EUROPEAN COMMISSION FOR DEMOCRACY
THROUGH LAW
(VENICE COMMISSION)
DRAFT
LAW
ON COURT JURIES
OF
KYRGYZSTAN
draft
The present Law establishes the
legal bases of participation of citizens in the dispensing of justice in the Kyrgyz Republic in the capacity of jurors.
Chapter I.
General provisions
Article 1. Right of citizens of the Kyrgyz Republic to participate in the
dispensing of justice
1.
In accordance with Article 82 of the Constitution of the Kyrgyz Republic citizens of the Kyrgyz Republic shall be entitled, in circumstances
provided for in law, to participate in the dispensing of justice.
2.
Restriction of the right of citizens to participate in the dispensing of
justice in the capacity of jurors in connection with sex, race, ethnic
affiliation, social origin, property ownership, beliefs, attitudes to religion
or membership of public associations shall not be permitted. Any restriction of that right may be
established only by the present Law.
3.
Participation in the exercise of justice in the capacity of jurors by
citizens included on lists of candidates for jury service shall be a civil
duty.
Article 2. Status of jurors
The legal situation of jurors shall
be determined by the present Law. Jurors
shall be vested with powers in the dispensing of justice under the procedure
established by the Constitution of the Kyrgyz Republic, the Code of Criminal Procedure of
the Kyrgyz Republic and the present Law.
Article 3. Legislation on jurors
1.
Legislation on jurors shall be based on the Constitution of the Kyrgyz Republic and shall consist of the Code of
Criminal Procedure of the Kyrgyz Republic, the present Law and other legal
and regulatory acts of the Kyrgyz Republic.
2.
If other rules than those set forth in the present Law are established
by an international agreement ratified by the Kyrgyz Republic, the rules of the international
agreement shall apply.
Chapter 2
Participation of citizens of the Kyrgyz Republic in the dispensing of
justice in the capacity of jurors
Article 4. Jurors
1.
Jurors shall be citizens of the Kyrgyz Republic vested with powers of dispensing
justice under the procedure established by the present Law in the examination
by courts of the Kyrgyz Republic of criminal cases regarding
particularly serious crimes within their jurisdiction.
2.
Jurors shall be involved in the examination of cases at the request of a
party admissible under the procedure established by the Code of Criminal
Procedure of the Kyrgyz Republic.
3.
The composition of a court for the examination of a given case with the
participation of a jury shall be formed under a procedure precluding any
influence on that process by persons with an interest in the outcome of the
case and shall comprise one judge and 12 jurors.
4.
The procedure for examining a criminal case with the participation of a
jury shall be established by the Code of Criminal Procedure of the Kyrgyz Republic.
Jurors participating in the exercise of justice shall be independent and
shall be subordinate only to the Constitution of the Kyrgyz Republic and the law.
Article 5. Requirements imposed on jurors
1.
Citizens included on lists of candidates for jury service and called
under the procedure established by the Code of Criminal Procedure of the Kyrgyz Republic to participate in the court
examination of a criminal case may be jurors.
2.
The following persons may not be jurors or candidates for jury service:
1)
persons who have not reached the age of 25
years at the time when lists of candidates for jury service are compiled;
2) persons who have an
outstanding or unquashed conviction;
3)
persons who have been declared legally
incapable by a court or had their legal capability restricted by a court;
4) persons who appear on the
register of a clinic treating drug addiction or psycho-neurological conditions
in connection with treatment for alcoholism, drug addiction, substance abuse,
and chronic and prolonged mental disorders.
3.
The following persons shall also not be permitted to participate in the
court examination of a given criminal case in the capacity of jurors:
1) persons suspected or
accused of committing a crime;
2)
persons not speaking the language in which the
proceedings will take place;
3)
persons presenting physical or mental
disability preventing full participation in the court examination of the
criminal case.
Article 6. General and reserve lists of candidates for
jury service
1.
