EUROPEAN
COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
DRAFT LAW
ON THE STATUS OF
JUDGES
OF KYRGYZSTAN
Jogorku Kenesh [parliament] of the Kyrgyz Republic
In accordance with Article 64 of the
Constitution of the Kyrgyz Republic I hereby submit for examination by the Jogorku
Kenesh of the Kyrgyz Republic a draft Constitutional Law of the Kyrgyz Republic "On the status of judges of the Kyrgyz Republic".
Considering the
importance of this draft law in creating legal machinery guaranteeing the
status of judges of the Kyrgyz Republic, providing guarantees of their
independence, improving the arrangements for judges' election/appointment,
transfer/rotation, discharge from office, liability and other provisions linked
to judges' status and the bringing of provisions into line with the new draft
of the Constitution of the Kyrgyz Republic, and regarding this law as an urgent
priority, I ask the Jogorku Kenesh of the Kyrgyz Republic to examine
this draft constitutional law under an extraordinary procedure.
In this process I am entrusting the
presentation to the Jogorku Kenesh of the Kyrgyz Republic of the
aforementioned draft constitutional law on behalf of the President of the Kyrgyz Republic to the President of the Supreme Court of the Kyrgyz Republic.
Enclosures:
1. draft Constitutional Law of the Kyrgyz Republic "On the status of judges of the Kyrgyz Republic"
2. Explanatory memorandum to the
draft Constitutional Law of the Kyrgyz Republic "On the status of judges
of the Kyrgyz Republic" in the state and official languages
Draft
Constitutional Law of the Kyrgyz Republic "On the status of judges of the Kyrgyz Republic"
The present Constitutional
Law defines the status of judges of the Kyrgyz Republic, guarantees of the
independence of judges, the procedure for election or appointment of judges of
the Kyrgyz Republic, their transfer/rotation, discharge from office, liability,
measures regarding material and social provision for the activity of judges and
other provisions linked to judges' status
Chapter 1. General
provisions
Article 1. Judges in the
Kyrgyz Republic
1. Justice in the Kyrgyz Republic shall be dispensed solely by courts of the Kyrgyz Republic.
2. Courts of the Kyrgyz Republic shall be:
- the Constitutional
Court of the Kyrgyz Republic (hereinafter "the Constitutional Court");
- the Supreme Court of
the Kyrgyz Republic (hereinafter "the Supreme Court");
- local courts of the Kyrgyz Republic (hereinafter "local courts");
- specialised courts
established by a constitutional law.
3. The courts of the Kyrgyz Republic shall be composed of judges of the Kyrgyz Republic.
4. Any citizens of the Kyrgyz Republic satisfying the requirements laid down in the Constitution of the Kyrgyz Republic and the present Constitutional Law and having personal and professional
qualities and a state of health enabling them to fulfil the duties assigned to
judges may be judges of the Kyrgyz Republic.
Article 2. Legislation
on the status of judges
1. Legislation on the
status of judges shall consist of the Constitution of the Kyrgyz Republic, the present Constitutional Law, other laws and legal and regulatory acts of the Kyrgyz Republic.
2. Legislation of the Kyrgyz Republic on civil service, labour, social, material/technical and other provision
and on state insurance shall extend to judges where such matters are not
regulated by the present Constitutional Law.
Article 3. Principles of
dispensing justice
1. In the dispensing of
justice judges shall be governed by the following fundamental principles:
the exercise of justice solely by
courts;
the exercise of justice free of
charge in the circumstances provided for in law;
the autonomy of courts and independence
of judges;
the equality of all before the law
and before the court;
- the responsibility of
judges;
- the open and public
examination of cases in all courts;
- the binding nature of
judicial acts;
- the participation of
citizens in the dispensing of justice under the procedure determined by law.
2. Citizens of the
Kyrgyz Republic shall be entitled to judicial protection free of charge in the
circumstances provided for in law as well as in any case where they submit
proof to the court that they do not have sufficient means to conduct the case
in court.
3. Courts shall exercise
judicial authority autonomously and independently of the will of any person
whomsoever and shall be subordinate only to the Constitution of the Kyrgyz Republic and the law.
Judges and jurors
participating in the dispensing of justice shall be independent and subordinate
only to the Constitution of the Kyrgyz Republic and the law.
No laws or other legal or
regulatory acts restricting the autonomy of courts and independence of judges
may be issued in the Kyrgyz Republic.
4. Everyone shall be
equal before the law and the court.
Judges shall dispense
justice impartially, without giving preference to any bodies, individuals,
parties or participants in the procedure on grounds of their state, social,
gender, racial, ethnic, linguistic or political affiliations, and regardless of
their origin, property or debt situation, place of residence, place of birth,
attitude to religion, beliefs or membership of public associations, or on other
grounds not provided for in law.
5. Judicial acts of
courts of the Kyrgyz Republic having entered into legal force and requests and
instructions issued by judges in the exercise of justice shall be binding for
all state authorities, local self-governing bodies, officials and physical
individuals and legal entities without exception and shall be rigorously
executed.
The submission of
information and documentation and copies thereof necessary for the exercise of
justice shall be mandatory when requested by a judge.
Failure to execute
judicial acts and requests and instructions issued by judges shall incur
liability as provided for in law.
6. The examination of
cases in all courts shall be open, except for cases that must be examined in
closed session in the circumstances provided for in law.
7. Citizens of the Kyrgyz Republic shall be entitled to participate in the dispensing of justice in the
circumstances provided for in law.
8. Requirements
pertaining to citizens participating in the dispensing of justice in the
capacity of jurors shall be established by law.
The time spent by jurors
participating in the dispensing of justice shall be compensated from the state
budget under the procedure provided for in legislation.
Article 4. Unity of
status of judges
Not all judges of the Kyrgyz Republic shall enjoy the same status. Special characteristics of the legal
situation of certain categories of judges may be established by a law of the Kyrgyz Republic.
Article 5. Judge's oath
1. The exercise of powers
by elected or appointed judges in the Kyrgyz Republic shall commence on the day
on which they take the judge's oath.
The oath shall be sworn
in a solemn ceremony and shall read as follows:
"I, … taking up the
post of judge of the Kyrgyz Republic, before my fatherland and my people do
hereby swear:
that I will exercise
justice honestly, conscientiously, impartially and justly in accordance with
the Constitution and laws of the Kyrgyz Republic;
that I will scrupulously
comply with the rules laid down by the judges' Code of honour".
