101. Kyrgyzstan declared itself a democratic state that will ensure the rule of law, inviolability of basic human rights and freedoms, protection of lawful interests of the individual and mutual responsibilities of the state and citizens. Relevant legal mechanisms and national programs that are constantly being improved and supplemented support the provisions of the Constitution of the Kyrgyz Republic on human rights and freedoms. Thus, in 2001 the Decree of the President, On Measures to Strengthen the Effectiveness of Ensuring the Rights and Freedoms of the Human Being and the Citizen in the Kyrgyz Republic, was adopted, and in early 2002 the National Program, “Human Rights”, was approved for the period of 2002-2010, as well as the Action Plan for its implementation. Protection of the declared rights and freedoms of the citizen, and effective implementation of corresponding national programs guaranteeing them, are directly related to the efficient work of the judiciary and law enforcement institutions of the State.
102. In recent years, the judiciary system of Kyrgyzstan, which includes the Constitutional Court, Supreme Court and local courts of general jurisdiction, Highest Arbitration Court and local arbitration courts, has been subjected to changes in quality. Fundamental codes and laws regulating economic and social processes under the new conditions have been drafted and put into force. The Decree of the President, “On Measure to Ensure Operations of the Judiciary System of the Kyrgyz Republic”, stipulates that one of the major directions of the legislative policy is drafting and adoption of regulations and laws by:
· envisaging effective measures of implementation of unconditional judicial protection of citizens’ rights and freedoms in accordance with Article 38 of the Constitution of the Kyrgyz Republic;
· establishing a guarantee for implementation of citizens’ interests in the sphere of constitutional civil, administrative and criminal court proceedings; and
· ensuring an effective mechanism for independent and responsible administration of justice by judges of the judiciary system of the Kyrgyz Republic.
The constitutional laws, On the Status of Judges of the Kyrgyz Republic and On the Status of Courts of the Kyrgyz Republic, legally establish the status of judges and courts of Kyrgyzstan, the laws, On the Supreme Court of the Kyrgyz Republic and Local Courts of General Jurisdiction and On the System of Arbitration Courts of the Kyrgyz Republic, regulate the procedure of organization and activities of corresponding courts. Laws of the Kyrgyz Republic establish the independence of judges.
There are no restrictions imposed on citizens to address the courts for protection of their violated rights. New categories of cases have appeared, on the protection of the right to private property, the right to vote, on appeal against regulatory and legal acts, as well as on actions and decisions of government bodies. New procedural standards have been adopted that regulate the relationship of the parties to civil, criminal and arbitration proceedings, establish the principles of justice administration, an adversary character of the judicial process, and the right of appeal has been introduced.
Decrees of the President of the Kyrgyz Republic have been issued to improve financial, material and technical support for the judiciary system. The Training Center of Judges of the Republic has been established, which provides training and refresher courses for judges and the court staff. Positive developments have been registered recently in terms of financing and material and technical support of courts, salaries of judges and court staff have been increased significantly.
103. Under the market economy, the role of the arbitration courts has increased considerably. At present, the system of arbitration courts includes 7 oblast arbitration courts, the arbitration court of Bishkek City and the Highest Arbitration Court, which integrates three judicial instances (original, appellate and supervisory). Sixty qualified judges work in arbitration courts, resolving more than 3,000 of the most complicating disputes each year. In recent years, with the support of the Asian Development Bank, within the framework of the project, Corporate Governance-1, the technical capacity of arbitration courts has been strengthened significantly. Arbitration courts are mainly provided with the buildings corresponding to their status, courts machinery operates rather effectively, working places of the judges are computerized. Decisions of the arbitration courts are published electronically on the Internet.
An analysis of arbitral practice shows that each year the number of individuals addressing arbitration courts to protect violated rights and legal interests is growing; new categories of civil and legal conflicts appear that did not exists in the times of planned economy, and that impede the development of entrepreneurship. The number of lawsuits filed by legal entities and individual entrepreneurs against public administrative bodies, foreign investors against non-diligent local business partners, is increasing. The number of creditors’ demands of debtors on establishment of their insolvency and conducting bankruptcy procedures has increased.
104. Congresses of Judges of the Kyrgyz Republic and the Congress of Barristers of the Kyrgyz Republic have became important public institutions considering major directions of the judiciary reform, improvement of the level of protection of rights and freedoms stipulated by the Constitution of the Kyrgyz Republic. During recent years, 4 congresses of judges have taken place, which discussed the most pressing problems of development of the judiciary system, improvement of its efficiency, and outlined the plans on priority directions of forthcoming reforms. The first Congress of Barristers, which took place in July 2002, considered a complex of issues on protection of rights, freedoms and legal interests of citizens. Recommendations of the congresses are put in practice through drafted and adopted laws.
105. Adoption of the Law on the Third Party Arbitration Courts in the Kyrgyz Republic became a principally important step in ensuring the rule of law, prompt and justified resolution of economic disputes. This will allow plaintiffs to overcome the monopoly of state courts on resolution of all types of disputes between citizens, legal entities and public administration bodies.