The Supreme Court of the Kyrgyz Republic shall determine the necessary
quantity of jurors on a general list and reserve list of candidates for jury
service every two years, incorporating the number of citizens permanently
resident on the territory of the Kyrgyz Republic required for the work of a
corresponding court.
2.
The number of citizens to be included in the general list of candidates
for jury service of the Kyrgyz Republic shall be determined on the basis of
a calculation of no fewer than five jurors for one judge.
3.
The number of citizens to be included in the reserve list of candidates
for jury service shall be no less than one quarter of the number of jury
service candidates to be included in the general list of candidates for jury
service.
Article 7. Procedure and deadline for compiling lists of
candidates for jury service
1.
The President of the Supreme Court of the Kyrgyz Republic shall, no
later than three months before expiry of the term of validity of candidates for
jury service previously included on the general and reserve lists of candidates
for jury service, file a request with the heads of state administrations of the
oblasti [provinces], the mayors of the cities of Bishkek and Osh and the
mayors of towns of oblast significance on the selection of the necessary
number of candidates for jury service.
2.
The heads of state administrations of the oblasti, the mayors of
the cities of Bishkek and Osh and the mayors of towns of oblast
significance shall, in accordance with Article 7 paragraph 1 of the present
Law, establish the procedure and deadline for compiling lists of candidates for
jury service and notify the district/municipal authorities of the number of
citizens required for inclusion in the lists of candidates for jury service
from the corresponding territorial administrative unit. In the compiling of lists of candidates for
jury service, the number of citizens assigned may be increased by no more than
10 per cent.
3.
Lists of candidates for jury service shall be compiled by
district/municipal administrations on the basis of personal data on voters
contained in the information resources of the state system of the Kyrgyz Republic pertaining to elections, by means
of random selection of the established number of citizens. In that process, the individuals ineligible
for jury service under Article 5 paragraph 2 of the present Law shall be
excluded from the sample of citizens selected.
4.
District/municipal administrations shall inform citizens of the
corresponding territorial administrative unit of the compiling of lists of
candidates for jury service and also notify the citizens included on the lists
of candidates for jury service and, within a period of two weeks, shall enable
them to examine the aforementioned lists and shall consider any written notifications
received from them concerning the exclusion of citizens from lists of
candidates for jury service and rectifications of inaccurate information on
candidates for jury service.
5.
The amended lists of candidates for jury service, signed by the heads of
district/municipal administrations shall be submitted to the corresponding
state administrations of oblasti, the mayors of the cities of Bishkek
and Osh and the mayors of towns of oblast
significance.
6.
On the basis of the lists of candidates for jury service submitted by
district/municipal administrations, the administrations of the oblasti,
the mayors of the cities of Bishkek and Osh and the mayors of towns of oblast
significance shall compile a general list of candidates for jury service of the
Kyrgyz Republic, which shall be signed by the President of the Supreme Court of
the Kyrgyz Republic and authenticated by an official stamp.
7.
Concurrently with the compiling of the general list of candidates for
jury service, the administrations of the oblasti, the mayors of the
cities of Bishkek and Osh and the mayors of towns of oblast
significance shall compile a reserve list of candidates for jury service. This list shall include only citizens
permanently resident in the locality of the permanent site of the corresponding
court.
8.
The reserve list of candidates for jury service shall be signed by the
head of state administration of the oblast or the mayors of the cities
of Bishkek and Osh or mayors of towns of oblast significance and
authenticated by an official stamp.
9.
The general and reserve lists of candidates for jury service shall be
published in the corresponding local media, giving only surnames, first names
and patronymics.
10.
Citizens shall be entitled to submit written notifications to the
administrations of oblasti, the mayors of the cities of Bishkek and Osh or the mayors of towns of oblast
significance concerning the unfounded inclusion of candidates on lists for jury
service, their exclusion from lists or rectification of inaccurate information
on candidates for jury service in these lists.
11.
The administrations of oblasti, the mayors of the cities of
Bishkek and Osh or the mayors of towns of oblast significance shall
consider the submitted written notifications within five days and take
decisions, which may be appealed against in court under the procedure
established by civil procedural legislation.
