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Strasbourg, 1 December 2008
Opinion no. 480 / 2008
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CDL(2008)131*
Engl. only
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EUROPEAN
COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
DRAFT
opinion
on THE CONSTITUTIONAL
LAW ON COURT JURIES
OF KYRGYZSTAN
on the basis of comments by
Ms Angelika NUSSBERGER (Substitute Member,
Germany)
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). The Law on Court Juries
(4) is dealt with in this opinion; laws (1) and (2) were dealt with in Opinion
481 (CDL-AD(2008)029) and laws (3) and (5) are covered in
separate opinions.
2. The
present opinion was drawn up on the basis of comments by Ms Nussberger
(CDL(2008)105, who was invited by the Venice Commission to act as a rapporteur.
3. 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.
4. This opinion was adopted at the … Plenary
Session of the Venice Commission (Venice, …).
GENERAL REMARKS
5. The draft Law on Court Juries in
the Kyrgyz Republic forms a part of a series of laws aimed at
reforming the judicial system of Kyrgyzstan and has been introduced as a result
of the constitutional changes made in this area.
6. This opinion
is based on an English version of the draft Law. It is important to note that
the Venice Commission has been given one draft out of various existing drafts
currently debated in Kyrgyzstan. An analysis in Russian prepared for the OSCE
refers to another draft.
LAW ON COURT JURIES
7. The explanatory memorandum of
the draft Law on Court Juries sets out that the aims of this Law
are “to bridge the gap between the judicial system, courts and society” and
to put an end to corruption. Although the perception that a jury system can
enhance fair trial and lead to higher acquittal rates may be explained through
historical evidence, this view should be approached with caution. Jury systems
in and of their own are no guarantee for the independence and fairness of the
justice system. This will depend on the legal framework and the practical
application of the rules.
Participation in the dispensing of
justice – right or duty?
8. The draft Law’s constitutional
basis are Articles 15 and 82 of the Constitution. According to Article
15.6 “Everyone shall have the right to have their case examined by a
court with the participation of jurors in cases stipulated by law.” Article
82 stipulates that “1. Judicial authority of the Kyrgyz Republic shall be exercised solely by a court. In the cases and under the procedures provided
for by law, citizens of the Kyrgyz Republic shall be entitled to participate in
the administration of justice. 2. Judicial authority shall be exercised by
means of constitutional, civil, criminal, administrative and other forms of
legal proceedings. 3. The judicial system of the Kyrgyz Republic shall be
established by the Constitution and laws and shall consist of the
Constitutional Court, the Supreme Court and local courts. Specialised courts
may be established by constitutional law. The creation of extraordinary courts
shall not be permitted. 4. The organisation and operating procedure of the
courts shall be defined by law.”
9. Article 82 therefore
grants an entitlement to participate in the administration of justice. The
wording is reminiscent of other participation rights, such as the right to
participate in state government (e.g. Article 23 of the Constitution). This
approach differs from other European constitutions, which only determine the
right of the accused to be judged by a jury in cases of especially serious
crimes (cf. Article 22 of the Russian Constitution), not a citizen’s right to
participate in the adjudication of cases. Accordingly, taking part in a jury trial
is perceived not as a right, but as a duty.
10. The draft Law mirrors the
constitutional provisions and explicitly states, in Article 1.1, that
citizens are “entitled, in circumstances provided for in law, to participate
in the dispensing of justice.” At the same time, Article 1.3
explains that the participation in the exercise of justice is a “civil duty”.
In this context, the notion of participating in the dispensing of justice
might be clarified.
11. Article 7.3 provides
that candidates for jury service are chosen by “means of random selection”,
therefore the entitlement mentioned in Article 1 has to be understood as
a right to take part in the random selection process.
12. It is also not clear how the
civil duty mentioned in Article 1.3 can be enforced in case the chosen candidate
refuses to serve jury duty.
Number and status of jurors
13. Article 4 defines what a
juror is and sets out the basic requirements, explaining that jurors take part
in the adjudication of “criminal cases regarding particularly serious crimes.”
They can be involved at the “request of a party admissible under the
procedure established by the Code of Criminal Procedure.” Apparently, this
includes the accused person, the prosecutor (prokuror) and the victim - to
the extent that the latter can become a party.
