.

92.  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. In the present case, given the variety of means available to achieve restitutio in integrum and the nature of the issues involved, the Committee of Ministers is better placed than the Court to assess the specific measures to be taken. It should thus be left to the Committee of Ministers to supervise, on the basis of the information provided by the respondent State and with due regard to the applicant's evolving situation, the adoption of measures aimed, among others, at restoring his professional activities. 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 disbarment (see Bagirov v. Azerbaijan, nos. 81024/12 and 28198/15, § 110, 25 June 2020).

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

93.  Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A.    Damage

94.  The applicant claimed 45,000 euros (EUR) in respect of non-pecuniary damage.

95.  The Government argued that this claim was unsubstantiated and excessive. They submitted that any finding of a violation would constitute sufficient reparation.

96.  Ruling on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B.    Costs and expenses

97.  The applicant also claimed EUR 2,400 for the costs and expenses incurred before the Court. In support of his claim, he submitted a contract signed with his representative. He also asked that an award for the costs and expenses be paid directly into the representative's bank account.

98.  The Government submitted that the claim for costs and expenses was unsubstantiated and/or excessive. They asked the Court to dismiss this claim.

99.  According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 plus any tax that may be chargeable to the applicant, in respect of the legal services rendered by Mr E. Sadigov, to be paid directly into the bank account of this representative.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaint concerning Article 10 of the Convention admissible;

2.      Holds that there has been a violation of Article 10 of the Convention;

3.      Holds that there is no need to examine the admissibility and merits of the complaints under Articles 6 and 11 of the Convention;

4.      Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of the legal services rendered by Mr E. Sadigov, to be paid directly into the bank account of this representative;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.      Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 14 November 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Liv Tigerstedt                                                        Ivana Jelić
          Deputy Registrar                                                      President