12.
Amendments and additions made to the general and reserve lists of
candidates for jury service shall be published in the corresponding local
media.
13.
Oblast and district administrations, the mayors of the cities of
Bishkek and Osh and the mayors of towns of oblast significance shall be
under obligation, on an annual basis (or within a shorter period at the request
of the president of a court), to check and, where necessary, amend and
supplement lists of candidates for jury service in accordance with the present
article, excluding from them citizens having lost the right to be jurors and
including in them additionally selected individuals.
14.
The financial provision for the powers assigned to district/municipal
administrations to compile lists of candidates for jury service shall be drawn
from the state budget under the procedure and in the proportions defined by the
Government of the Kyrgyz Republic.
Article 8. Obligations of officials and leaders of
organisations to submit information for the compiling of lists of candidates
for jury service
1. Officials and leaders of organisations, of
whatever organisational/legal form, shall be under obligation to submit
information necessary to the compiling of lists of candidates for jury service
at the request of district/municipal, oblast and district
administrations, the mayors of the cities of Bishkek and Osh and the mayors of towns
of oblast significance.
2.
For any failure to submit information necessary to the compiling of
lists of candidates for jury service and also for the submitting of information
known to be false, the individuals referred to paragraph 1 of the present
article shall bear liability as established by the Code of the Kyrgyz Republic governing administrative liability.
Article 9. Exclusion of citizens from the general and
reserve lists of candidates for jury service
Citizens included in the general and
reserve lists of candidates for jury service shall be excluded from those lists
by oblast administrations, the mayors of the cities of Bishkek and Osh and the mayors of towns of oblast
significance in the event of:
1) discovery
of circumstances referred to Article 5 paragraph 2 of the present Law;
2) submission
by the citizen of written notification of circumstances preventing them from
fulfilling jury service obligations, as they are:
a) an
individual not speaking the language in which the proceedings will take place;
b)
an individual unable to fulfil the duties of a
juror owing to their state of health, attested to by medical certificates;
c)
an individual having attained the age of 65
years;
d)
an individual occupying official or elective
office in local authorities;
e)
a military serviceman;
f)
a judge, prosecutor, preliminary criminal investigator, preliminary
investigator, lawyer, notary or commissioned officer of the internal affairs
agencies, narcotics control agencies, court bailiff services, customs
authorities, authorities and establishments of the criminal sentence
enforcement system or an individual carrying out private detective work on the
basis of a special permit/licence;
g)
a member of the clergy.
Article 10. Sending to the court of general and reserve
lists of candidates for jury service
1.
The general and reserve lists of candidates for jury service compiled by
oblast administrations, mayors of the cities of Bishkek and Osh or
mayors of towns of oblast significance shall be sent to the
corresponding court no later than one month before expiry of the validity of
candidates for jury service included in the previously submitted general and
reserve lists of candidates for jury service.
2.
Amendments made to the general and reserve lists of candidates for jury
service in accordance with Article 7 paragraph 13 of the present Law shall be
sent to the corresponding court within one week.
3.
In the event of discovery in the general and reserve lists of candidates
for jury service received by a court of any individuals referred to in Article
5 paragraph 2 of the present Law or individuals having made written application
for exclusion from lists of candidates for jury service in accordance with
Article 9 paragraph 2 of the present Law and also in the event of those lists
having to be supplemented, the President of the Supreme Court of the Kyrgyz
Republic shall file a request stating the necessity of supplementing the
general and reserve lists of candidates for jury service with oblast
administrations, mayors of the cities of Bishkek and Osh or mayors of towns of oblast
significance.
Article 11. Procedure and durations governing a citizen's
performance of jury service
1.
Citizens shall be called to perform jury service in a court once a year
for ten working days or, where the examination of a criminal case has commenced
with the participation of jurors and not been completed by the expiry of that
period, for the entire duration of the examination of that case.
2.