2. The oath taken by the
judges of the Constitutional Court and the Supreme Court shall be pronounced at
a sitting of the Jogorku Kenesh on the day of their election.
3. The oath taken by the
judges of local courts shall be pronounced at an assembly of judges of the
Supreme Court no later than five days following their appointment.
Article 6.
Irreproachability of conduct of a judge and restrictions linked to the duties
of a judge
1. A judge shall
exercise their duties and keep their powers for as long as their conduct is
irreproachable.
The term
"irreproachable conduct" shall be taken to mean that judges shall be
under obligation to:
1) scrupulously comply
with the Constitution and laws of the Kyrgyz Republic;
2) comply with the rules
laid down by the judges' Code of honour and refrain anything that might
besmirch the authority or dignity of a judge or raise doubts over their honest,
conscientious, impartial and just dispensing of justice;
3) resist any attempts at
illegal interference in the dispensing of justice;
4) maintain the secrecy
of the deliberations room;
5) comply with the rules
of working arrangements;
6) should a situation
arise where there might be a conflict of interest, take all necessary steps to
eliminate that conflict of interest;
7) declare their property
and income, in accordance with the legislation of the Kyrgyz Republic.
2. Judges of district
courts and courts equivalent thereto shall be under obligation to supervise the
execution of judicial acts pronounced by them which have entered into force.
3. Judges shall be
prohibited from membership of political parties and from statements in support
of any political party.
4. Judges may not engage
in entrepreneurial activity nor may they combine the activity of a judge with
the activity of a member of parliament or an activity within an executive
authority or a local self-governing body or other paid work, with the exception
of:
1) teaching, academic and
creative activity insofar as this does not impede the fulfilment of the judge's
duties;
2) participation in the
activity of judges' self-regulation bodies of the National Council for affairs
of justice of the Kyrgyz Republic (hereinafter "the National
Council").
5. Judges may not
provide any conclusions or consultations whatsoever on cases dealt with by
courts when they are off duty.
Article 7. Symbols of
judicial authority
1. When exercising
justice, judges shall wear a robe and pronounce their decisions in the name of
the Kyrgyz Republic.
2. The coat of arms and
flag of the Kyrgyz Republic shall be displayed in rooms where court sittings
take place.
3. Elected and appointed
judges of the Kyrgyz Republic shall be issued with attestations.
The attestations of
judges of the Constitutional Court and the Supreme Court shall be issued by the
Jogorku Kenesh of the Kyrgyz Republic.
The attestations of the
respective presidents and vice-presidents of the Constitutional Court and the
Supreme Court and of the presidents, vice-presidents and judges of local courts
shall be issued by the President of the Kyrgyz Republic.
Article 8. Judges'
classification categories
1. Judges shall be
assigned classification categories in relation to the post they hold, their
experience of working as a judge, the level of justice dispensed and
irreproachable conduct.
2. The breakdown of
classification categories shall be as follows:
- fifth classification
category;
- fourth classification
category;
- third classification
category;
- second classification
category;
- first classification
category;
- top-level
classification category.
Classification categories
shall be assigned to judges by the President of the Kyrgyz Republic at the proposal of the Council of Judges of the Kyrgyz Republic (hereinafter "the
Council of Judges").
Article 9. Procedure for
assigning a classification category to a judge of the Kyrgyz Republic
1. Classification
categories shall be assigned as follows:
1) fifth to second
classification categories to judges of local courts;
2) first and top-level
classification categories to judges of the Constitutional Court and Supreme
Court.
Judges of local courts
may, in view of working experience, level of justice dispensed and
irreproachable conduct, be assigned first and top-level classification
categories.
2. Judges of local
courts assigned to their post for the first time and having no classification
category shall be assigned the fifth classification category no earlier than
six months following their appointment.
The next classification
category shall be awarded to the judge no earlier than three years hence. This
three-year period shall not include any period when the judge did not exercise
their powers. In the event of a disciplinary sanction being imposed on a
judge, the three-year period shall be suspended until the disciplinary sanction
has been deemed to have been expunged.
Judges assigned
classification categories shall retain them for life. Upon assignment of the
next classification category, the previous classification category shall lapse.
3. The deprivation of a
judge of their classification category shall be permitted only under a judicial
procedure as a type of additional sanction imposed by court sentence in a
criminal case.
Article 10. Pay
supplement for classification categories
1. Judges holding
classification categories shall be assigned supplements to the official rate of
pay under the procedure established in the legislation of the Kyrgyz Republic.
2. Judges of military
courts holding military ranks shall not be assigned classification categories,
and supplements to their official rate of pay shall be based on their military
rank.
Chapter 2. Guarantees of
the independence of judges
Article 11. Independence of judges
1. The independence of
judges shall be guaranteed by:
1) the exercise of
justice according to procedures provided for only by law;
2) the prohibition,
under threat of liability, of interference in the activity of a judge by any
party whatsoever;
3) the irremoveability
of judges;
4) the immunity of
judges;
5) the obligation to make
material and social provision for judges corresponding to their elevated status
at the expense of the State;
6) the functioning of
judicial self-governing bodies.
2. Guarantees of the
independence of judges provided for in the Constitution of the Kyrgyz Republic and the present Federal law may not be abolished in any circumstances.
Article 12.
Inadmissibility of interference in the activity of a judge
1. Any interference in
the activity of a judge for the purpose of impeding the exercise of justice
shall incur the liability established by law.
2. No one shall be
entitled to solicit a report from a judge on a specific judicial case, except
where, in accordance with the present Constitutional law, a matter concerning
the liability of a judge is under examination.
3. A judge shall not be
under obligation to give any kind of explanation as to the merits of cases
examined by or assigned to them or to pass the case material to whomsoever to
gain knowledge thereof, other than in the circumstances and under the procedure
provided for in procedural law.
Article 13.
Irremoveability of judges
1. Judges of all courts
of the Kyrgyz Republic shall be irremoveable. They shall exercise their duties
and conserve their powers within the limits of the term laid down in the
Constitution.
2. A judge may not be
subject to early discharge or dismissal from office and their powers may not be
suspended or terminated other than under the procedure and on the grounds
established in the Constitution of the Kyrgyz Republic and the present Federal
law.
