AZERBAIJAN'S 2008 ELECTION: LIMITED JUDICIARY

C O N F I D E N T I A L BAKU 000968

SIPDIS

FOR EUR/CARC

E.O. 12958: DECL: 10/10/2018
TAGS: PREL PGOV PBTS PHUM ENRG KIRF AJ
SUBJECT: AZERBAIJAN'S 2008 ELECTION: LIMITED JUDICIARY
INDEPENDENCE

REF: A. BAKU 00836

B. BAKU 00850

C. 07 BAKU 01252

Classified By: Ambassador Anne E. Derse for reasons 1.4 (b) and (d).


1. (C) Summary: Local legal experts state the Azerbaijani
judiciary has little independence in cases touching on the
GOAJ or Azerbaijani elites' financial and political
interests. In a political culture that favors personal
relations and closed-door meetings over transparent processes
and uniform standards, Azerbaijan's progress toward creating
a professional, independent judiciary can be short-circuited
through unseen interventions by GOAJ insiders. Still,
Azerbaijan has made real progress in reforming the selection
process for new judges and creating a cadre of more
professional, merit-based judges. Unfortunately, alongside a
more merit-based selection process, judges are still
unofficially vetted for their loyalty to the government,
according to local contacts. The Presidential Administration
also maintains an open-hand in unofficially "guiding" some
verdicts. At lower-levels, verdicts also can sometimes be
purchased through a bribe. The Embassy does not expect the
judiciary to play a significant election-related role,
although it is unlikely to be an objective party to any
potential case that would run counter to incumbent President
Aliyev's interests. End Summary.


2. (C) This cable is part of a broader series covering the
political environment before the October 15 Presidential
election. Ref A argued that Islam will have a minimal role
in the election, while ref B dealt with the GOAJ's freedom of
assembly law and the potential for large-scale rallies.
Septel will address the media freedom environment. The
Embassy met with several legal experts to hear their
perspectives on the Azerbaijani judiciary's level of
independence and the possible role the judiciary could play
in the election.

Judiciary Reinforces Elite-level Interests
--------------


3. (C) The consensus view among our human rights and legal
contacts is that in judicial matters touching on the GOAJ or
Azerbaijani elites' financial and political interests, the
Azerbaijani judiciary has little or no genuine independence.
Our contacts argued that the judiciary is best understood as
a tool to reinforce and protect the interests of the elite.
When touching upon cases with a political angle, local human
rights activist Murat Saddadinov, voicing similar concerns of
many observers, said the judiciary is best seen as part of a
broader authoritarian system, rather than an independent
avenue for redressing citizen's concerns. He was not
optimistic that election-related complaints, should they
materialize, would be given a fair hearing in Azerbaijan.

Selection of Judges Favors Loyalty to GOAJ
--------------


4. (C) Our contacts focused on the selection process for
judges as a key indicator of the judiciary's lack of
independence. Two local lawyers, Elchin Sadikov and Geysar
Gurbanov, explained the selection process, observing that
while it looks good on paper, the process serves as an
unofficial mechanism for vetting judges' loyalty to the GOAJ
and collecting bribes from judicial candidates. Individuals
seeking to become a judge must pass a written and oral exam,
followed by a training course, concluding with an interview
before a committee of the Judicial Legal Council -- a body
that includes representatives from the Prosecutor General,
Ministry of Justice, and other lawyers. Sadikov, Gurbanov,
and Saddadinov said the key determinant for passing this
interview is loyalty to the GOAJ. According to Gurbanov, the
formula for passing the interview includes a mixture of bribe
money, good relations with the Aliyev family, loyalty to the
GOAJ, and professional skills. Selection for higher-level
judgeships requires both a higher "entrance fee" and better
links to the Aliyev family. Another tool the GOAJ can use to
ensure the loyalty of judges is through the collegium.
Lawyers need to be registered through the collegium in order
to fully represent clients in a courtroom.



5. (C) While loyalty to the GOAJ remains a key determinant
in the selection of new judges, Azerbaijan has made genuine
progress in moving toward a system that has the potential to
create a new cadre of professional, merit-based judges (ref
C). In 2007, fifty-five new judges were appointed after
passing a reformed judicial exam process, and this year 102
judges were likewise appointed. Nonetheless, it is still
alleged that the process is vulnerable to bribery and the
unofficial vetting of a judge's loyalty to the GOAJ. Also in
2007, thirty sitting judges were dismissed for professional
shortcomings, allegedly including corruption and
incompetence. This was an unprecedented event, but the
Embassy has yet to confirm that these judges genuinely were
removed because of professional shortcomings, or rather, due
to failure to pay bribes, window-dressing for the
international community, or some mixture of all three.


