EUROPEAN COMMISSION FOR
DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
opinion on
THE DRAFT AMENDMENTS TO
THE constitutional LAW oN THE
STATUS OF JUDGES
OF KYRgyzstan
adopted by the Venice Commission
at its 77th Plenary
Session
(Venice, 12-13 December 2008)
on the basis of comments by
Mr James HAMILTON (Substitute Member, Ireland)
Mr Anders FOGELKLOU (Expert, Sweden)
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 the Status
of Judges (3) is dealt with in this opinion, laws (1) and (2) were dealt with
in Opinion 481 (CDL-AD(2008)033) and laws (4) to (6) will be dealt with in
separate opinions.
3.
The present
opinion was drawn up on the basis of comments by Messrs Fogelklou, and
Hamilton, who were invited by the Venice Commission to act as rapporteurs.
Their comments figure in documents CDL(2008)101 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 77th Plenary Session of the Venice Commission (Venice, 12-13 December 2008).
General remarks
6.
The draft Law on the status of judges itself
sets out three objectives, namely (1) to create a legal machinery guaranteeing
the status of judges; (2) to provide judges with guarantees of independence and
(3) to make provision for the election, appointment, transfer, rotation,
discharge from office, liability and material and social provisions of judges.
Chapter 1
- General provisions
7.
As a general rule, a number of issues should be
dealt with by a law on the status of judges, notably: the implementation of the
constitutional principle of the independence of the judiciary and of the judges
personally and it should be instrumental in achieving a higher professional
level as well as protect the judiciary from corruption.
8.
In Article 1, the draft Law enumerates
the normative principles that should govern the judiciary, such as the
exclusive exercise of justice by courts, access to justice free of charge, the
autonomy of courts and independence of judges, equality before the law,
examination of cases in public and the binding nature of judicial acts, which
is praiseworthy.
9.
Article 2.1
enumerates the legislation that should govern the position of judges and
ends with the expression “other laws and normative acts of the Kyrgyz Republic”. This enumeration is not exhaustive and is therefore either superfluous
or should at least omit the reference to other laws to ensure that the list is
exhaustive.
10.
Article 3.2
mentions the possibility of providing for financial support to parties before
courts, but the draft Law is vague on how that should be regulated, except in
cases of mandatory remuneration of defence lawyers, which should be regulated
by a separate law on legal aid.
11.
In Article 4 on the “Unity of
status of judges”, the drafter’s
intentions are not entirely clear. This Article should define what
differences in status are intended and what the “special characteristics of
the legal situation” are that would justify such distinctions.
12.
A positive step of this draft Law is the
attempt, in Article 6, to define what the Law means by the Russian
expression “bezuprechnyi” (irreproachable). It refers to several
duties, such as for judges to respect the code of ethics and mentions the
possible conflicts of interest that could arise. Judges are also to declare
assets and income “according to the legislation of the Kyrgyz Republic”. This explicit mentioning of possible effects of corrupt activities is
laudable, but the problem will be its effective implementation.
13.
Article 6 sets out the prohibition for members of the judiciary to be
members of political parties. This general prohibition represents a restriction
on the judges' right to freedom of association. Any restriction on an
individual's right to freedom of association must be in pursuit of a legitimate
aim and proportionate, that is necessary in a democratic society. In the
Commission's view, membership of judges in a political party can be viewed as
problematic in terms of ensuring the impartiality of the judiciary. In this
respect, the prohibition in question can be said to pursue the legitimate aim
of protecting the rights and freedoms of others. Admittedly, such a general
prohibition is quite a radical measure which does not allow for any nuances or
exceptions. Arguably, however, in a country such as Kyrgyzstan where belonging
to a political party may be more a question of personal alliances than an
ideological choice, this might be appropriate. The question of its
compatibility with the right to freedom of association guaranteed by Article
22 of the International Covenant on Civil and Political Rights would
deserve further reflection.
14.
Article 6 on compatibilities
also prohibits judges from being a part of the legislature or the executive,
from entrepreneurial activity or paid work, except for teaching or academic
work or participation in judicial self-regulation bodies. It would be useful
to extend this exception to permit judges to participate, without being
remunerated, in expert bodies, both on the national and the international level
– for example, as the draft Law stands, there might be some doubt whether a
Kyrgyz judge could be appointed to a body such as the Venice Commission.
15.