3. A judge exercising
their powers in a local court in a given region of the Republic may be sent to
an equivalent or higher posting at another court under a transfer/rotation
procedure to exercise the powers of judge in that local court only in the
circumstances and on the grounds provided for in the present Federal law.
Article 14. Immunity of
judges
1. A judge shall be
immune. The immunity of judges shall extend to their home, place of work,
means of transport and communication used by them, their correspondence,
property and documents.
2. A judge, even after
their term of office expires, may not incur any kind of liability for a
judgment rendered by them, a sentence or other judicial act, provided that a
court sentence having entered into legal force does not establish their guilt
for criminal wrong-doing or for knowingly pronouncing an unjust sentence,
ruling or other judicial act.
3. A judge may not be
detained or arrested or be subjected to searches of their premises or person,
except where caught at the scene of a crime. A judge detained on suspicion of
committing a crime or on other grounds or forcibly delivered to any law
enforcement agency when it was not known who the judge was at the time of
detaining them, shall be immediately released upon their identity being
established.
4. A personal search of
a judge shall not be permitted except in circumstances provided for by law for
the purposes of ensuring the security of other people.
Chapter 3
Procedure for electing judges of the
Constitutional Court and the Supreme Court and appointing the presidents and
vice-presidents of the Constitutional Court and the Supreme Court
Article 15. Procedure
for electing judges of the Constitutional Court and the Supreme Court
1. Any citizen of the Kyrgyz Republic who is no younger than 35 years of age and no older than 70 years of age
and has a higher legal education and no less than 10 years of experience in the
legal profession may be a judge of the Constitutional Court.
Any citizen of the Kyrgyz Republic who is no younger than 35 years of age and no older than 70 years of age
and has a higher legal education and no less than 10 years of experience in the
legal profession, including no less than 5 years as a judge, may be a judge in
the Supreme Court.
2. Judges of the Constitutional Court shall be elected by the Jogorku Kenesh of the Kyrgyz Republic at the proposal of the President of the Kyrgyz Republic before attaining the
age limit established by the Constitution of the Kyrgyz Republic.
Candidates for the post
of judge of the Constitutional Court shall be determined independently by the
President of the Kyrgyz Republic.
The Jogorku Kenesh
of the Kyrgyz Republic shall take a decision on a proposed candidate no later than
two weeks after the proposal was received.
3. In the event of a
proposed candidate for the post of judge of the Constitutional Court being
rejected, the President of the Kyrgyz Republic shall submit to the Jogorku
Kenesh of the Kyrgyz Republic the same or another candidate for election as
a judge of the Constitutional Court.
The Jogorku Kenesh
of the Kyrgyz Republic shall examine the proposal of the President of the Kyrgyz Republic of a new or re-submitted candidate for election as a judge of the Constitutional Court within no more than ten days after the proposal was received in the Jogorku
Kenesh of the Kyrgyz Republic.
4. Judges of the Supreme
Court shall be elected by the Jogorku Kenesh of the Kyrgyz Republic at the proposal of the President of the Kyrgyz Republic based on the suggestion
of the National Council, before the candidate attains the age limit established
by the Constitution of the Kyrgyz Republic.
5. The National Council
shall, no later than sixty days before a serving judge of the Supreme Court
will attain the age limit or their powers are to expire, or no later than
twenty days after the early termination of powers of a judge of the Supreme
Court or their early discharge from office, announce a competition to replace
the freed or vacated post of judge of the Supreme Court.
6. Judges of the Kyrgyz Republic may participate in that competition by submitting an application.
Their application must be
submitted to the National Council within ten days of publication of the
announcement.
7. After reception of
the applications is completed, the National Council shall, within ten days and
according to the findings of analysis of the personnel files of judges of the Kyrgyz Republic and the conducting of interviews with the applicants, submit to the President
of the Kyrgyz Republic candidates for election to the post of judge of the Constitutional Court.
The personnel files of
judges of the Constitutional Court, Supreme Court and local courts shall be
submitted to the National Council by the corresponding apparatus of the
Constitutional Court, Supreme Court and Judicial Department of the Kyrgyz
Republic (hereinafter 'the Judicial Department).
8. The President of the Kyrgyz Republic shall submit to the Jogorku Kenesh of the Kyrgyz Republic a proposal of
one candidate for election as a judge of the Supreme Court. The Jogorku
Kenesh of the Kyrgyz Republic shall take a decision on the proposed
candidate no later than two weeks after the proposal was received.
9. In the event of a
proposed candidate for the post of judge of the Supreme Court being rejected,
the President shall submit either the same or another candidate from among
those previously submitted by the National Council.
In the event of no other
candidate being available, the National Council shall submit to the President
of the Kyrgyz Republic other candidates from among those having participated in
the competition.
The Jogorku Kenesh
of the Kyrgyz Republic shall examine the proposal of the President of the Kyrgyz Republic resubmitting the same candidate or submitting a new candidate for election as a
judge of the Supreme Court within no more than ten days from receipt of the
proposals by the Jogorku Kenesh of the Kyrgyz Republic.
In the event of there
being no other applicants for the post of judge of the Supreme Court, the
National Council shall announce and conduct a new competition, following the
rules provided for in the present article.
10. The following
persons may not be judges of the Constitutional Court or the Supreme Court:
1) persons who have a
conviction, including a quashed or served conviction for a crime with intent;
2) judges of the Kyrgyz Republic previously dismissed from post in connection with conduct not beyond
reproach.
Article 16. Procedure
for appointing presidents of the Constitutional Court and the Supreme Court and
their deputies
1. The president and
vice-president of the Constitutional Court shall be appointed from among the
judges of the Constitutional Court by the President of the Kyrgyz Republic with the consent of the Jogorku Kenesh of the Kyrgyz Republic.
The president, first
vice-president and vice-presidents of the Supreme Court shall be appointed from
among the judges of the Supreme Court by the President of the Kyrgyz Republic with the consent of the Jogorku Kenesh of the Kyrgyz Republic.
2. The presidents of the
Constitutional Court and the Supreme Court and their deputies shall be
appointed for a term of five years.
3. The President of the Kyrgyz Republic shall identify the candidates for the post of presidents of the Constitutional Court and the Supreme Court and their deputies and shall submit proposals to
the Jogorku Kenesh of the Kyrgyz Republic to obtain consent to their
appointment in the event of:
1) ceasing of the powers
of serving presidents of the Constitutional Court and the Supreme Court and
their deputies;
2) early termination of
their powers or early discharge from office.
