Postcard from Bishkek

Last week it was announced that a high level delegation of representatives of the Kyrgyz criminal justice system is visiting the UK to learn about the British justice system as part of the UK-Kyrgyz Criminal Justice Dialogue project funded by the British Embassy Bishkek.

In Kyrgyzstan, judicial authority can only be administered by the courts and, according to the constitution, all citizens of the republic have the right to participate in the administration of justice … although there have been some considerable concern expressed about the impartiality and fairness of the system over the years.

At the moment, I don’t want to get drawn into that debate, but I thought it worth looking at the overall system.  

The courts are organized in a hierarchy:

Courts of “the first instance” are the district (or Rayon) courts.  There are some 78 such local courts, presided over by a single judge who listens to arguments before delivering their decisions .   They usually hear civil and commercial cases in chambers rather in courtrooms – although criminal cases are held in courtrooms with a cage around the dock.  The deliver the decision orally and later produce the judgement summarizing the arguments after a short period of a few days.

In the event that the losing party wants to dispute the decision, they can address the respecitve  Appeal court which are based at the oblast level, (and in Bishkek and Osh at the city level).  

Each of these courts consists of three judicial divisions: one for criminal cases and cases of administrative violations, a division for civil cases and a division for administrative and commercial cases.

Judicial divisions of appellate courts review the decisions of the lower court that have not yet come into legal force – there is a time limit (one month) for making an appeal.  They can also act, however, as a “cassation instance”, revising judicial acts that have already come into legal force.

Hearings of cases are presided over by a “bench” consisting of three judges drawn for a panel of specially appointed judges, who listen to arguments before delivering their judgement.  After considering the arguments, they read their judgement orally in the courtroom, later producing a written statement summarizing the arguments that were presented and their decision.  

 

In the event that the losing party wants to dispute the decision, then they can appeal to the Supreme Court, which is the highest court of appeal in the country.  Cases are also presided over by a “bench” of three judges drawn from a panel of specially appointed Supreme Court judges, who sit in one of the court rooms in the Supreme Court building in Bishkek.

  

Until the revolution of 2010, there was also a Constitutional Court which was the highest in the land, dealing primarily with constitutional law and interpretation of the constitution in given cases.  It was composed of nine sitting justices who decided on whether or not laws that are challenged or were in fact unconstitutional, i.e. whether or not they conflict with constitutionally established rights and freedoms.  

Its decisions have not, however, been without controversy – such as the decision that President Akaev’s first term as President of the Khirghiz SSR (from 1990 to 1995) was under a different constitution and so did not disqualify him from standing in the 2000 presidential election despite the fact that the this constitution limited a President to serving just two terms of office.

The Constitutional Court was abolished in 2010 with the adoption of the new Constitution following the revolution of April 7th, and its powers transferred to the Supreme Court.

 

In addition, there are also special Military courts, Air Courts and Third party courts may be established for arbitration in commercial disputes.   and a system of traditional informal courts outside the formal hierarchy, known as Aksakal Courts, presided over by elders.

Aksakal Courts

The term, “Aksakal Courts” literally translates as “White Beard Courts”, and is used for a court, or council, of elders which is authorized to consider certain types of legal cases. Traditionally, these local community “courts” consisted of the oldest men in the village, who make decisions as if an elected town council.  Today, they are regulated by the terms of the constitution, decrees of the President issued in 1995 and 1997, and a law promulgated by the Jogorku Kenesh, (Parliament), in 2002.

They are established on the basis of one court per community, (a village, or district in a larger town or city), and comprise of between five and nine respected elders of the community who are elected at an open meeting of the community to serve for three years.  The election is conducted by a show of hands amongst the “heads of households” belonging to the community.    Because they are elected from within the community, members of aksakal courts are usually people with a rich “life experience”, who are respected by village residents and have extensive local knowledge.

They have the power to judge on moral and family decisions that may be in dispute, and certain limited issues such as disputes about contracts of employment and land disputes, or matters which are referred to them by the local prosecutor’s office.   Often, cases involving minors under the age of 14 are referred to them.

The courts provide a convenient and “democratic” form of dispute resolution. They do not charge fees for hearing cases and the law provides that aksakal courts should considers cases with the aim of ”reconciliation of the sides, and taking a fair decision which would not contradict the law.”

It is possible to appeal decision of the aksakal courts, to the local “judicial” court.

The aksakal courts are not, however, without controversy.  Although given limited powers, it is said that they started examining almost all forms of offences, with some surprising results.  It is claimed that corporal punishment and other “medieval punishments” (such as stoning) were reintroduced.  Indeed, Amnesty International reports that two cases of capital punishment were pronounced in the early days of the courts … and that, in one case, a man accused of extortion was tied to a post and stoned – to death.  The law of 2002 which regulates the activities of the courts, severely limited the penalties which they can now impose.

 

The Enforcement of Judgments

Under the legislation of the Kyrgyz Republic, the power to enforce decisions, rulings, and resolutions in civil, commercial and administrative cases; verdicts, rulings, and resolutions in criminal cases; in the part of property claims, rests with the “enforcement officer” of the court.

In the Kyrgyz Republic, the judicial system includes the Judicial Department of the Kyrgyz Republic, which is the agency responsible for providing material, technical and methodological support to the local courts; to ensure the enforcement of judgments and other acts provided by law and to carry out other activities aimed at creating favorable conditions for the full and independent administration of justice.

The Kyrgyz Republic has joined a number of treaties under which an interested party may address a claim to a court of the Kyrgyz Republic on recognition and enforcement of a decision issued by a court or arbitration court of another country. The principal treaties are:

• The UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958, joined by the Kyrgyz Republic in 1995;
• The Convention on legal support and legal relations of the CIS countries on civil, matrimonial, and criminal cases of 22 January 1993, which was ratified by the Kyrgyz Republic in 1995. In 2004 the Kyrgyz Republic also ratified the Convention on legal support and legal relations on civil, matrimonial and criminal cases of 7 October 2002;
• A number of bilateral agreements on mutual legal support – for example, those with Azerbaijan, Iran, India, China, Latvia, Lithuania, Mongolia, Russia, Kazakhstan and Uzbekistan.

Currently, the Kyrgyz Republic recognizes and enforces:

• Decisions of other countries’ arbitration courts established subject to arbitration rules of the UN Commission for International Trade Law (UNCITRAL).
• Decisions of the courts of Armenia, Belarus, Kazakhstan, Latvia, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan on civil, matrimonial, and criminal cases.
• Decisions of the arbitration, economic and business courts of Azerbaijan, Moldova, Kazakhstan, Russia, and Tajikistan.

Judicial Reform

There has been a lot of controversy in Kyrgyzstan concerning the Judiciary system.  Apart form the examples quoted above, many people comment about the role played by corruption evident in the system – with verdicts decided in advance, (it is said that the Prosecution service achieve an almost 100% conviction rate in criminal cases that go to court – a record that can only be envied by the UKs Crown Prosecution Service or America’s District Attorneys), and often going in favour of the authorities or whoever has the deepest pockets.  

Indeed, a couple of years ago, a poll suggested that it was the country’s “most loathed institution”.  

There has been talk of the possible introduction of “jury trials” – but if that is to implemented, there will be a lot of work to ensure the success of the measure.

Already there is concern expressed in some quarters over the quality of judges.  Following the 2010 revolution, a Council for Selection of Judges was created in 2011 under the provisions of the new constitution, but the procedures of this body has also been criticized – partly  because the majority of its members are appointed by political parties.

Several of the international donor organizations are involved in trying design and implement further reform measures.

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