6. (C) Local contacts pointed to the judiciary's
unwillingness to issue rulings against the government as an
indicator of the judiciary's lack of autonomy from political
interests. Saddadinov noted that the apex of judicial
independence was in the 1993-1994 timeframe, when a court
ruled in favor of former Defense Minister Shahin Musayev,
going against the wishes of then President Heydar Aliyev.
Our contacts argued that in the present climate, it would be
inconceivable for a judge to rule against the interests of
the ruling elite in a sensitive case. Gurbanov made the
point that the legal system permits horizontal, but not
vertical justice. In other words, Azerbaijani citizens have
the ability to bring criminal and civil suits aganst other
citizens -- although a citizen often cn purchase the outcome
with a bribe -- but it isalmost entirely impossible for an
ordinary citize to bring a case against a member of the
elite ad receive a fair verdict.

GOAJ Provides "Directves" for Some Cases
--------------


7. (C) Throughout the former Soviet Union, including in
Azerbaijan, there are a variety of mechanisms for securing a
desired verdict from a judge. When a court cases touches on
the GOAJ's interests, the Presidential Administration will
provide unofficial guidance on the outcome, according to our
contacts. The level at which the Presidential Administration
intervenes depends on the sensitivity of a particular case.
Typically, Presidential Administration Chief of Staff Ramiz
Mehdiyev or one of his staff -- especially Fuad Aleskerov --
will meet with Minister of Justice Fikret Mammadov to
directly or indirectly task the judge to issue a particular
verdict. When asked to supply evidence for this assertion,
our contacts reported that it was based on their experience
in a number of court cases over the years and that it is
nearly impossible to provide direct evidence of such meddling
by the Presidential Administration because these are
unofficial mechanisms. Their information came from
conversations with judges and lawyers.

Corruption Shapes Some other Cases
--------------


8. (C) In cases where the Presidential Administration does
not intervene, private citizens can often successfully pay
the judge for a particular outcome. In these instances, the
"payee" often uses several intermediaries to get money to the
judge. Gurbanov told us "payees" increasingly have to use
more complex cutout schemes as corruption investigations can
easily be launched against suspected "payees."

Judiciary Unlikely to Play Role in Election
--------------


9. (C) Our contacts do not believe the judiciary will play a
significant role in the run-up to the election or immediately
afterward. The level of interest in the election among the
general public and even among some politically-active members
of civil society is low. Our interlocutors highlighted that
there is a limited function the judiciary could play in
connection with the election, as the Central Elections
Commission (CEC) is the primary player and while the
Constitutional Court certifies the CEC's results, there is

the widely-held expectation that President Aliyev will easily
win the election.


10. (C) One exception to the judiciary's limited role
vis-a-vis the election is former presidential candidate Eldar
Namazov's plans to sue the government regarding the timing of
the election, although he does not believe the case will go
very far. Namazov claims the present election campaign is
illegitimate from a technical perspective because President
Aliyev did not sign the new amendments to the Election Code
until after the campaign should have started under the prior
Election Code.

Recommendations for Improving the Judiciary
--------------


11. (C) Our interlocutors were downbeat about the net impact
of Western assistance to improve the judiciary. Our contacts
argued that the unofficial mechanisms for influencing the
judiciary can easily circumvent the best Western programs.
Contacts highlighted two points of leverage with the GOAJ,
however. First, coordinated, consistent criticism by western
states in instances of blatant judicial meddling sometimes
works. Some members of the GOAJ -- most importantly,
President Aliyev -- want to be viewed as modern statesmen by
Western officials and the broader Azerbaijani public and the
judiciary's lack of independence often does not square with
this image. Second, Azerbaijani citizen's ability to appeal
to the European Court of Human Rights (ECHR) is a mechanism
that can sometimes trump a potentially unfair ruling in the
Azerbaijani judiciary. Our contacts recommended developing
programming that trains lawyers and the general public on how
to work with and appeal to the ECHR. This training is being
provided through U.S. Department of Justice programs in
Azerbaijan.


12. (C) Comment: As Transparency International recently
reported, Azerbaijan is perceived to have a serious problem
with corruption. This perception remains steadfast, despite
widespread economic reforms and growth at breakneck speed
that are taking place. Judicial reform would strike at the
heart of Azerbaijan's image problem, allowing individuals and
organizations to voice concerns and get a fair hearing.
Likewise, Azerbaijan's record on human rights would benefit
greatly from judicial reform, as journalists and others who
register complaints would have recourse. The Council of
Europe, the EU, and the OSCE agree with our assessment that
judicial reform, and the development of a truly independent
judicial system, is key to Azerbaijan's democratic
development and deserve a focused effort by international
donors. The USG, through the DRL-led democracy dialogue and
our assistance programs, should make judicial reform a focus
of our democracy and governance efforts over the coming year.
DERSE