EUROPEAN
COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
COMMENTS
ON THE DRAFT LAW
ON AMENDING AND
SUPPLEMENTING
THE LAW ON THE
SUPREME COURT
AND LOCAL COURTS
OF KYRGYZSTAN
by
Ms Angelika NUSSBERGER
(Substitute member, Germany)
Introduction
The Kyrgyz Republic has asked the
Venice Commission to adopt an opinion on the draft Law of the Kyrgyz Republic “Amending and supplementing the Law of the Kyrgyz Republic ‘On the Supreme
Court of the Kyrgyz Republic and local courts”. This law aims at bringing the
Law “On the Supreme Court of the Kyrgyz Republic and local courts” adopted on
18 July 2003 in conformity with the new Kyrgyz Constitution adopted by
referendum on 21 October 2007.
Preliminary remarks
The opinion is based on two
documents, a comparative table (in English) and a text of the law of 2003
containing the amendments of 10 July 2004, 7 July 2006, 7 May 2007, 1 June 2007
and 25 June 2007 (in Russian). There is no complete version of the draft law,
neither in English nor in Russian.
The relevant article of the Kyrgyz
Constitution dealing with the Supreme Court is the following:
Article 86
1. The
Supreme Court shall be the highest body of judicial power in the sphere of
civil, criminal and administrative and other legal proceedings within the
jurisdiction of local courts and shall supervise the judicial activity of local
courts by review of judicial acts on appeals lodged by participants in judicial
proceedings under the procedure provided for by law.
2. The
Plenum of the Supreme Court shall give explanations on questions of court
practice.
3. The
acts of the Supreme Court adopted in the exercise of supervision shall be final
and not subject to appeal.
The changes in the draft law concern
most of all specific regulations (e.g. responsibility of the execution of
judicial acts, number of Vice-Presidents and judges, organisation of the
sittings of the Plenum, organisation of the apparatus of the courts etc.).
The main change in the Constitution
is the creation of a Judiciary Council. In this regard the Supreme Court looses
some competences especially in disciplinary proceedings. The results of these
changes cannot be properly assessed as it is not clear how the new Judicial
Council will function.
Therefore the opinion on the draft
law has to concentrate on those issues comprehensively regulated in the new
law.
The following remarks can be made:
I) Responsibility for the execution
of judgements.
The new version on the Law contains
a regulation on the “inappropriate supervision on the part of a judge of the Kyrgyz Republic of the execution of their judicial acts” (Art. 9 para. 2). The English
version of the new text is not entirely clear, but, according to the wording
provided it seems to fix a liability of the judge in this context.
It should be noticed that, as a rule
in European practice, it is not the judge’s task to supervise the execution of
judgments, but there are specialised bodies responsible for that. The judge
will not have the means to make sure that the judgements are really implemented
in practice. It seems to be inappropriate to establish the judge’s liability in
this context. That might even be used as a means to undermine the judges’
independence.
II. Powers of the President of the
court
The President of the Supreme Court
as well as the presidents of the local courts have extraordinarily vast powers.
Some of the amendments aim at reducing their scope (e.g. the competence to
initiate disciplinary proceedings is transferred to the Judicial Council), but
nevertheless, some of the remaining competences are still subject to criticism.
This applies above all to the power
of the president of the court (both the Supreme Court and the local courts) to
allocate the cases to the judges. This power can be easily abused e.g. by not
allocating politically sensitive cases to judges who are not opportune. It may
also be used as an instrument of pressure, as particular judges may purposely
be overloaded with minor-profile cases.
Therefore it is suggested that the
allocation of cases should be effectuated on the basis of abstract criteria
laid down in advance (e.g. in alphabetical order of the claimants). This is
part of a fair trial.
III. Powers of the Plenum of the
Supreme Court
1. The power of the plenum of the
Supreme Court to hand down clarifications of questions concerning judicial
practice has been maintained. Similar regulations are applied in other legal
systems, such as the Russian judicial system.
In the case of Kyrgyzstan it seems that these “clarifications” are handed down by the plenum on its own
initiative. Depending on the way this quasi-legislative power is exercised it
might be at odds with the principle of separation of powers.
From this perspective, it should be
welcomed that the provision according to which the “clarifications” are binding
for lower courts has been deleted. But it is not to be expected that this will
lead to a major change in practice.
2. The way of voting in the Supreme
Court that had already been fixed in the last version of the law and that has
not been changed might also raise doubts as to the independence of the
judiciary. According to Article 15 para. 5, as a rule, rulings are adopted by
open ballot. According to Article 15 para. 7 the Minister of Justice and the
Prosecutor General may be invited to participate in the meetings of the plenum.
In practice the voting of the judges might be influenced by the presence of the
high representatives of the executive.
3. Furthermore it might be mentioned
that the wording of Article 15 para 10, according to which the plenum “shall
consider other matters of organisation and activity of courts” is very vague;
the competences of the Plenum might be unduly enlarged on the basis of this
provision.
IV. Establishment of the number of
judges at local courts.
According to the new Article 25 the
President of the Republic shall have power to establish the number of judges of
the local courts in accordance with the workload norm of judges and the number
of local court apparatus staff.
This provision raises concerns
insofar as the risk of abuse cannot be excluded. Thus the number of judges can
be reduced in order to get rid of unpleasant judges or to weaken the judiciary
as a whole. The reference to the workload norms does not seem to be a mechanism
preventing such abuse.
According to the last version of the
law the President could exercise this power only on basis of a proposal of the
President of the Supreme Court (see article 27 para 1 with regard to the oblast
courts and article 34 para 2. with regard to the rayon courts). The risk of
abuse might be reduced, if this right were transferred to the Judicial Council.
It should be made clear that the independence of the judges must not be
endangered in this context.
V. Other issues
Most of the changes are related to
management issues (creation of the office of the First Vice-President of the
Supreme Court, rules on the court administration and the apparatus). It should
be secured that the apparatus does not interfere into the tasks of the
judiciary. The adjudication of cases has to be excusively in the hands of
independent judges.
Insofar as the aim of the changes is
to improve the proficiency of the management they are to be welcomed.
VI. Conclusions
Some of the amendments certainly
have potential to improve the proficiency of the administration of justice. The
compatibility of most of the changes with the rule of law principle depends on
their implementation in practice. The judges’ liability for the non-execution
of judgements as well as the competences of the Presidents of the courts to
assign cases to specific judges raise concerns in view of the rule of law
principle.
