EUROPEAN COMMISSION FOR
DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
opinion on
THE DRAFT AMENDMENTS TO
THE CONSTITUTIONAL LAW ON THE
SUPREME COURT
AND LOCAL COURTS
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 Hjörtur TORFASON (Member, Iceland)
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 latter is dealt with in this
opinion. Laws (3) to (5) are dealt with in separate opinions and laws (1) and
(2) were dealt with in Opinion 481 (CDL-AD(2008)029).
2. The present opinion was drawn up on the basis of
comments by Ms Nussberger (CDL(2008)100) and Mr Torfason (CDL(2008)147), who were
invited by the Venice Commission to act as a rapporteurs.
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 77th Plenary Session of the Venice Commission (Venice, 12-13 December
2008).
GENERAL REMARKS
5. The aim of
the draft Law on amending and supplementing the Law “on the Supreme Court of
the Kyrgyz Republic and local courts” is to bring the Law “on the
Supreme Court of the Kyrgyz Republic and local courts”, adopted on 18 July
2003, in conformity with the new Constitution of Kyrgyzstan, adopted by
referendum on 21 October 2007.
6. This Opinion
is based on two documents: (1) a comparative table (English translation) and
(2) 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). An English
translation of the Law as amended has subsequently been furnished.
7. The
amendments introduced by the draft Law concern, in particular, 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 courts’ staff etc.).
8. Article
86 of the Constitution deals with the Supreme Court in the following
manner: “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.”
9. In the Law, the organisation and activity of the
Supreme Court are mainly dealt with in Section II (Articles 12-24). As
provided in Article 13, the Court is composed of 35 justices, i.e. a President,
a first Deputy Vice-President, 2 other Vice-Presidents and 31 judges. The
Court is to operate with three benches of judges, i.e. (1) a bench for criminal
cases and administrative infringements, (2) a bench for civil cases and (3) a
bench for administrative and economic cases. The membership of the benches is
established by the Plenum of the Court (i.e. the entire body of justices), and
they are to be headed by the respective Vice-Presidents of the Court (Article
17). For the hearing of individual cases, the benches normally will sit in
panels of three judges (Article 13.3).
10. The system of local
courts of Kyrgyzstan is not directly set out in the Constitution, which mainly
provides (in Article 83.6) that the judges of these courts are to be
appointed by the President of the Republic at the proposal of the Judicial Council.
The structure and activity of the local courts are mainly dealt with in Section
III of the former Law (Articles 25-36), which provides for the formation
of these courts by the President consistently with the said Article of the
Constitution. The draft Law has now increased the size of Article 25 by
adding the provision that the number of local court judges shall be established
by the President in accordance with the workload norms for the judges and the
number of court staff.
11. According to the Law,
the local courts shall be (1) Oblast (province) Courts and courts equated
thereto (i.e. the Bishkek Municipal Court and the Military Court of the Republic),
and Rayon Courts and courts equated thereto (i.e. courts for districts or a
town or city, municipal courts and courts of military garrisons). The Oblast
Courts are to operate with benches similar to those of the Supreme Court (Article
27) and will sit in panels of three judges and usually act as courts of
second instance (Article 30.6 and Article 30.7). In the Rayon
Courts, which are exclusively courts of first instance (Article 35.1), cases
normally will be heard by a single judge or, where procedural laws so provide,
by a judge with the participation of not less than 2 judicial assessors (Article
35.3).
12. As
favourably noted by the Venice Commission in its Opinion (CDL(2007)045) on the
Constitutional situation in the Kyrgyz Republic, the main change introduced by
the Constitution of 2007 is the creation of a National Judicial Council (see
Article 84.5 and 84.6 of the Constitution). As a result, the Supreme Court has
lost a number of competences, especially with respect to disciplinary
proceedings.
13. The results
brought on by these changes in the Constitution cannot be properly assessed
because it is unclear how the new Judicial Council is going to work. This
Opinion will therefore focus on issues that are regulated in a comprehensive
manner by this draft Law.
LAW ON THE
SUPREME COURT AND LOCAL COURTS
I. Responsibility
for the execution of judgments
14. The draft
Law contains a regulation, Article 9.2, ,which seems to mirror Article
89.2 of the Constitution, but adds a reference to “…inappropriate
supervision on the part of a judge of the Kyrgyz Republic of the execution of
their judicial acts…”. The English version of the draft Law is not
entirely clear, but the wording seems to provide for a liability of the judge
in this context. The inference seems to be that the actual liability will be
determined by another law (such as the penal code and/or codes of legal
procedure).
15. It is important
to underline that, as a rule in European practice, it is not the judge’s
task to supervise the execution of judgments. There are specialised bodies
which deal with this. The judge will not have the means nor the time to ensure
that judgments are implemented in practice. It therefore seems to be
inappropriate to establish the judge’s liability in this context. This could
even be used to undermine the judges’ independence.
