The court refused to consider the claim by lawyers, recognizing it unacceptable.

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The court refused to consider the claim by lawyers, recognizing it unacceptable.

 

Baku Administrative and Economic Court 1


Case2-1(81)-6590/2017
December 27, 2017
Judge: Sharafat Mammadova
Claimants: Khalid Baghirov, Samira Aghayeva, Namizad Safarov
Defendant: Baku Executive Power

On October 31, 2017, the Azerbaijani parliament passed a law restricting the institution of representation in the courts in civil and administrative cases. We recall that earlier representatives in the courts could be people who are not members of the local bar association, as well as any other persons who do not have a legal education. According to the new law, the rights of citizens in legal disputes in civil and administrative cases can be protected in courts only by their close relatives and members of the Bar Association.

On November 7, 2017, the President of the country signed this law and from January 1, 2018 it enters into force. The population of Azerbaijan is about 10 million people. Since January 2018 exclusively members of the Bar Association will have the right to protect rights of citizens, which had only 934 lawyers in November 2017.

A group of practicing lawyers, who clearly understand that the law signed by the president leaves citizens without professional legal protection, decided to hold a rally in Baku in protest. Three of the group (the plaintiffs in the case, Khalid Baghirov, Samira Aghayeva and Namizad Safarov) addressed to the Baku Executive Power with an appeal asking for an opportunity to hold a rally at the Mahsul Stadium, where opposition parties usually hold rallies. The purpose of the action was to draw the attention of state structures to the problems that will arise after the adoption of the law. In their address, the organizers of the rally pointed out that according to their calculations, from 500 to 5000 people will participate in the rally.

The appeal was filed on November 12, 2017. On November 15, 2017 a negative response came from the Baku Executive Power. Plaintiff lawyers believe that the refusal to hold a protest infringes their right to freedom of assembly guaranteed by national and international legislation.
The plaintiffs decided to appeal this refusal and filed a lawsuit with the court. Judge of the Baku Administrative Economic Court 1 Sharafat Mamedova decided to refuse to consider the claim on the merits and found it unacceptable.

Commentary by an expert lawyer:

The judicial definition is illegal and unreasonable. The definition says that, as indicated in Clause 3 of Article 5 of Freedom of Assembly Act of the Republic of Azerbaijan, the names of the three organizers are indicated in the appeal, however, only two of them signed the appeal. Although, according to the law, it must be signed by all those who apply. Also, the judge refers to the absence in the text of the appeal of an approximate number of protesters.

 

According to Article 35(1) of the Administrative Procedural Code of the Republic of Azerbaijan (APC RA), if the plaintiff’s statement of claim justifies the issuance or refusal to issue an administrative act, or a violation of his/her rights and interests protected by law as a result of act or omission of the administrative body, a claim of litigation, coercion, performance of an obligation or on abstention from the commission of certain actions is considered admissible.
The Administrative and Economic Court reviews the following claims (Article 2.2 of the APC RA):
· Claims for imposing an appropriate obligation on the administrative authority related to the issuance of an administrative act, claims for protection from inaction of an administrative authority and claims for coercion (Article 2.2.2 of the APC RA)

The court, called by law to review the lawsuit, saw shortcomings in the application of the plaintiffs to the Baku Executive Power, a copy of which was attached to the statement of claim. It should be noted that according to Article 5 of Clause 2 of the Freedom of Assembly Act of the Republic of Azerbaijan, the following information should be written in the notification:
1) The form of the meeting, which is provided for;
2) The general purpose of the meeting;
3) The place and time of the meeting;
4) Approximate number of participants;
5) If a street procession is being conducted, then the proposed route (starting place, distance and place of completion of the procession);
6) Information on the organizers of the meeting (full name and address of the individual, name and legal address of the legal entity);
7) The date of submission of the written notification;
8) Telephones for communication or, in the absence, address for communication.
Prior to the decision of the relevant executive authority, the organizers may submit additional information.
Clause 3 of Article 5 of Freedom of Assembly Act says that all organizers of the meeting must sign a written appeal.
As can be seen from this article, it lists the requirements for appeal. The Executive Power, which received such an appeal and found technical defects in it, can refuse the plaintiffs to hold a rally precisely on the basis of the discrepancy between the text of the appeal and the requirements of Article 5 (Clauses: 2.3) of the Freedom of Assembly Act. However, in this case, the Executive Power openly violated the law. The Executive Power refused to request on a rally on grounds that do not comply with the law and violate the plaintiffs’ right to freedom of assembly.

The Baku Executive Power refused to hold the rally, citing the fact that protesters do not have the right to express their opinion on the law already passed and signed, and the organizers did not specify an approximate number of protesters (although their approximate number was indicated in the appeal from 500 to 5000 people).

By filing a lawsuit against the Baku Executive Power in court, the plaintiffs specifically defended the right of citizens to freedom of assembly guaranteed by Article 49 (1) of the Constitution of the Republic of Azerbaijan, Article 3 of Freedom of Assembly Act of the Republic of Azerbaijan and Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
According to Article 11, Clause 1 of the European Convention, everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of own interests. Clause 2 of article 11 of the European Convention provides for restrictions on the right to freedom of peaceful assemblies. This list includes the following restrictions:
· If provided by law;
· Necessary in a democratic society;
· In the interests of national security;
· In the interests of public order;
· For the prevention of disorder and crime;
· For health and morals;
· Protection of the rights and freedoms of others.  
None of these restrictions could be used to refuse a peaceful protest rally to change in the legislation.

Recognition by the judge of the Baku Administrative and Economic Court 1
Sharafat Mammadova a lawyers’ lawsuit as unacceptable openly violates Article 6, Clause 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, according to which ‘everyone in the event of a dispute over his/her civil rights and obligations, or in the presentation of any criminal charge against him/her, has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’

Just this right to consider the claim by an independent and impartial court was rudely violated by Judge Sharafat Mammadova.