Half-measures: Azerbaijani judicial reform brings ‘no independence’ from government

The amendments to the law On Courts and Judges adopted by the Azerbaijani Parliament on Tuesday are supposed to ensure the independence of the judiciary. However, lawyers believe that the independence of the judiciary is impossible while it depends on the executive branch.

On Tuesday, the National Assembly of Azerbaijan adopted the amendments to the law On Courts and Judges, which foresees a creation of commercial courts and an increase of judges’ salaries.

The Parliament also adopted amendments to the tax code, according to which all compensation payments to judges in Azerbaijan will be exempt from income tax. Additionally, the monthly salary of the chairperson of the Supreme Court will be made equal to the monthly salary of the chairperson of the Parliament.

The amendments to the law followed the decree of the president of Azerbaijan, Ilham Aliyev, ‘On deepening reforms in the judicial legal system’ signed on 3 April, which also foresees an increase of the number of judges in Azerbaijan by 200 — to 800 in total.

The changes in judicial system started even earlier, when, in September 2018, over 100 judges of courts of first instance and appellate courts were dismissed due to ‘mistakes and violations’, as the minister of justice, Fikrat Mammadov stated at a regional meeting in the northwestern Aghstafa District. In November, the Parliament appointed new judges for 26 vacant seats in the appellate and supreme courts.

The reform of Azerbaijani judiciary is also supported by the long-term Partnership for Good Governance programme of the Council of Europe, and aims to strengthen the judicial capacity of Eastern Partnership countries — with the exception of Belarus, which is not a member of the Council.

The essence of the changes

According to the amendments, administrative-economic courts will be abolished and replaced with separate administrative and commercial courts. It is assumed that the new commercial courts will deal with business activities, such as tax disputes and customs duties.

Commercial courts will be considered as courts of first instance, consisting of a chairperson and judges. In the case that the number of judges exceeds twelve, the post of deputy chairperson of the commercial court will also be created.

Erkin Gadirli, an expert in criminal and international law and the Chairperson of the Assembly of the opposition Republican Alternative Party (ReAl), told OC Media that the creation of commercial courts is simply a renaming of economic courts.

According to him, with the growth of administrative services rendered by the state, the number of administrative cases noticeably increased and, as a result, administrative-economic courts had become overloaded. In order to relieve them, it was decided to separate them. At the same time, ‘economic courts’ were renamed as ‘commercial courts’.

‘“Economic” denotes a more general concept, while “commercial” is more practical and a more acceptable term. And this name is more correct’, he said.

The only improvement the new commercial courts may bring, according to Gadirli, may be connected with the speed of solving cases.

At the same time Gadirli hailed the increase in, and tax-exemption of, judges’ salaries — noting that, in addition to serving the goals of anti-corruption, this decision was also aimed at increasing the amount of public funds allocated to the judicial system. At the moment, Azerbaijan ranks last among the 45 member states of the Council of Europe.

As for the reason for the reforms in the Azerbaijani judiciary, Gadirli spoke of the desire to attract foreign investment to the country.

‘When the president announced in the spring that there was an urgent need for judicial reform, he certainly said this so foreign investors could hear it […]. It was not meant for a domestic audience, but for a foreign one[…] So I think that these are the first steps towards creating judicial protection for foreign investments’.

After the oil boom is over, it’s true that there will still be natural gas, but there is not such a large quantity of it that it could compete with oil revenues or supplant them somehow. We need significant investments into other sectors of the economy. And private investors look, first of all, at the state of the judicial system’,  said Gadirli.

‘Less political interference’

Gadirli told OC Media that Azerbaijan’s judiciary faces for more serious problems, such as political interference in the work of the courts, and that renaming of courts and increasing salaries may not solve this problem.

‘Ironically, it’s possible that now there will be less political interference. Before the economy was more pluralistic — in terms of oligarchisation. Now, there are fewer oligarchs with such large economic opportunities.  Now, the majority of big economic opportunities are held in a single set of hands’.