4. The candidates
submitted shall be examined by the Jogorku Kenesh of the Kyrgyz Republic no later than two weeks after the proposal was submitted by the President of
the Kyrgyz Republic. In the event of the candidates proposed being rejected,
the President of the Kyrgyz Republic shall be entitled to resubmit the same
candidates to the Jogorku Kenesh of the Kyrgyz Republic or identify
other candidates and submit proposals accordingly to the Jogorku Kenesh
of the Kyrgyz Republic.
5. In the event of the Jogorku
Kenesh of the Kyrgyz Republic not examining the proposals requiring consent
for the appointment of the presidents of the Constitutional Court and the
Supreme Court and their deputies within the established deadline, consent to
their appointment shall be deemed to have been obtained.
6. Prior to the
appointment of new presidents of the Constitutional Court and the Supreme
Court, in connection with the expiry of their powers or the early termination
thereof or the early discharge of serving presidents, the duties of president
shall be fulfilled by the vice-president of the Constitutional Court or first
vice-president of the Supreme Court respectively.
In the event of there
being no vice-president of the Constitutional Court, the duties of the
president shall be temporarily fulfilled by a judge of the Constitutional Court,
who shall be assigned those duties by the President of the Kyrgyz Republic. In the event of there being no first vice-president of the Supreme Court, the
duties of the president shall be temporarily fulfilled by one of the
vice-presidents of the Supreme Court, who shall be assigned those duties by the
President of the Kyrgyz Republic.
Chapter 4.
Procedure for appointing and
transferring judges of local courts and appointing the president and
vice-president of a local court
Article 17. Requirements
for candidates for the post of judge of a local court
1. Any citizen of the Kyrgyz Republic who is no younger than 35 years of age and no older than 65 years of age
and has a higher legal education and no less than 5 years of experience in the
legal profession may be a judge of a local court.
2. The following
additional requirement shall apply to persons who are seeking to take up the
duties of judge of a local court and do not have experience in the legal
profession:
- a certificate
attesting to a study programme established by the Council of Judges and the
passing of the corresponding final examination.
3. The following persons
may not be judges of a local court:
1) persons who have a
conviction, including a conviction served or quashed under the procedure
established by law;
2) judges of the Kyrgyz Republic previously dismissed in connection with conduct not beyond reproach.
Note: For the period of
work in the legal profession required to take up the post of judge, the time
spent working in duties requiring a mandatory higher legal education shall be
included. A list of such duties shall be determined by the President of the Kyrgyz Republic at the proposal of the Council of Judges.
Article 18. Competition
to fill a vacant post of local court judge
1. The selection of
candidates to fill a vacant post of local court judge shall be carried out by
the National Council on a competitive basis.
2. Competitive selection
to fill a vacant post of local court judge shall be carried out in two rounds
by means of a qualifying examination and an interview.
3. Vacancies for local
court judges shall be formed as a result of:
1) the expiry of the
powers of a local court judge;
2) the attaining of the
age limit established by the Constitution of the Kyrgyz Republic;
3) the early termination
of powers of a local court judge or the discharge of the judge from office;
4) the creation of new
local court judge posts;
5) the formation of
specialised courts.
4. When a vacancy is
formed on the grounds set forth in sub-paragraphs 1 and 2 of paragraph 3 of the
present article, the announcement of a competition to fill the vacant post of
local court judge shall be advertised in the state newspaper of the Kyrgyz
Republic and also on the internet site of the National Council no later than
sixty days prior to the ceasing of the powers of the local court judge or the
attaining by them of the age limit.
5. When a vacancy is
formed on the grounds set forth in sub-paragraphs 3-5 of paragraph 3 of the
present article, the announcement of a competition to fill the vacant post of
local court judge shall be advertised in the state newspaper of the Kyrgyz
Republic and also on the internet site of the National council no later than
twenty days after the vacancy is formed.
6. The provisions of the
present article shall not apply if, prior to announcing a competition for the
vacant/freed post, the National Council receives applications (or an
application) from serving judges whose powers are expiring for appointment to
that post. In this case the National Council shall examine the candidatures
(or candidature) under the rules set forth in Article 21 of the present
Constitutional law. If the candidature (or candidatures) do not obtain the
necessary amount of votes of members of the National Council, a competition for
the vacant judge's post shall be announced in accordance with the present
article.
Article 19. Procedure
for submitting documents for the competition to fill a vacant local court
judge's post
1. Applications and
accompanying documents with respect to a vacant local court judge's post shall
be submitted by the applicant either in person or by post.
Applications for a
vacant local court judge's post shall be addressed to the National Council and
delivered to the Judicial Department of the Kyrgyz Republic (hereinafter 'the
Judicial Department').
Applications shall have
the following documents enclosed:
1) a copy of the
passport attesting to the applicant's citizenship and age;
2) a certified true copy
of the diploma attesting to a higher legal education;
3) a certified true copy
of the applicant's work record and other documents proving their experience of
work in the legal profession;
4) a medical certificate
attesting to the applicant's state of health no older than one year;
5) a document attesting
to the fulfilment of an additional requirement of the applicant provided for in
paragraph 2 of Article 17 of the present Constitutional law.
The application may
enclose other documents (references, recommendations) describing the
applicant's personal qualities.
2. Serving judges of
the Kyrgyz Republic shall be entitled to participate in the competition for
selection to local court judges' posts by submitting an application.
The documents of judges
of the Constitutional Court and the Supreme Court shall be compiled by the
administrations of those courts and transmitted to the Judicial Department.
The documents of local
court judges shall be compiled by the Judicial Department.
3. Documents of serving
judges of the Kyrgyz Republic shall contain:
1) the judge's personnel
file;
2) data on the time
worked in a judicial post, showing the number and level of cases examined;
3) information on any
awards, commendations and reprimands;
4) private opinions
pronounced in respect of the judge.
4. The deadline set for
the submitting of applications and supporting documents of applicants to a
vacant local court judge's post shall be established by the National Council
and may not be less than fourteen days from the date of publication of the
announcement.
Documents from individuals
barred from participating in a competition for a two-year period in accordance
with Article 20 of the present Constitutional law and documents submitted after
the expiry of the deadline established under the present article shall not be
accepted.