Candidates for jury service called to the court but not selected as
members of the jury and not released from jury service on the grounds provided
for in Articles 5 and 9 of the present Law may be required to participate as
jurors in another court session.
Chapter 3
Legal and material
guarantees of the status of court assessors and jurors and final provisions
Article 12. Material guarantees for jurors
1.
During the performance of jury service by a juror in the exercise of
justice, the corresponding court shall pay them compensation drawn from the
state budget amounting to half of the official rate of pay of a judge of that
court in proportion to the number of days of the juror's participation in the
exercise of justice, but no less than the average wage of a juror in the place of
their main work for that period.
2.
In the event of a juror travelling away from their permanent place of
residence to perform jury service, their trip expenses shall be reimbursed
under the procedure and in the proportions established for judges on official
trips within the Kyrgyz Republic.
3.
The amount of money necessary for the payment of jurors as provided for
in paragraphs 1 and 2 of the present Article shall be supplied by the Ministry
of Finance of the Kyrgyz Republic to the Supreme Court of the Kyrgyz Republic
and shall be shown as a separate entry in the expenditure of the Supreme Court
of the Kyrgyz Republic.
4.
The guarantees and compensations provided for in labour legislation
shall be maintained for the juror throughout the period in which they perform
service in the exercise of justice at their main place of work, and the
dismissal of the juror or their transfer to other work at the initiative of the
employer in that period shall not be permitted.
5.
The time spent by jurors on jury service in the exercise of justice
shall be taken into account in the calculation of any periods worked.
Article 13. Guarantees of independence and immunity of a
juror
1.
The guarantees of independence and immunity of judges and members of
their family established by the Constitutional Law "On the status of
judges of the Kyrgyz Republic" shall be extended to jurors
and members of their family while they are exercising justice.
2. Persons hampering a juror in the fulfilment
of their duties in the exercise of justice shall bear liability under the
legislation of the Kyrgyz Republic.
Article 14. Final and transitional
provisions
1. The present law shall enter into force from
the date of its official publication.
2.
Lists of candidates for jury service for courts in which the legislation
of the Kyrgyz Republic provides for examination of
criminal cases with the participation of a jury shall be compiled within three
months dating from the entry into force of the present Law.
3.
The Government of the Kyrgyz Republic shall make provision:
- in the
republic budget for expenditure linked to the implementation of the present
Law;
- for
bringing its legal and regulatory acts into line with the present Federal law.
Explanatory memorandum to the draft Law of the Kyrgyz Republic "On court juries
in the Kyrgyz Republic"
Under Articles 15 and 82 of the
Constitution of the Kyrgyz Republic of 15 January 2007, in circumstances and
under the procedure provided for in law, citizens of the Kyrgyz Republic are
entitled to participate in the dispensing of justice and everyone has the right
to examination of their case by a court with the participation of a jury in
circumstances provided for in law.
One of the fundamental aims of
courts with juries is to bridge the gap between the judicial system, courts and
society and therefore serve as a mechanism contributing to a healthier judicial
system.
The introduction of a court with a
jury is intended to strengthen the link between judicial authority and civil
society and will make it possible to create a distinct base for its
independence. Courts with juries offer
defendants far greater possibilities to defend their rights than the usual
arrangements for examination in court.
A court with a jury serves as a means
of resolving non-standard situations where, owing to potentially grave
consequences it is more dangerous to offend against fairness than against the
dictates of an abstract legal norm.
The historical experience of Russia
shows that it was possible to put an end to total corruption in the courts only
after the introduction in 1864 of courts with juries, whose procedural form
makes it difficult to bribe the representatives of the people, for the reason
that the actual composition of a jury is ultimately determined only on the day
when court examination commences, by the random drawing of individuals from
general and reserve lists of jurors.
Through courts with juries in the Kyrgyz Republic there will be more
merciful justice, more exacting justice where the proving of guilt of
defendants is concerned and justice that is less influenced by the respective
parties.
Deputy A. Sabirov
