EUROPEAN
COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
DRAFT
opinion
on THE CONSTITUTIONAL
LAW
ON BODIES
OF JUDICIAL SELF-REGULATION
OF KYRGYZSTAN
on the basis of comments by
Ms Angelika NUSSBERGER (Substitute Member, Germany)
Mr James HAMILTON (Substitute Member, Ireland)
1. By
letter dated 6 May 2008, the Chair of the Constitutional Court of Kyrgyzstan,
Ms Svetlana Sydykova, requested an opinion on: (1) the draft Law amending and
supplementing the Law on constitutional proceedings in Kyrgyzstan
(CDL(2008)064); (2) the draft Law amending and supplementing the Law on the
Constitutional Court (CDL(2008)065); (3) the Law on the Status of Judges (CDL(2008)099); (4) the Law on Court
Juries (CDL(2008)069); (5) the Law on Bodies of Judicial
Self-regulation (CDL(2008)098) and (6) the Law amending
and supplementing the Law on the Supreme Court and local courts (CDL(2008)097).
2. The Law on Bodies of
Judicial Self-regulation (5) is dealt with in this opinion; laws (1) and (2) were
dealt with in Opinion 481 (CDL-AD(2008)029) and laws (3) and (4) are covered in
separate opinions.
3. The
present opinion was drawn up on the basis of comments by Ms Nussberger and Mr
Hamilton, who were invited by the Venice Commission to act as rapporteurs.
Their comments figure in documents CDL(2008)106 and CDL(2008)107, respectively.
4. A
conference on the topic “Supremacy of law and the independence of the judiciary –
guarantees for the stability of democratic institutions” was organised in Bishkek,
Kyrgyzstan on 27-28 May 2008 together with the Constitutional Court (CDL-JU(2008)022
synopsis). The purpose of the conference was to inform the Venice Commission about the
current judicial reform in Kyrgyzstan, in the context of the request for an
opinion on the six draft laws/amendments mentioned above.
5. This opinion was adopted at the … Plenary
Session of the Venice Commission (Venice, …).
GENERAL REMARKS
6. The Law on Bodies of Judicial Self-regulation
is relatively short and establishes two bodies of judicial self-regulation: (1)
the Congress of Judges and (2) the Council of Judges. It sets out the basic
principles for their organisation and activity and establishes their legal
status.
7. This is a framework law, which
does not provide many details, and how the system works in practice will depend
on what other legal and regulatory acts will be adopted to govern its working.
8. With respect to judicial
self-regulation, it is also important to note that the Kyrgyz Constitution
provides in its Article 91 that:
“1. Judicial
self-regulation shall be used to resolve internal issues concerning the
activities of judges.
2. The Congress of Judges
and the Council of Judges shall be the bodies of judicial self-regulation in
the Kyrgyz Republic.
The Council of Judges
shall protect the rights and lawful interests of judges, exercise supervision
over the drawing up and implementation of court budgets, organise basic and
further training for judges and consider questions of disciplinary proceedings
against judges.
3. The organisation and
activities of the judicial self-regulatory bodies shall be defined by law.”
LAW ON BODIES OF JUDICIAL
SELF-REGULATION
9. The new Law does not go into
much detail on precisely what functions the two bodies will have, but describes
them in fairly general terms. Article 1.1 defines judicial
self-regulation as “the means of organising the judicial community,
making it possible to resolve questions concerning the internal activities of
judges through its own bodies.” This form of self-regulation is understood
as being a prerequisite, in Article 4.1, of “expressing and defining
the interests of both judges and other persons vested with judicial power.”
However, the procedure for their formation and activity is to be determined by
the Congress.
10. The Congress is to meet once
every three years and is the supreme body of judicial self-regulation (Article
6.2). Extraordinary congresses may be convened at the initiative of
one-third of all judges or of the Council of Judges. The latter, which has
fifteen members, is to be elected by the Congress (Article 8.3) and is
subordinate to it (Article 6.1) and its function is to implement the Congress’
policy in the period between congresses (Article 8.1).
11. It is noted that the entire Council
is to be elected by the judges. The Venice Commission, in its report of 16-17
March 2007 on Judicial Appointments (CDL-AD(2007)028), recommended that
Judicial Councils should include members other than those elected by the
judiciary.
12. Article 5 provides for the
aims of the two bodies of judicial self-regulation, which are to protect the
rights and lawful interests of judges, to assist in improving the judicial
system and proceedings, and to represent the interests of judges in dealings
with state bodies, public associations and international organisations. It
seems, therefore, that the idea is to provide a framework to form coherent
standpoints for the judicial community with respect to all questions concerning
judges.
13. Regulating self-regulation
seems to be a contradiction, however, if such a law is deemed necessary its
provisions should not be too rigid. Although it is important to provide a
solid basis for judges’ self-regulation, it is important not to suffocate it.
14. In this respect, there are a
number of provisions that raise doubt. First, Article 4.4 provides that
the status of individuals exercising the activities of judicial self-regulation
is governed by the Law on civil service. The content of this Law is not known
to the Venice Commission, but it might be too rigid if it provides for strict
regulations on responsibilities or perhaps even regulations subordinating the
representatives to the administration.
15. Second, it seems unnecessary
for the Congress to be convened by the President of the Kyrgyz Republic, as foreseen by Article 6.2. This provision contradicts the very
idea of self-regulation.