The Judicial Department
shall, after accepting an application and the enclosed documents, make
independent inquiries with the relevant authorities as to the conviction record
of the applicant.
The corresponding
authorities shall be under obligation to send information on the existence or
non-existence of a conviction record for the applicant within no more than ten
days.
5. The persons whose
documents for participation in the competition to fill a vacant local court
judge's post are accepted shall be included in the list of applicants. The
list of applicants shall be published in the state newspaper of the Kyrgyz Republic and also on the internet site of the National Council no later than forty
days from the date of publication of the competition announcement with a view
to obtaining feedback on the professional and moral qualities of the
applicants.
The deadline for
receiving such feedback shall be determined by the National Council.
Article 20. Qualifying
examination
1. The qualifying
examination (hereinafter 'the examination') shall be run by the National
Council with the aim of determining applicants' professional training and
knowledge in branches of law.
The examination shall be
taken by applicants who are not judges and have no experience of judicial work
or do not possess a certificate attesting that they have passed the
examination.
A certificate whose
period of validity has not expired shall be valid regardless of changes to the
pass-rate threshold.
2. The examination shall
be convened by the president of the National Council. Applicants shall be
notified of the date, time and place of the examination no later than five days
before it is held.
3. The examination shall
take the form of a computer-based test for applicants with questions on different
branches of law and the resolving of tasks from judicial practice.
The results of the test
and resolving of practical tasks shall be assessed in terms of the total number
of marks scored by the applicants. The computer-based test and practical
questions, the pass-rate threshold and the procedure for holding the qualifying
examination shall be determined each year by the National Council.
4. Applicants shall be
entitled to familiarise themselves with test questions and practical questions
before the examination.
During the examination,
applicants may use compendiums of legal and regulatory acts.
5. An applicant shall be
adjudged to have passed the first round if the total of marks scored in the
test and practical questions is equal to or higher than the established
pass-rate threshold. An applicant having passed the first round of the
competition shall be issued with a certificate based on the model established
by the National Council. The certificate shall be signed by the president of
the National Council, authenticated with the official stamp of the Judicial
Department and valid for three years.
6. An applicant who
fails to obtain the pass-rate threshold shall be adjudged not to have passed
the qualifying examination and may not participate in a competition to fill a
vacant local court judge's post for the next two years.
Article 21. Interview
1. Applicants having
passed the first round of a competition to fill a vacant local court judge's
post shall be entitled to take part in the second round, which is an interview.
Interviews shall be held
by the National Council after completion of the first round of the competition.
Serving judges having
submitted an application to participate in the competition, individuals with no
less than five years' experience in the judicial profession having submitted an
application and also individuals holding a previously issued but still valid
examination pass certificate shall be admitted to the interview without having
to sit the first-round examination.
2. The documents of the
individuals taking part in the second round of the competition shall be studied
by the National Council on a panel basis. Each applicant interview shall be
held orally.
In conducting interviews
the National Council shall clarify the factors influencing the possibility of
the applicant exercising the powers of a judge in any region of the Kyrgyz Republic.
3. In the light of the
results of the interviews the National Council shall hold a vote on each
candidate and take a decision to recommend candidates for a post of local court
judge.
The procedure for taking
a decision on a recommendation of candidates for a post of local court judge
shall be determined by the National Council.
4. The decision of the
National Council shall be appended to the candidate's personnel file. The
personnel files of candidates taking part in the competition shall not be
returned and shall be conserved by the Judicial Department under the procedure
established by legislation.
Article 22. Procedure
for appointing candidates to local court judge posts and assigning them to
local courts to exercise the powers of local court judge
1. Local court judges
shall be appointed by the President of the Kyrgyz Republic from among the
individuals who have passed the competitive selection process and/or are
recommended by the National Council.
2. A proposal of a
candidate for appointment as a local court judge shall be submitted to the
President of the Kyrgyz Republic after completion of the second round of the
competition.
In the event of the
President of the Kyrgyz Republic rejecting the proposed candidate, the National
Council shall submit another candidate.
In the event of no other
candidate being available, the National Council shall announce a new
competition.
3. The appointment of
local court judges shall be made by decree of the President of the Kyrgyz Republic for the term laid down by the Constitution of the Kyrgyz Republic.
The appointed local court
judge shall be assigned by decree of the President of the Kyrgyz Republic to a specific local court to exercise the powers of local court judge.
Article 23.
Transfer/rotation of local court judges
1. A local court judge
may be transferred from one local court to another local court on the following
grounds:
1) at their own wish;
2) in the event of
reorganisation of the court or changes to the structure or staffing level of
the court;
3) in the event of a
judge exercising their powers in one court for more than 10 years;
4) circumstances beyond
the control of the judge and the State, including the judge's state of health,
confirmed by medical opinion.
2. The transfer of the
judge shall be for the remaining term of office.
3. A decision to
transfer/rotate a judge shall be taken by the President of the Kyrgyz Republic on the basis of a proposal of the National Council and without the holding
of a competition.
Article 24. Procedure
for appointing presidents and vice-presidents of local courts
1. Presidents and
vice-presidents of local courts shall be appointed from among local court
judges for a term of five years by the President of the Kyrgyz Republic at the proposal of the National Council.
Local court judges with
less than five years remaining of their term of office may not be appointed
presidents or vice-presidents of local courts.
2. One month before the
expiry of the term office of the serving president or vice-president of a local
court the National Council shall announce a competition to fill the vacant post
of local court president or vice-president.
In the event of early
termination of powers or early discharge from office of a president or
vice-president of a local court, a competition to fill the vacant post of local
court president or vice-president shall be announced no later than ten days
after the post falls vacant.
The announcement of a
competition to fill the post of president or vice-president of a local court
shall be advertised in the state newspaper of the Kyrgyz Republic and also on
the internet site of the National Council.
Local court judges shall
participate in the competition by submitting an application addressed to the
National Council. Applications shall be submitted to the Judicial Department
no later than ten days after the announcement of the competition, either in
person or by post. From the day of receiving an application the Judicial
Department shall compile material for the National Council consisting of:
1) the judge's
personnel file;
2) data on the period
worked in the judicial profession, showing the number and level of cases examined;
3) information on any
awards, commendations and reprimands;
4) private opinions
pronounced in respect of the judge;
5) other documents
relating to the judge.