14. The number of jurors is set at
12. This seems to have been controversial, as the presidential administration
wanted to have only 7 or a maximum of 9 jurors. However, it is better to
have 12 jurors, as a larger number of jurors helps to base the decision on a
broader consensus.
15. The wording of Article 4.3
is rather vague. It provides that “any influence on that process by persons
with an interest in the outcome of the case” shall be precluded. In order
to become operational the Venice Commission recommends that “interest in
the outcome of the case” be clearly defined and that a procedure be set up
for excluding those having a specific interest. This may have been done by
the Code of Criminal Procedure – but this document was not available for
analysis.
Prerequisites for being a juror
16. According to its heading, Article
5 regulates the “requirement imposed on jurors”, when in fact it
explains who is excluded from being a juror. The age limit is set at 25 years
and this might be seen as age discrimination. Nevertheless, similar age limits
are not uncommon in European practice with respect to both judges and jurors.
17. In addition to excluding
certain people from the lists of candidates for jury service, Article 5.3
provides that some people can be excluded from the examination of a given
criminal case. According to Article 5.3.2 people who do not speak
the language in which the proceedings are going to take place can be excluded.
This provision can only be judged on the basis of the provisions on the languages
used in criminal proceedings. There is a danger that such a provision might
lead to the exclusion of minorities.
Selection mechanism
18. Article 6 et seq. of the
draft Law set out in detail the procedure for identifying and selecting
candidates. It is mainly based on a co-operation between the President of the
Supreme Court and the regional administration in order to identify candidates.
The basic idea is to have a random selection among those registered as voters.
The draft Law should explain the process of “random selection” in
order to exclude any misuse and corruption.
19. It is noted that under Article
7.10 all citizens have the right to submit written notification
concerning unfounded inclusion and exclusion of candidates. It is difficult to
imagine how this procedure is going to work in practice and if it is
possible for the administration to check the written notifications within 5
days only (Article 7.11).
20. The obligations of officials
and leaders of organisations to submit information concerning the compiling of
the list are set out in Article 8. It is not clear in which context
such additional information is necessary insofar as the selection process is
based on the lists of the registered voters only. It would be useful to know
which organisations are meant in this provision.
21. Article 9 is of great
importance as it regulates who can be excluded from the list of candidates by
the administration. This provision excludes a wide range of professionals
such as judges, prosecutors (prokuror), military servicemen etc. This
is to be highly welcomed.
Material compensation and guarantees
22. Article 12 regulates the
material compensation for jurors. This seems to be acceptable insofar
as it does not place jurors at a financial disadvantage due to their work.
23. The regulations on independence
and immunity of jurors are very short also in comparison with earlier versions
of the draft. The guarantees of the independence and immunity of judges
on the basis of the Law on the status of judges of the Kyrgyz Republic is extended to jurors and members of their family. It is however
strange that immunity also applies to the members of the family.
24. Article 13.2 establishes
that a person hampering a juror in the fulfilment of his or her function shall
bear liability. This provision is extremely vague and the Venice Commission
recommends that what is meant by “hampering the fulfilment of duty”
be clearly explained in the draft Law.
CONCLUSION
25. Although the overall concept of
including jurors in criminal trials on the most serious crimes seems to be a
promising approach to enhance fair trial, a number of details in the draft Law
remain vague. This applies in particular to the exclusion of people having an
“interest” in the outcome of the proceedings, to the guarantees of independence
and immunity and to the procedure of “random selection”.
26. The Venice Commission would
therefore recommend the following:
- Article 1.1: the notion of “participating
in the dispensing of justice” should be clarified;
- Article 1.3: a procedure is
needed to clarify how the civil duty can be enforced in case a chosen candidate
refuses to serve jury duty;
- Article 4.3: “interest in
the outcome of the case” should be clearly defined and a procedure
should be set up for excluding those people having a specific interest;
- Article 5.3.2: regarding the
language of the proceedings, this provision might lead to the exclusion of
minorities and should be reconsidered;
- Article 6 et seq.: the process
of “random selection” in order to exclude any misuse and corruption
should be explained in this draft Law;
- Article 13.2: the meaning of “hampering
a juror in the fulfilment of his or her function” should be fully
explained in this provision.
27. The Venice Commission remains
at the disposal of the Kyrgyz authorities for any further assistance.
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