Under Article 8, the draft Law opens the
possibilities for a judicial career in accordance with traditional continental
as well as post-Soviet patterns. It divides the professional level into six
different classes and the President of the Kyrgyz Republic decides on the
advancement of a judge to a higher class on the basis of a proposal of the
National Council of Judges. To the extent that this system is maintained, a
clear regulation of the decision-making process in the Council should be
included in this draft Law. The decision should lie with the Council itself
rather than with the President, who could of course award the degree.
Chapter 2
– Guarantees for the independence of the judges
16.
This Chapter deals with the guarantees for the
independence of judges and represents a difficult balance. On the one hand, a
judge has to be put in a position where interference with the judge’s work or
person by the third parties is ruled out. On the other hand, this should
not be done in such a way as to put the corrupt or dishonest judge beyond the
reach of the law.
17.
Article 11
provides for six different guarantees for judicial independence. For
instance, the provision stipulates that no one has the right to interfere in
the activities of the judiciary; that judges may not be removed except in
accordance with the Constitution and the draft Law and that proper material and
social provisions need to be made for judges. These provisions are
appropriate.
18.
Article 13 on the
irremovability of judges, says that “Judges…shall exercise their duties and
conserve their powers within the limits of the term laid down in the
Constitution.” The Constitution in Article 83.6 second paragraph
stipulates that local judges should be appointed for the first time for a
period of five years, but then should have tenure until they retire at age 65.
It seems that judges, after a probationary period, may not be removed against
their will before they retire, except if they have committed a crime and are
prosecuted or through another sanction. This is in line with Article 84.1
of the Constitution, which states that judges of all courts shall retain their
posts and powers as long as their conduct is irreproachable. This is
indirectly shown by the introduction in Article 9.2 of “first and
top-level classification categories” for judges. This classification is
granted to a judge for life and may only be lost if the judge is given a higher
classification. This is, however, not an office, the provision therefore does
not regulate the actual tenure of a judge.
19.
In this respect, it is important to note that
the Venice Commission considers that setting probationary periods can
undermine the independence of judges, as they may feel under pressure to
decide cases in a certain manner. However, it should be noted that if
probationary appointments are considered indispensable, “refusal
to confirm the judge in office should be made according to objective criteria
and with the same procedural safeguards as apply where a judge is to be removed
from office”.
20.
Even if it is written in the Constitution that judges of the Constitutional and Supreme courts shall have
tenure and keep their office until they retire at the age of 70 (Constitution,
Article 83.5, third paragraph), it is this draft Law that should
regulate more clearly their tenure of office.
21.
Articles 11 and 14 read on their own appear to provide for complete immunity of judges
– which goes too far. However, Article 30 provides a mechanism whereby
a judge can be made criminally liable, although the relationship between Articles
14 and 30 is not clear. Article 30 might be intended as an
exception to Article 14. The three Articles reflect Article 83.2 of
the Constitution, which provides for immunity (except where a judge is
caught at the scene of a crime), which may be waived by Parliament in the case
of Constitutional Court and Supreme Court judges and by the President for local
court judges.
22.
It should be made clear that a judge should only
have functional immunity, but even in the exercise of their office, he or she
should have no immunity from criminal liability if he or she commits a crime.
As the Venice Commission has recommended in a number of opinions in the past “[…]
immunity of judges vis-à-vis criminal prosecution […] is […] excessive. Such a
provision goes far beyond the "Basic Principles on the Independence of the
Judiciary" promulgated by the United Nations in 1985, and introduces
distortions, which can be hard to justify, into the principle of the equality
of citizens before the law.”
It may be necessary to amend the Constitution in this respect.
23.
It may be reasonable to take measures to prevent
any arbitrary harassment of a judge under the pretext of law enforcement, but
this can be achieved by such measures as providing that the consent of a person
such as the President of the court or the chief prosecutor is required in order
to authorise arrest, search or detention as is indeed provided for in Article
30.
24.
It is reasonable to grant immunity from civil
suit to a judge acting in good faith in the performance of his or her duty. But, it should
not be extended to a corrupt or fraudulent act carried out by a judge.
Chapter 3
– Procedure for the election of constitutional and supreme court judges and
appointing presidents and vice-presidents of these courts
25.
This Chapter deals with the procedures for
electing the judges and appointing the presidents and vice-presidents of the Constitutional Court and the Supreme Court.