5. The National Council
shall examine the applications of local court judges for the post of president
or vice-president of a local court and the material relating to them. The date
of a National Council sitting shall be set by the National Council.
In the light of its
findings the National Council shall select a candidate(s) for the post of
president or vice-president of the local court and submit a proposal(s) to the
President of the Kyrgyz Republic.
The National Council's
decision shall be appended to the judge's personnel file.
6. A local court judge
whose powers of local court president or vice-president have expired but whose
powers of judge of the Kyrgyz Republic have not yet expired, shall exercise the
duties of local court president or vice-president until the appointment of a
local court president or vice-president.
Following the appointment
of another local court president or vice-president, the aforementioned judge
may be assigned to the local court in question or another local court to
exercise the powers of a local court judge.
7. The National Council
shall be entitled, no later than one month before the expiry of the powers of a
local court president or vice-president, to recommend a candidate, without
holding a competition, to the President of the Kyrgyz Republic for appointment
to the local court president or vice-president post becoming vacant, taking due
account of fitting fulfilment by that candidate of their duties and powers and
their irreproachable conduct.
Chapter 5. Grounds and
procedure for suspension of powers, dismissal from office and termination of
powers of a judge
Article 25. Suspension
of powers of a judge and dismissal from office of a judge
1. The powers of a judge
shall be suspended if:
- the judge is registered
as a candidate for the office of President of the Kyrgyz Republic;
- included in the registered
list of a political party taking part in elections to the Jogorku Kenesh
of the Kyrgyz Republic;
- registered as a
candidate to the office of parliamentary deputy in a local kenesh.
The judge's powers shall
be restored if the circumstances constituting grounds for the decision to
suspend their powers cease to exist.
The decision to suspend a
judge's powers or to restore them shall be taken by the President of the Kyrgyz Republic.
2. A judge of the Kyrgyz Republic shall be dismissed from office/discharged from exercising the duties of a judge
by the President of the Kyrgyz Republic at the proposal of the National Council
in the event of:
- the institution of
criminal proceedings against them (as the person accused of the crime) or
administrative proceedings under judicial procedure;
- the lodging of a motion
for early discharge from office.
3. In the event of
criminal proceedings or disciplinary proceedings being lodged against a judge
of the Kyrgyz Republic, the President of the Kyrgyz Republic shall be entitled
to dismiss them from office at the proposal of the National Council.
4. A judge dismissed
from office shall be restored to office (shall be deemed as having resumed
office) if the circumstances constituting grounds for the decision to dismiss them
from office cease to exist.
5. The suspension of a
judge's powers shall not entail the ceasing of payment of a salary to the judge
or a decrease in the amount paid. Nor shall it entail a lowering of the level
of other types of material and social provision for the judge or deprive them
of the guarantees of immunity established by the present Constitutional law.
6. The dismissal of a
judge from office shall entail suspension of payment of salary to the judge and
other types of material and social provision.
7. In the event of the
judge being restored to office, the judge's salary and other types of material
and social provision outstanding shall be paid in full.
Article 26. Grounds and
procedure for the discharge of a judge from office
1. A judge shall be
discharged from office upon reaching the age limit established in Article 83 of
the Constitution of the Kyrgyz Republic.
2. A judge shall be
discharged from office early on the following grounds:
1) a written application
by the judge to be voluntarily discharged from office;
2) inability, owing to
their state of health, to exercise the powers of a judge, attested to by the
conclusion of a medical commission;
3) the failure of the
judge to report for work for more than four months running as a result of
temporary work invalidity, not counting leave for pregnancy, childbirth or
child-care;
4) appointment of a
Constitutional Court or Supreme Court judge as a local court judge; election of
a local court judge as a judge of the Constitutional Court or Supreme Court;
taking up of other work not related to the dispensing of justice;
5) refusal of a local
court judge to be transferred to another local court on the grounds provided
for in sub-paragraphs 2-4 of paragraph 1 of Article 23 and paragraph 6 of
Article 24 of the present Constitutional law;
6) entry into legal
force of a guilty verdict of a court against the judge;
7) entry into legal
force of a court judgment to apply compulsory measures of a medical nature in
respect of the judge;
8) the committing of a
disciplinary infringement incompatible with the irreproachable conduct and high
calling of a judge, confirmed by decisions of the Council of Judges or National
Council;
9) engaging in an
activity incompatible with the office of judge.
3. Judges of the Constitutional Court and Supreme Court shall be discharged from office early by a majority
of no less than two thirds of the total number of deputies of the Jogorku
Kenesh of the Kyrgyz Republic at the proposal of the President of the Kyrgyz Republic.
4. A local court judge
shall be discharged from office by the President of the Kyrgyz Republic at the proposal of the National Council.
5. A written application
by the judge to be voluntarily discharged from office may be revoked within 24
hours of the application being submitted.
6. A decision of early
discharge in respect of a judge of the Kyrgyz Republic from the office occupied
by them shall not be open to appeal.
Article 27. Grounds and
procedure for the ceasing or termination of a judge's powers
1. A judge's powers
shall cease in connection with the expiry of their powers.
A judge's powers shall be
terminated early in the event of:
1) loss or
relinquishment of citizenship of the Kyrgyz Republic or the acquiring of
citizenship of another State;
2) limited legal
capacity or the declared legal incapacity of the judge, on which a court
judgment has entered into legal force;
3) their death;
4) notification of their
death, on which a court judgment has entered into legal force;
5) recognition of them
as a missing person, on which a court judgment has entered into legal force.
2. The powers of a judge
shall be terminated early by the entity which elected or appointed them. In
the event of the court judgments mentioned in sub-paragraphs 4 and 5 of
paragraph 1 of the present article being set aside, the judge's powers shall be
restored by the entity which terminated them.
Chapter 6. Liability of judges
Article 28. Disciplinary
liability of a judge
1. A judge shall have
disciplinary proceedings instituted against them for a disciplinary
infringement.
A violation of the
judge's duties provided for in the present Constitutional law or engaging in an
activity incompatible with the office of judge shall be recognised as a
disciplinary infringement by a judge.
2. The instituting of
disciplinary proceedings against a judge for a disciplinary infringement shall
entail application of one of the following disciplinary measures:
1) imposing of a
disciplinary penalty in the form of an observation or reprimand;
2) early discharge of
the judge from their post.
