EUROPEAN COMMISSION FOR
DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
opinion on
THE CONSTITUTIONAL LAW
ON BODIES OF JUDICIAL
SELF-REGULATION
OF KYRGYZSTAN
adopted by the Venice Commission
at its 77th Plenary
Session
(Venice, 12-13 December 2008)
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 77th Plenary Session of the Venice Commission (Venice, 12-13 December
2008).
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. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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).
17. 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.
18. 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. If - as is understood from the
explanation given by Ms Sydykova, Chair of the Constitutional Court of
Kyrgyzstan - all these decisions only have a recommendatory character, then it
may be assumed that they do not interfere with the principle of the separation
of powers.
19. 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.
20. 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).
21. 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.
CONCLUSION
22. 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.
23. The Venice
Commission would, however, recommend the following:
- 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.
24. The Venice
Commission remains at the disposal of the Kyrgyz authorities for any further
assistance.
*
* *