106. However, the law enforcement and judiciary system of the Kyrgyz Republic have accumulated serious problems that require solution. There are cases of violation of the constitutional rights of citizens and economic entities by governmental bodies. Such facts are not always addressed adequately and in a timely way by law-enforcement bodies and courts. There are cases of corruption, embezzlements, bureaucracy and professional incompetence of the staff in law enforcement agencies and courts. The judiciary system is not always accessible to poor strata of the community. These extremely negative phenomena, underlined in annual addresses of the Constitutional Court about the situation on constitutional lawfulness, as well as in surveys and public polls carried out by local and international organizations, undermine the citizens’ confidence in the State. A negative image of out country is being created that hinders the attainment of the objectives of sustainable development and poverty reduction. The population’s trust in law enforcement and judicial bodies has decreased drastically. This is proved by complaints and appeals of the citizens, publications in mass media, reports of non-governmental organizations on the situation of legal safety in the society.
Decreasing trust in the judicial system and its inefficiency is connected with the flowing basic factors:
· non-transparent mechanism of formation of the judiciary establishment;
· non-transparent actions of judges when executing administration of justice;
· insufficient qualification of judges in certain categories of court cases;
· lack of necessary capabilities to confront arbitrariness on the part of judges;
· insufficient legal framework of pre-trial settlement of disputes, including those with involvement of the court;
· lack until recent time of extra-judiciary forms for resolution of economic disputes, in particular, third party arbitration courts;
· limited accessibility to justice for individuals and legal entities due to financial reasons; and
· weakening of the authority of higher court actions when carrying out judiciary supervision and forming uniform judiciary practice.
These factors indicate a need for drastic reforms in the law enforcement and judiciary system of the country.
107. The major directions of the envisaged reform of judiciary and law enforcement institutions for the coming years will be to ensure through the institutions of the State, protection and strict observance of the rights and freedoms of human beings, as established by the Constitution of the Kyrgyz Republic. The goal of the intended reforms will be comprehensive improvement of law enforcement activities of the prosecutors’ offices, law enforcement bodies and the judiciary system. The following should be established:
· strong, authoritative, powerful, self-sustainable and really independent judiciary system, which is completely open for the community; and
· law enforcement bodies acting strictly within the law, promptly and efficiently preventing any violations of the law.
All governmental institutions, the judiciary and the law enforcement system will be oriented to:
real ensuring of rights and freedoms of the citizen;
further development of civil society institutions, ensuring implementation of human rights;
establishment of a lawful state as a mechanism of protection of human rights and freedoms and promotion of further development of the civil society; and
ensuring equal opportunities for carrying out entrepreneurial activities and protection of the rights and legal interests of both domestic and foreign investors.
108. In 2001, a specially established advisory group with participation of lawyers of government agencies and NGOs, with the support of the Asian Development Bank, conducted a survey that developed recommendations aimed at further reforming of the judiciary system. This survey has been approved by the order of the President of the Kyrgyz Republic and has become the basis for implementation of future reforms in this sphere. A uniform policy on the judiciary system reform will be aimed at:
· improvement of the court structure;
· further strengthening of independence of courts;
· improvement of the proceedings legislation;
· changes in the existing jurisdiction and broadening of the powers of courts of appeal;
· improvement of court supervision;
· upgrading training for legal staff, as well as strengthening the judicial system with highly professional personnel of judges and court staff;
· providing courts with necessary financial and material and technical resources;
· tightening requirements to judges on fulfillment of their professional duties and compliance with the Code of Judge’s Honor of the Kyrgyz Republic;
· introduction of an effective mechanism of disciplinary responsibility of judges; and
· ensuring implementation of the principles of publicity and openness of justice.
109. The Program of court reforms envisages the following major measures.
Establishment of the principle of an elected judiciary. According to the existing legislation, all judges in the Kyrgyz Republic have an equal legal status. In this connection, the mechanism of formation of the judiciary establishment should be uniform. All local judges to be elected by a representative body of the State, the Assembly of People’s Representatives of the Jogorku Kenesh of the Kyrgyz Republic, will be introduced. At the same time, it is planned to liquidate the system of attestation of practicing judges and introduction of a preliminary qualification exam for those aspiring to the post of judge. Such measure will serve as a positive factor for both selection of the most professionally trained candidates to the judge’s position, as well as strengthen judges’ independence from possible influence by public administration bodies. Draft laws on introduction of amendments and addenda to the Constitution of the Kyrgyz Republic, Laws On the Status of Judges of the Kyrgyz Republic and On the System of Arbitral Courts of the Kyrgyz Republic will be prepared.
Re-establishment of the principle of direct participation of people’s representatives when administrating justice. Citizens are objectively interested in substantiation and lawfulness of court decisions, and their fairness. Introduction of citizens to court hearings, given their increased activities in public and political life, should objectively serve as a factor to promote the trust of the community in courts, protecting professional judges from taking unscrupulous and unjustified decisions. Introduction of the institute of associated judges will become an effective mechanism of public control over courts’ activities. Amendments and addenda will be introduced to the Arbitral Proceeding Code and the Law on the System of Arbitration Courts, while the Law on Arbitration Judges has been introduced.