26.
As was already pointed out in the Venice
Commission’s Opinion on the draft laws amending and supplementing the Law on
Constitutional Proceedings and the Law on the Constitutional Court of
Kyrgyzstan (CDL(2008)029), “It seems that these amendments intend to
assimilate judges of the Constitutional Court to those of ordinary
courts. Such an assimilation does not take into account the special
position of a Constitutional Court, which has a specific constitutional task,
notably the annulment of laws and normative acts. By its very nature,
this task may create conflicts between the Constitutional Court and political
powers. While the basic requirements for judicial independence are the
same for both ordinary and constitutional court judges, the latter must be
protected from any attempt of political influence due to their position, which
is particularly exposed to criticism and pressure from other state
powers. Therefore, constitutional court judges are in need of special
guarantees for their independence…” .
For this reason, Constitutional Court judges should be dealt with in a separate
law.
27.
Article 15 sets
out that in order to be a judge, an individual must have absolved a higher
legal education and must have a professional experience of at least ten years
and not be older than seventy years of age. This is in line with the
Constitution and creates no problems.
28.
Judges of the Constitutional Court are elected
by Parliament on the proposal of the President of the Republic (Article 83.5
of the Constitution). As already pointed out in the Opinion on the draft laws amending and supplementing the Law on
Constitutional Proceedings and the Law on the Constitutional Court of
Kyrgyzstan (CDL-AD(2008)033, paragraphs 7-12), the fact that the Constitutional Court’s president is elected by a
political actor and not the Court itself is a widely accepted phenomenon. However,
the election of the President by the Court itself is, of course, preferable
from the perspective of the independence of the court, but this would require an amendment to
the Constitution.
29.
Since the current Constitution gives the
President vast symbolic, institutional and operational powers, it could be
argued that the Constitutional Court might not be able to function as a
counterbalancing force. However, the Constitution still has a progressive
catalogue of human rights and defending these rights against repressive
legislative measures could be seen as the primary task of the Constitutional Court.
30.
The draft Law is in line with the Constitution,
which stipulates that judges from the Constitutional Court are elected by
Parliament at the proposal of the President.
31.
An election with a qualified majority should
have already been regulated by the Constitution and since this is not the case,
the Commission’s only recommendation is that the procedure for selecting
candidates for the Constitutional Court be more transparent. It would be
desirable to have the input of a body, such as an expert committee or the
Judicial Council, who would vet the suitability of candidates for election.
32.
The appointment procedure for the judges of the
Supreme Court is regulated more clearly. Candidates are proposed by the
President and should be elected by Parliament. The candidates proposed by the
President are chosen on the basis of suggestions from the National Council of
Judges (we assume that this body is the one referred to in Articles 83 and
84 of the Constitution). The election of judges by Parliament is a
delicate matter because political considerations may come into play. Direct
appointment by the Judicial Council or appointment by the President upon a
binding proposal by the Judicial Council would be preferable (CDL-AD(2007)028
paragraphs 13-17). The Venice Commission is aware that this would require an
amendment of Article 83 of the Constitution.
33.
Where there is a vacancy in the Supreme Court,
the National Council holds a competition in which any Kyrgyz judge of more than
five years’ standing as a judge, having at least ten years’ experience as a
judge, may apply. On the basis of these applications, the National Council
prepares a list, which it submits to the President, who then selects a
candidate. The President then proposes this candidate to Parliament. If
Parliament rejects the proposed candidate, the President may again propose
the same or another candidate. This creates a potential for deadlock.
Also, the fact that the President could suggest, for the second time, the first
candidate who did not get the necessary votes to be elected, gives the
President too much power in the election of Supreme Court judges and leaves
room for pressure on Parliament.
34.
In deciding what candidates to submit to the
President, the Council considers the judges’ personnel files. Ms Sydykova,
Chair of the Constitutional Court of Kyrgyzstan, explained that these files
contain the appraisals of the judges concerned and are compiled by the Council.
35.
Article 15.9 second paragraph stipulates that “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”.
This provision is unclear as to whether or not the Council, if the President
and Parliament fail to appoint anyone, is to look at the application again.
36.
Article 15.10
states that among persons disqualified from being judges of the
Constitutional or Supreme courts are “persons who have a conviction,
including a quashed…conviction”. If a conviction is quashed, it is not
a conviction and should therefore not be a bar to appointment. This is all
the more important as the conviction could have been wrongfully obtained by
perjured evidence.