16. Third, Article 8.4 sets
out that “The organisational, technical, material, financial and
methodological resources for the activity of the Council of Judges shall be
provided by the Judicial department of the Kyrgyz Republic.” This
could create a strong dependency that would be incompatible with the idea of
self-regulation.
17. Fourth, the rules for the
election of the representatives are also very rigid, for instance, the
prohibition of the re-election of members of the Council of Judges for a second
consecutive term (Article 8.8). This means a complete turnover in
the membership every three years. Some continuity may be desirable, perhaps
the terms of office could be staggered (partial renewal).
18. It is not clear who the members
of the bodies of judicial self-regulation are going to be. On the one hand it
seems to be evident that only judges can be members. However, on the other
hand, the Law explicitly refers to “the interests of both judges and other
persons vested with judicial power” (Article 4.1). Who is meant
by “other people” and are they allowed to participate in self-regulation?
19. Article 4.1 explicitly
mentions the powers of the bodies of judicial self-regulation. Article 4.6
determines the forms of regulation, such as decisions and communications. It
is important to note that these regulations should be read in conjunction with
the Council of Judges’ list of tasks.
20. Article 7 sets out the
specific powers of the Congress and, in addition to the representational role,
it confers a policy-making function and an executive role on the Congress. The
powers include (1) to establish rules of procedure of both bodies, (2) to
establish a blueprint for judicial reform, (3) to establish a Judges’ Code of
honour as well as (4) to determine the main thrusts of policy of the judicial branch
of authority and assign tasks to the Council of Judges aimed at guaranteeing
the independence of courts and also protecting the rights and lawful interests
of judges and (5) to resolve other questions concerning the judicial community.
With respect to establishing blueprint for judicial reform, it is not clear
what the legal consequences are. Are all judges bound to defend the
position of the Congress of judges? Does the legislator have to take this
decision into account? If so, how?
21. While it is expressly provided
that the Congress may not intervene in matters of dispensing justice, it is
provided that the Congress’ decision are to be binding on judges.
22. Article 9 provides for
the powers of the Council. This provision also covers important executive
powers as well as advisory and recommendatory powers. These include the
supervision over the drawing up and implementation of the courts budget, the
examination of questions of instituting disciplinary proceedings against
judges, and the organisation of training and further training of judges and
court staff, and the receipt of annual reports from the heads of the judicial
department and the training centre. As regards disciplinary proceedings against
judges, do such decisions concern concrete judges and are these decisions
binding? An appeal against disciplinary measures to an independent court
should be made available (see alsoCDL-AD(2007)028, paragraph 25).
23. The Council also has various
representational and advisory functions. The Law, however, is silent as to how
most of these functions are to be carried out and presumably further legal
instruments will deal with issues such as discipline, training and the budget. It
is also not quite clear in which cases binding decisions are adopted and what
the legal consequences of those binding decisions are.
24. A number of other points are
worthy of note: under Article 2 on “Judicial Community”, retired
judges are to retain their membership of the judicial community. It can be an
advantage to use the talents and experience of retired judges, however for the
purpose of electing the Council, it might be better for retired judges to have
separate representation. It is possible that retired judges outnumber serving
judges. Should they be entitled to vote at a Congress? Due to the fact that
the Law uses two different terms “judge” and “judicial community”, it is not
entirely clear whether the law provides for this and it may be argued that
retired judges deemed to be members of the judicial community are not judges.
CONCLUSION
25. The new law is very short, but
contains some important provisions. These include the organisation of training
and further training of judges and the whole court structure. Time and
practice will tell if the implementation of the relatively strict rules
concerning the self-regulation of judges leaves enough room for real
self-regulation and for an open debate among judges on the problems of the
judicial system and thereby leading to an improvement in the adjudication of
concrete cases.
26. The Venice Commission would,
however, recommend the following:
- Article 2: consider clarifying
the position of retired judges;
- Article 4.1: the membership of
the bodies of judicial self-regulation should be clarified (who is meant
by “other people” and are they allowed to participate in self-regulation?);
- Article 4.4: ensure that the
Law on civil service does not provide regulations on responsibilities that
are too strict or that subordinate the representatives to the
administration;
- Article 6.2: delete this
provision, as it seems unnecessary for the Congress to be convened by the
President of the Kyrgyz Republic, which is not in line with
self-regulation;
- Article 7: with respect to
establishing a blueprint for judicial reform, set out the legal
consequences, e.g. are all judges obliged to defend the position of the
Congress of Judges? Does the legislator have to take this decision into
account? If so, how?
- Article 8.4: revise this
provision to ensure that there is no strong dependency on the Judicial
department of the Kyrgyz Republic that is incompatible with the idea of
self-regulation;
- Article 8.8: as regards the
prohibition of the re-election of members of the Council for a second
consecutive term, staggering the terms of office should be introduced;
- Article 9: as regards
disciplinary proceedings against judges, clarify whether such decisions
concern concrete judges and whether they are binding;
- Include, in this Law, how the
Council’s various representational and advisory functions are to be
carried out. It should also be clarified in which cases binding decisions
are adopted and what the legal consequences of those binding decisions
are.
27. The Venice Commission remains
at the disposal of the Kyrgyz authorities for any further assistance.
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