Ensuring accessibility of justice for all strata of the population, including all entrepreneurship subjects. Pursuant to Article 38 of the Constitution of the Kyrgyz Republic the State shall guarantee judicial defense of all right and freedoms of citizens. This protection shall be complete, unconditional and immediate. In order to ensure equal opportunities for access to the protection of the courts, the procedure of levying state fees will be changed. State fees will be levied upon completion of court proceedings on the guilty party in civil and legal conflicts. Corresponding amendments will be introduced to the legislation.
Reasonable reduction in duration of court proceedings. All lawsuits shall be considered strictly within the timeframe envisaged by the legislation. In this connection the following will be considered:
granting to the Highest Arbitration Court the authority, in terms of arbitration cases considered by the first and appellate instances, to take new final decisions that will not be subject to appeal; and
introduction into arbitral proceedings of specialization of judges, panels of judges of the Highest Arbitration Court, panels of judges of the Highest Arbitration Court, injunction (simplified court proceedings) and the position of the assistant judge.
Promotion of activities on establishment and development of extra-judicial forms for resolution of economic disputes. It is planned to create conditions for formation and effective work of the third party arbitration courts. It is intended to consider the issue about establishment of quasi-judicial bodies, set up within fiscal bodies for the purpose of pre-trial settlement of disputes arising with payers of taxes and fees.
Introduction of public control over activities of judges, strengthening of internal systemic judicial control. Existing judiciary rules and procedures, imperfection and contradiction of the effective substantive legislation objectively create the grounds for possible judiciary arbitrariness. Without rejecting the right of the judge of moral certainty and understanding of the legal standards to take decisions on court matters, it is necessary to strengthen the role of higher courts on elaboration of a uniform court judicial practice, uniform application of the legislation. Another important aspect is granting a right to the juridical community (qualified panels of judges) to apply disciplinary measures in relation to non-diligent judges. This will become an effective tool for eradication of corruption, reduction of court delays, and obviously inadequate application of the law when considering cases.
Strengthening responsibility for non-compliance with court decisions. It is planned to radically reform in the execution of court decisions, to introduce stricter measures of enforcement, including tightening of criminal prosecution, attachment of special law enforcement subdivisions to the service of court executive officers, providing them with more freedom on the issue of independent execution of court decisions. Reforming of the judiciary system will be implemented with the support of the Asian Development Bank within the framework of the project, Corporate Governance –2.
110. Much attention is paid to the issues of legal information of the judiciary system. It is intended to considerably develop the established electronic system of dissemination of legal information, ensure broad access to it for the community. To establish an effective judiciary system, it is necessary to publish all court decisions and ensure that the community has free access to these decisions (except for those containing a state secret, as well as on the cases considered in camera). In this connection, the Supreme Court of the Kyrgyz Republic, with the support of the World Bank, will implement the concept of uniform information and legal base of the courts of general jurisdiction and its implementation as part of the judiciary reform being conducted in the Republic.
Establishment of a uniform information and legal basis of the courts of general jurisdiction will achieve the following positive developments:
· improved effectiveness when organizing the work of courts (time saving, elimination of red-tape) and their functioning, including personnel, financial and budgetary issues and review of court procedures;
· effective control over judges’ activities for the purpose of reducing violations of court proceedings (time period for consideration of lawsuits, exemption of illegal replacement, annulments of court decisions taken earlier, etc.);
· ensure access of court staff to information and reference materials (legal acts, court decisions, etc.);
· ensure communication between courts through allocated communication lines and electronic exchange of documents through e-màil;
· access of the court staff to electronic data of other subscribers, as well as resource of the Internet;
· operational and effective control over execution of court decisions;
· ensure transparency of court proceedings by providing the community with broad access to court decisions; and
· circulation of regulations and reference documents to oblast and rayon courts.
111. Law enforcement bodies will take measures to strengthen law and order, to ensure more completely the safety of citizens, strengthen the fight against corruption, organized crime, and theft and bribe taking. Preventative capacity to deal with all types of violations will be strengthened, aimed at elimination of causes and conditions of crime. The measures connected with implementation of the state program on combating crime, as well as identification and eradication of corruption among the staff of law enforcement bodies will be strengthened. For this purpose, it is intended to carry out organizational and functional changes in the structure of law enforcement bodies in order to improve prevention of crime, operation and search and investigation activities. Measures will be undertaken to strengthen the material and technical support of internal affairs bodies, public prosecution bodies, courts, to improve living conditions, special welfare of their staff and raise in their salaries.
112. To democratize society, a more complete observation of citizens’ rights and ensuring compliance with international standards, a decision has been taken to transfer the penitentiary system from the Ministry of Interior to the Ministry of Justice. Measures are planned to further improve the penitentiary system.
113. The bar will be strengthened significantly. At the same time, the standards set by the Law on Advocacy, shall be complied with in full. It is planned to develop and implement a mechanism of labor compensation for attorneys for the assistance provided by them to poor citizens, to establish a system of training and refresher courses for advocates, to promote the development of principles of self-governance in the bar.