37.
The President also appoints the presidents and
vice-presidents of the two highest courts, with the consent of Parliament, for
a period of five years. There is, once again, potential for deadlock here.
These courts should be allowed to elect their own Chairmen independently, which
is for instance the case with the Russian Constitutional Court.
Chapter 4
– Procedure for the appointment and transfer of judges of local courts and the
appointment of the president and vice-president of a local court
38.
This Chapter deals with the appointment and
transfer of judges of local courts. In general, the provisions concerning
qualifications, examinations and procedures for appointment of regular local
court judges are in line with European standards. Candidates are required to
have five years legal experience or have passed an examination set by the
Council of Judges. Persons with a prior criminal conviction may not become
local judges.
39.
The National Council holds a competition for local
judges. The applicants must provide certain documentation, but may also supply
“other documents (references, recommendations) describing the applicant’s
personal qualities”. Where serving judges are concerned, their
documents shall contain “private opinions pronounced in respect of the judge”.
This is neither desirable nor transparent.
40.
After this, there is the qualifying examination
and an interview. The National Council makes recommendations and the President
of the Republic makes the appointment after which the judge is assigned to a
specific local court (Article 22.3).
41.
Article 23
provides for transfers by the President of the Republic on the proposal of the
National Council, at the judge’s wish, in the case or a reorganisation, when
the judge has served more than ten years, or in circumstances beyond the
judge’s and the State’s control, including the judge’s state of health.
42.
Presidents and vice-presidents of local
courts are appointed by the President of the
Republic on the National Council’s proposal. Private opinions may be taken
into account. Once again, this is neither desirable nor transparent.
Chapter 5
– Grounds and procedure for suspension of powers, dismissal from office and
termination of powers of a judge
43.
This Chapter deals with suspension, dismissal
and termination of powers.
44.
The manner in which judges are dismissed or
suspended from their office is of special importance to the rule of law. The
draft Law makes a distinction between loss of powers (polnomochnost) and
suspension of judges (otstranenie).
45.
In the case of loss of powers that include cases
where the candidate is involved in political activities that he or she is
prohibited from doing, the President makes a decision. If the circumstances
that led to the loss (e.g. that the person is a member of a political party)
have disappeared, the judge regains his or her powers through a decision by the
President. The Venice Commission recommends, however, that a judge should
first resign before being able to contest political office, because if a judge
is a candidate and fails to be elected, he or she is nonetheless identified
with a political tendency to the detriment of judicial independence.
46.
Suspension is more serious. A judge may be
suspended if criminal proceedings are instituted or administrative proceedings
under judicial procedure or if a motion for discharge is lodged against him or
her. An opening of an investigation on whether the judge should be dismissed
is another ground for suspension. The President makes a decision regarding
suspension, based on a proposal from the National Council of Judges.
47.
It should be made clear that the decision
made by the President for either suspending or restoring the powers of a judge
is not a discretionary one, but that the President is bound to make such a
decision in given circumstances.
48.
Dismissal is the most serious sanction and may
occur for various legitimate reasons. Article 26 sets out grounds for
dismissal from office, which are: (1) reaching the age of retirement; (2) on
the judge’s own application; (3) health grounds (attested by a medical
commission); (4) failure to report for work for more than four months
(excluding reasons of pregnancy or child-care); (5) appointment to another
court or position; (6) refusal to accept transfer; (7) a guilty criminal
verdict; (8) a court judgment to apply compulsory medical measures; (9) a
disciplinary infringement incompatible with the calling of a judge, confirmed
by decisions of the National Council of Judges and (10) activity incompatible
with the office of judges. Ms Sydykova explained that the “activity
incompatible with the office of judges”, which is not otherwise covered (Article
26), and does not set out by whom this should be determined, covers such
activities as political party membership, taking part in business activities,
appointment as a member of parliament on a local or national level etc.
Nevertheless, this term needs to be further clarified in the Law. .
49.
On the proposal of the President of the
Republic, judges of the Constitutional Court and of the Supreme Court may be
dismissed early on a two-thirds vote of the total membership of Parliament. As
no criteria for such an early dismissal are stated, outside of those
contained in Article 26 that cover dismissal (and not early dismissal) it
might be suggested that this provision be deleted. The procedure to be adopted
is not set out and it is not even clear that any grounds must be stated or what
rights of defence the judge has. There is also no provision for the
involvement by an expert body.