3. An observation or
reprimand shall be deemed cancelled after one year of such a disciplinary
penalty being imposed on condition of proper fulfilment of duties and
irreproachable conduct.
4. For a violation of
sub-paragraphs 1 and 2 of paragraph 1 of Article 6 of the present
Constitutional law, a judge shall either have a disciplinary penalty such as a
reprimand imposed on them or be discharged early from their post.
For a disciplinary
infringement in violation of sub-paragraphs 3-7 of paragraph 1 of Article 6 of
the present Constitutional law, a judge shall have a disciplinary penalty in
the form of an observation imposed on them, a reprimand for a repeat
infringement within one year and, for a further infringement, regardless of the
quashing of a previously imposed penalty, they shall be discharged early from
their post.
For a violation of
paragraph 2 of Article 6 of the present Constitutional law, a president or
judge of a district or equivalent court having passed the judicial acts in
question shall have a disciplinary penalty such as an observation imposed on
them.
For a violation of
paragraphs 3-5 of Article 6 of the present Constitutional law, a judge shall be
discharged early from their post.
5. An observation or
reprimand for a judge shall be imposed by the Council of Judges.
A decision to discharge a
judge of the Constitutional Court or Supreme Court early from their post shall
be taken by the Jogorku Kenesh of the Kyrgyz Republic at the proposal of
the President of the Kyrgyz Republic based on a decision of the Council of
Judges to discharge the judge early from their post.
A decision to discharge a
local court judge early from their post shall be taken by the President of the Kyrgyz Republic at the proposal of the National Council based on a decision of the Council
of Judges to discharge the judge early from their post.
Article 29. Procedure
for instituting disciplinary proceedings against a judge
1. Disciplinary
proceedings may be instituted against a judge in the light of the findings of
the examination of a disciplinary case brought by the Council of Judges:
- prompted by complaints
from physical individuals and legal entities;
- prompted by
applications from state authorities, local authorities, their officials or the
president of the corresponding court of the Kyrgyz Republic, accusing the judge
of a disciplinary infringement;
- private opinions given
by higher-ranking courts in respect of a judge of a lower-ranking instance.
2. To conduct an
official investigation in the framework of a disciplinary case, the Council of
Judges shall form a committee from among its members, which shall conduct an
official investigation within one month.
An official
investigation shall entail:
- questioning and
requesting explanations and other evidence from the judge in respect of whom
the complaint is being examined, questioning and requesting additional
explanations and evidence from the persons who submitted the complaint,
questioning witnesses, studying a case file of the judge under investigation if
the complaint concerns the actions of a judge in the examination of a specific
case;
- any other actions aimed
at gathering full information on the causes and circumstances constituting
grounds for the submitting of the complaint.
On the basis of the
findings of the official investigation, the committee shall draw up a briefing
paper setting out the date and place of the holding of the investigation, the
statements of the individuals questioned, their written explanations, other
evidence, conclusions as to whether or not the judge committed an
infringement. The briefing paper on the findings of the official investigation
shall be signed by the members of the committee and submitted to the Council of
Judges. Any member of the committee not in agreement with the briefing paper
on the findings of the official investigation shall be entitled to submit a
dissenting opinion, appended to the committee's briefing paper.
3. A judge against whom
disciplinary proceedings are instituted shall be given sufficient time to
familiarise themselves with the case materials.
4. After examining the
briefing paper drawn up by the committee in the framework of disciplinary
proceedings, the Council of Judges shall take one of the decisions provided for
in Article 26 of the present Constitutional law or a decision to cease
disciplinary proceedings on grounds that there was no disciplinary infringement
in the actions of the judge.
In the event of a
constituent element of a crime in the actions of a judge being uncovered, the
Council of Judges shall hand over the material of the disciplinary proceedings
to the Prosecutor General.
5. If the actions of
the judge referred to in the complaint, being incompatible with the irreproachable
conduct and high calling of a judge, were committed in the examination of a
court case and no judicial act has been adopted on that case, the case shall be
subject to transfer to another judge, and the disciplinary proceedings brought
shall be subject to examination under the rules of the present article.
Article 30. Bringing of
a criminal case against a judge and procedure for instituting criminal
proceedings or administrative proceedings under judicial procedure against a
judge
1. A decision to bring a
criminal case against a judge shall be taken by the Prosecutor General of the Kyrgyz Republic (hereinafter 'the Prosecutor General').
2. A decision to
institute criminal proceedings against a judge (as the person accused of the
crime) shall be taken by the Prosecutor General with the consent of the
National Council.
In order to obtain
consent for the instituting of criminal proceedings against a judge, the
Prosecutor General shall submit a motion to the National Council, indicating
the circumstances of the criminal case and the article of criminal legislation
under which the judge stands accused and requesting consent for the instituting
of criminal proceedings (as the person accused of the crime).
3. A decision on the
instituting of administrative proceedings under judicial procedure against a
judge shall be taken by the corresponding prosecutor with the consent of the
National Council.
In order to obtain
consent for the instituting of administrative proceedings against a judge, the
corresponding prosecutor shall submit a motion to the National Council,
indicating the circumstances of the administrative case and the article of
legislation concerning administrative infringements under which proceedings are
to be instituted against the judge and requesting consent for the instituting
of administrative proceedings against them.
4. In the event of a
change during criminal or administrative investigations in the determination of
the constituent element of the crime or infringement which may entail a worsening
of the judge's situation, the instituting of criminal or administrative
proceedings against a judge shall be permitted under the procedure established
in the present article.
5. The motion for
consent for the instituting of criminal or administrative proceedings against a
judge shall be examined by the National Council and a decision shall be
pronounced no later than ten days from the date of submitting the motion.
6. If the National
Council establishes that the instituting of criminal or administrative
proceedings is prompted by the stance adopted by the judge in the exercise of
their judicial powers, it shall refuse to grant consent for the instituting of
criminal or administrative proceedings against the judge.
7. In the event of the
National Council deciding to refuse to grant consent for the instituting of
criminal or administrative proceedings under judicial procedure against a
judge, no repeated motions for such consent shall be permitted.
Article 31. Carrying out
of operational/search and investigative actions in respect of a judge
1. The carrying out of
operational/search measures in respect of a judge entailing restriction of
their civil rights or a violation of their immunity, established by the
Constitution of the Kyrgyz Republic, the present Constitutional law and other
laws of the Kyrgyz Republic shall be permitted only after criminal proceedings
have been instituted against the judge.