‘True, it also leads to the absolutisation of political power. But in this case, it is possible that the courts will receive fewer instructions from political bodies in the government, because when economic opportunities are monopolised in one set of hands and there are far fewer oligarchs on the market than before, then the political authorities are not very interested in who wins the dispute. Because, one way or another, the disputing parties belong to the same group of people’, said Gadirli.

‘Courts are not mechanisms’

Eldar Zeynalov, the head of the rights group Human Rights Centre of Azerbaijan, told OC Media that the president’s decree is continuation of a line adopted in 2017 on decriminalisation, and the making of a more humane criminal policy — as a result of which, 9,000 people were released at the stage of investigative and judicial proceedings and the charges of 1,800 prisoners were dropped.

‘But the problem is that the courts are not simply mechanisms that will function perfectly so long as they are assembled according to a tried-and-tested European scheme and “accompanied” with high salaries and privileges for judges. They are composed of human beings, and if only for this reason, there is no guarantee that there won’t be corruption and “telephone justice”. And here, in the human factor, judicial reforms can fail, and justice can be violated’, he said.

Zeynalov also questioned the criteria for evaluating court performance, suggesting that certain indicators, such as the number of acquittals by the courts, are unlikely to be useful to evaluate the courts’ work.

‘For example, in 2017, 87 defendants were acquitted, which is 11 times more than in 2007. But if you compare these 87 acquittals with 11,356 convictions for the same period (1 out of 130 defendants are acquitted), then the feeling of progress is already blurred’,  he noted.

According to him, there is not always enough information for a deep analysis of the courts’ performance. ‘For example, there is no information on the National Statistics Committee’s website about which types of criminal cases most often end with acquittal’, he told OC Media.

‘In cases of alleged political prisoners, during the [entire period of the] independence of Azerbaijan, not a single person has been acquitted’, Zeynalov said. ‘This is a category of cases, which crosses a “red-line” for judges, and in which decisions are made at a different level’.

However, he also noted that, in those court cases where the authorities do not have a political interest, it is already possible to achieve justice.

‘True, another problem arises here — legal illiteracy […] and the lack of a sufficient number of lawyers. But something positive can be observed here — after the change in leadership of the Bar Association, the number of lawyers almost doubled. Although, this is still not enough for 10 million people. In some rural areas we had no lawyers at all, and now law firms are opening everywhere’.

‘Completely dependent on the executive power’

Azar Jafarov, the Deputy Minister of Justice of Azerbaijan, said on Tuesday that Azerbaijan is trying to ensure the independence of the judicial system, and that the improvement of its legislative base is a means towards that goal.

He noted that the number of judges, employees of the judiciary, and lawyers in the country have increased; that their financial and social protection was strengthened; and that court budgets have been raised.

Intigam Aliyev, the head of Legal Enlightenment Society, an Azerbaijani human rights group, told OC Media that ensuring the independence of the judicial system is impossible so long as the judicial system is totally dependent on executive power.

‘Today the courts in the country are completely dependent on the executive branch, [they] are corrupt, and to a greater degree have become an instrument for settling scores with dissidents. It doesn’t seem real that the authorities would turn away from such an approach  for one simple reason: an independent judiciary is a very dangerous thing for an authoritarian administration. It can gradually destroy it’, he said.

Aliyev noted that if there is no political will among the authorities for the existence of an independent judiciary, ‘all laws, orders, and negotiations with the Council of Europe, the EU, and other powerful international forces, will be reduced, at best, to declarations, manipulations, and other kinds of games’.

‘On the other hand, the judiciary cannot be fair and independent on its own.’ Aliyev said.

‘It also requires independent legislative power, media, advocacy, political pluralism, separation of powers and much else. These are the things which are called by the terms “human rights”, “democracy”, and “the rule of law’’ ’.