50.
Judges of local courts may be dismissed by the
President of the Republic on the proposal of the National Council of Judges. There
are no criteria or procedures set out in this provision.
51.
There is a special procedure for cases of
dismissal on administrative grounds in which the behaviour of a judge was seen
as not irreproachable. This form of dismissal must be confirmed by a decision
of the Council of Judges and by a decision of the National Council of Judges
prior to the final decision made by the President or by Parliament.
52.
Article 27 sets
out the grounds for ceasing or terminating a judge’s power. Early termination
is effected by the body which appoints or elects judges. It is not clear
who this is, where there is involvement of more than one body, e.g. if the
consent of Parliament to an appointment is required must it also consent to
early termination?
Chapter 6
– Liability of judges
53.
This Chapter deals with the disciplinary and
criminal liability of judges and does so in great detail. The legal effects
may be various disciplinary measures or early (dosrochnyi) dismissal.
Unlike a simple dismissal with respect to judges of the Supreme Court and the Constitutional Court, a qualified majority in Parliament is not required. The decision of
Parliament should, in any case, be based on a decision by the Council of
Judges.
54.
Article 28 deals
with disciplinary liability of judges and has to be read in conjunction with Article
6, which sets out the duties of the judge. Two possible penalties are
provided for: an observation or reprimand, and early dismissal from office.
55.
Violation of the obligations contained in Article
6.1.1 and 6.1.2 are punishable by either penalty. These obligations are
somewhat vague “Anything that might besmirch the authority or dignity of a
judge” may be open to a subjective interpretation. This provision
should be rendered more precise and explain what sort of behaviour comes under
“besmirching” the authority or dignity of a judge. Ms Sydykova explained
that at the moment, unethical behaviour is not covered by the law and the
Council therefore has to deal with each case individually.
56.
Violation of the obligations contained in Article
6.1.3 and 6.1.7 lead to an observation for a violation, a reprimand for a
second and early dismissal for a third. It may be that some greater
flexibility would be appropriate. A first violation might be very serious,
for example, a failure to deal with a serious conflict of interest or to make a
correct declaration of property or income. Conversely, a second or third
violation might be trivial, such as a failure to comply with the rules of
working arrangements in some trivial respect. Breaches of Article 6.3 and
6.5 lead to early dismissal (these relate to taking part in a political
activity or entrepreneurial activity or other work).
57.
According to Article 29.1, complaints may
be made by any individual or legal entity, or public authority, or the
president of a court. They may also be instituted by the private opinion of a
higher-ranking court. This latter provision seems unjust because it is
impossible to defend oneself against a complaint that is not disclosed to the
person affected. A judge cannot defend him or herself against a complaint he
or she is unaware of.
58.
After complaint, the Council of Judges
establishes a committee to investigate. This committee has extensive powers to
question the judge, the complainant and witnesses. The judge against whom the
complaint is made is to be given “sufficient time to familiarise themselves
with the case materials.” The draft Law does not indicate that the judge
has the right to confront and question witnesses or make submissions. There is
no reference to a right to legal representation.
59.
After examining the investigation committee’s
report, the Council of Judges makes a decision. There is no provision for
an appeal to a court of law and this omission should be rectified (see also
CDL-AD(2007)028, paragraph 25, Judicial Appointments). The ultimate
decision to dismiss the judge is then taken by Parliament at the proposal of
the President, based on the Council of Judges’ decision. It is not clear
whether the President and Parliament have a discretion in the matter and if so,
by what criteria it is to be exercised.
60.
Article 30
concerns the bringing of criminal proceedings against a judge. The decision to
do so must be taken by the Prosecutor General and he must have the consent of
the National Council. Likewise, administrative proceedings require the
National Council’s consent. The National Council must refuse consent if the
proceedings were “prompted by the statute adopted by the judge in the
exercise of their judicial powers.” It is not clear whether this is the
only basis on which consent can be refused. It is not clear how exactly these
provisions relate to those concerning the judge’s immunity, but presumably they
are intended as an exception.
Chapter 7
– Social guarantees of the status of judges
61.
The draft Law provides for guarantees for
salaries, official accommodation, paid leave, pregnancy and childbirth leave,
medical insurance, compensation for work related injury, life insurance, death
benefit, pensions, lump sums and protection where there is a threat to the
judge. The provisions seem appropriate.