2. After criminal
proceedings have been instituted against a judge, operational/search measures
and investigative actions in respect of the judge shall be carried out under
the procedure established by the legislation of the Kyrgyz Republic.
Chapter 7. Social guarantees of the
status of judges
Article 32. Material
provision for judges
1. Judges shall be
guaranteed a wage funded by the republic budget provided for the funding of
judicial authority.
The conditions of wages
of judges shall be determined by the President of the Kyrgyz Republic at the proposal of Council of Judges. The level of a judge's wage may not be reduced
during their term in office.
2. A judge requiring
housing or improvement thereof shall be provided with official accommodation or
compensation for expenditure on rented accommodation or shall be allocated
sufficient funding from the judicial system budget to improve their housing
conditions.
Official accommodation
shall be allocated on the site of the court where the judge exercises their
powers. The surface area of official accommodation shall measure no less than
20 square metres of useable floor area for each member of the judge's family.
Official accommodation
may not be privatised.
A judge discharged from
office upon reaching the age limit who has no less than 20 years experience in
the judicial profession and has been occupying official accommodation, shall be
provided with housing in the form of a separate flat or house funded by the
state budget or with assistance to build their own home.
The procedure for
providing them with housing or assistance to build their own home shall be
determined by the Government of the Kyrgyz Republic in agreement with the
Council of Judges.
3. Judges shall be
granted annual paid leave of a duration of thirty calendar days with paid
health-recovery assistance under the procedure established by the legislation
of the Kyrgyz Republic.
Judges shall be granted
additional annual paid leave in relation to their length of service in the
legal profession:
- from 5 to 10 years - 2
working days;
- from 10 to 15 years - 4
working days;
- from 15 to 20 years - 6
working days;
- more than 20 years - 8
working days.
Woman judges shall be
granted leave for pregnancy and childbirth as well as for child care in
accordance with labour legislation.
Upon written application,
a judge may be granted unpaid leave in accordance with labour legislation.
4. Judges shall be
provided free of charge with attire to be worn in their work (gowns) in line
with the standards established by the Government of the Kyrgyz Republic.
Article 33. Social
protection measures for judges and members of their family
1. There shall be
compulsory medical insurance for judges at the expense of state funds.
Expenses linked to treatment in a period of illness shall be compensated from
state funds. During a period of illness, attested to by a medical certificate,
a judge shall continue to receive their average monthly pay.
In the event of injury or
other damage to health caused to a judge in connection with the fulfilment of
their official duties which rules out any further possibility of engaging in
professional activity, they shall be paid monthly compensation amounting to the
difference between their monthly wage and the pension allocated to them, not
including payments received under compulsory state insurance.
2. There shall be
compulsory state life insurance for judges at the expense of the republic
budget.
In the event of a
judge's death, their family shall receive a lump-sum payment based on their
average monthly salary for the last post occupied for every half-year worked by
the judge but no less than the equivalent of one year's salary.
3. Judges discharged
from office in connection with attaining the age limit shall receive a lump-sum
payment based on their average monthly salary for the last post occupied for
every half-year worked by the judge but no less than the equivalent of one
year's salary.
Judges with no less than
20 years' irreproachable service in the post of judge who are discharged from
office in connection with a submitted written application for discharge from
office of their own volition shall receive a lump-sum payment based on their
average monthly salary for the last post occupied for ten years worked as a
judge.
The lump-sums
established in the present paragraph shall be paid from the republic budget
provided for the funding of the judicial system.
Article 34. State
protection of judges
1. State protection
shall be provided for a judge in the event of a threat to the judge's life,
health or property in connection with their official activity and shall be
implemented through the following security measures:
1)
personal protection, protection of their home and property;
2) issue
of a firearm and special means of personal protection and danger alert;
3)
temporary move to a safe place;
4)
ensuring the confidentiality of information concerning the protected judge;
5)
recommendation of transfer/rotation to another court or change of place of
work/department;
6)
resettlement to another place of residence.
2. Where necessary the
aforementioned security measures may also be applied to close relatives of the
judge. The security measures applied must not prejudice the housing, labour,
pension or other rights of the person protected.
3. The conditions and
procedure for applying security measures shall be established by the President
of the Kyrgyz Republic.
Chapter 8. Final provisions
Article 35. Procedure of
entry into force
1. The present
Constitutional law of the Kyrgyz Republic shall enter into force from the date
of its official publication, with the exception of the provision in paragraph 2
of Article 17 of the present Constitutional law, which shall be applied as of 1
September 2008.
2. Persons having passed
the qualifying examination in the form of the computer-based test for the post
of local court judge prior to the entry into force of the present
Constitutional law shall not be subject to application of the provision in
Article 20 of the present Constitutional law for three years dating from the
entry into force of the present Constitutional law.
3. From the date of
entry into force of the present Constitutional law, the following laws or
provisions shall be declared invalid:
- the Constitutional Law
of the Kyrgyz Republic "On the status of judges of the Kyrgyz
Republic" of 8 October 1999 (Official Gazette of the Jogorku Kenesh
[parliament] of the Kyrgyz Republic, 2000 no. 2, p. 96);
- the Constitutional Law
of the Kyrgyz Republic "On the status of judges of the Kyrgyz
Republic" of 30 March 2001 (Official Gazette of the Jogorku Kenesh
of the Kyrgyz Republic, 2001 no. 4, p. 95);
- Law no. 137 of the
Kyrgyz Republic "On the procedure for accrediting judges of local courts
of the Kyrgyz Republic" of 4 December 1999 (Official Gazette of the Jogorku
Kenesh of the Kyrgyz Republic, 2000 no. 4, p. 177);
- Article 1 of Law
no. 105 of the Kyrgyz Republic of 7 July 2006 "Amending and
supplementing the Law of the Kyrgyz Republic "On the procedure for
accrediting judges of local courts of the Kyrgyz Republic" and the Law of
the Kyrgyz Republic "On the Supreme Court of the Kyrgyz Republic and local
courts"" ("Erkintoo" Gazette of 18 July 2006, no. 52).
4. It is hereby
recommended that judicial organs, self-governing judicial bodies and the
Government of the Kyrgyz Republic take measures made necessary by the present
Constitutional law.
5. The Government of the
Kyrgyz Republic shall bring all decisions into line with the present
Constitutional law.