CONCLUSION
62.
In a constitutional situation where the
presidential powers are too wide (see CDL-AD(2007)045,
paragraph 35, Opinion on the Constitutional Situation in the Kyrgyz Republic), a strengthening of judicial independence is highly welcome.
The draft Law is therefore necessary and deserves praise.
63.
Its general principles are excellent, in
particular the manner in which judges (with the exception of the Constitutional Court judges) are elected or appointed and the regulations on dismissal are
in line with standards.
64.
Nevertheless, the following modifications are
recommended:
(1)
Article 2.1: its enumeration of the legislation
is not exhaustive and therefore might be taken out.
(2)
Article 4: might be redrafted to define the type
of distinctions that exist in the status of judges and the justification for
such distinctions.
(3)
Article 6.1.2: the obligations in this provision
should be rendered more precise, as they may be open to a subjective
interpretation.
(4)
Article 8: with respect to advancement, a
proposal is made by the National Council of Judges to the President for the
advancement of a judge – the Venice Commission recommends that the
decision-making process in this Council be included in this draft Law.
(5)
Article 13: should regulate more clearly the
tenure of office of judges.
(6)
Articles 11 and 14: seem to go too far in
providing for complete immunity of judges – there should be no immunity from
criminal liability if a judge commits a crime. It is reasonable to grant
immunity from civil suit to a judge acting in good faith in the performance of
his or her duty. But, it should not be extended to a corrupt or fraudulent act
carried out by a judge.
(7)
A provision should be added to the draft Law
that covers and regulates the process of selecting candidates for the office of
president of the Constitutional Court and president of the Supreme Court.
(8)
The procedure for selecting candidate judges for
the Constitutional Court should be more transparent. The Venice Commission
therefore recommends that there should be input from a body, such as an expert
committee or the Judicial Council, who would vet the suitability of
candidates for election.
(9)
Furthermore, it is not clear what information is
kept in the judges’ personnel files that are considered by the Council in deciding
which candidates are submitted to the President and who compiles them.
(10)
Article 15.9: is unclear as to whether or not
the Council, if the President and Parliament fail to appoint anyone, is to look
at the application again.
(11)
With respect to the competition for local
judges, the applicants may, inter alia, supply other documents and where
serving judges are concerned, their documents shall contain private opinions -
this might be revised as it is not transparent.
(12)
The Venice Commission recommends that a judge
should first resign before being able to contest political office, because if a
judge is a candidate and fails to be elected he or she is nonetheless identified
with a political tendency to the detriment of judicial independence.
(13)
Furthermore, it should be made clear that the
decision made by the President for either suspending or restoring the powers of
a judge is not a discretionary decision.
(14)
Article 26: sets out the grounds for dismissal
from office and in its last point refers to “activity incompatible with the
office of judges”. This should be clarified, as Article 26 already
enumerates the grounds and it should be made clear who determines this.
(15)
Article 26.3: refers to early dismissal,
but there are no criteria for such an early dismissal, it might
be suggested that this provision be deleted. The procedure to be adopted is
not set out and it is not even clear that any grounds must be stated or what
rights of defence the judge has. There is also no provision for the
involvement by an expert body.
(16)
Article 26.4: it would be desirable to include
criteria or procedures for the dismissal of a judge by the President on the
proposal of the National Council of Judges.
(17)
Article 29.1: provides that complaints may also
be instituted by private opinion of a higher-ranking court, which seems unjust
because it is impossible to defend oneself against a private (secret) complaint.
(18)
Article 29.3: the draft Law does not indicate
that the judge has the right to confront and question witnesses or make submissions.
There is no reference to a right to legal representation.
(19)
Article 29.4: there is no provision for
an appeal to a court of law and this omission should be rectified.
65.
It is important to note that, sometimes, the
problem with Kyrgyz laws seems to be not so much the laws themselves, but their
interpretation and application in practice. In this case, the decision-making
process of the National Council of Judges and the Council of Judges must be
analysed.
66.
It is of course difficult to predict what kind
of effect this draft Law will have, however it can be stated that after taking
on board the recommendations, it will provide a good basis for the development
of judicial independence and integrity.
67.
The Venice Commission stays at the disposal of
the Kyrgyz authorities for any further assistance.