16. It may be that this
requirement for judicial supervision of the implementation of judgments is not
primarily intended to refer to conventional enforcement by bodies such as a
sheriff or chief of police, but rather to the manner in which the results of
judgments are in fact received or treated by the authorities in the public
sector whose area of jurisdiction is affected. In other words, the requirement
perhaps is to be considered in the light of provisions such as Article 19.1
of the former Law, which states that simultaneously with the rendering of a
decision on a case, the Supreme Court shall, where necessary and through a
special ruling, draw the attention of governmental authorities (state or local)
or legal entities or officials to legal infringements found in the case, the
causes therefore and the conditions under which such infringement was
possible. However, the problem with supervising the implementation will be
similar even on this basis. Moreover, the concept of a special ruling as under
Article 19 also raises the issue that a court should in principle speak only
through its judgments (which should be self-sustaining as far as possible), and
it is to be hoped that these rulings can be handled by the Court in the light
of that principle.
II. Powers
of the President of the courts
17. The
President of the Supreme Court and the presidents of local courts have
extraordinarily vast powers. Some of the amendments aim to reduce the scope of
these powers, for instance, the competence to initiate disciplinary
proceedings is transferred to the Judicial Council, which is welcomed.
In the light of this change, it is important to underline that the Venice
Commission strongly recommends that an appeal to an independent court be
available against any disciplinary decisions rendered by the Judicial Council. Nevertheless, some
of the remaining competences are open to criticism.
18. The
competence that raises the most concern is the power of the president of the
court (both Supreme Court and local courts) to allocate cases to judges (Articles
20.3, 31.3, 32.3 and 36.2). This power can easily be abused, for
instance, by not allocating politically sensitive cases to certain undesirable
judges. It may also be used as an instrument of pressure, as particular judges
may purposely be overloaded with low-profile cases.
19. The Venice
Commission therefore recommends that safeguards against any abuse be
introduced. It would be helpful if abstract criteria for the redistribution of
cases were laid down by the law. This may be done by proceeding in
alphabetical order of the claimants’ names or on the basis of a computerised
system. The specialisation of the judges may also be taken into account. It
is important that the criteria for the redistribution of cases be transparent.
III. Powers
of the plenum of the Supreme Court
20. The Plenum of the
Supreme Court comprises the entire body of court judges, and to that extent has
the character of a general meeting. It is convened by the President of the
Court as necessary and not less than twice a year, and can adopt resolutions
with 2/3 of the judges present (Article 15.3 and Article 15.5).
Its functions include the election of presidents of the benches of judges from
among the vice-presidents of the Court and the establishment by election of the
membership of the respective benches, in each case by secret ballot (Article
15.3, see also Article 17 on the benches). The Plenum also has the
power to adopt Rules of the Supreme Court on matters relating to the internal
activity of the Court (Article 15.7).
21. The power
of the Plenum of the Supreme Court to hand down clarifications on questions
concerning judicial practice was retained in Article 15. Similar
regulations are applied in other legal systems, such as in the Russian judicial
system.
22. In the case
of Kyrgyzstan, it seems that these “clarifications” are handed down by the Plenum
on its own initiative (Article 15.2.1). It is understood that these
‘clarifications” are non-binding and present the analysis of the former
case-law. This power may be at odds with the principle of the separation of
powers, depending on the way in which it is exercised. The power (and the
function under Article 15.2.2 concerning the application of laws by local
courts) also tend to increase the hierarchy in the judicial system and affect
the necessary independence of the lower courts, who should be addressed by the
Supreme Court through its judicial decisions. Under the former Law, these
clarifications were to be binding on the lower courts and they could only be
adopted with the full Plenary in session (Article 15.2.1 and 15.2.6). The
provision for this binding effect has now been deleted by the draft Law and
resolutions on the matter will be subject to the ordinary quorum.
23. While this
amendment is significant and is to be welcomed, it remains to be seen whether
it will lead to a major change in practice.
24. The manner
of voting in the Plenum of the Supreme Court votes has not been changed. This
might raise doubts as to the independence of the judiciary. According to Article
15.5, as a rule, decisions are adopted by open ballot. Article 15.7
provides that the Minister of Justice and the Prosecutor General may be
invited to participate in the meetings of the Plenum. In practice, the voting
of judges might be influenced by the presence of the high representatives of
the executive – this does not serve judicial autonomy and this provision should
be reconsidered.
25.
Furthermore, the wording of Article 15.10, according to which the plenum
“shall consider other matters of organisation and activity of courts” is
quite vague. The competence of the plenum might be unduly increased on the
basis of this provision.
IV. Establishment
of the number of judges at local level
26. Draft Article
25 provides that the number of judges of the local courts shall be
established by the President of the Republic. This provision presumably is to
be seen in the light of Article 86.3 of the Constitution, according to
which the judges of the lower courts are to be appointed by the President at
the proposal of the Judicial Council. Ms Sydykova, the Chair of the
Constitutional Court of Kyrgyzstan informed the Venice Commission that no
reduction in the number of judges is to be made. For future purposes, however,
from the point of view of judicial independence and integrity, it should be an
aim to have the number of local judges spelled out in the Law itself as far as
reasonably possible.
V. Other
issues
27. Most of the
changes relate to management issues (the creation of the office of the First
Vice-President of the Supreme Court, rules on the court administration and
staff). It should be ensured that the staff does not interfere with the tasks
of the judiciary. The adjudication of cases must be exclusively in the hands of
independent judges.
28. The draft Law includes
certain amendments with respect to the management and financing of the courts
and the rules concerning the administrative and other court staff. Some of
these provisions are not immediately clear form the text of the Law itself.
Thus Article 31.4 on Oblast Courts and Article 36.4 on Rayon
Courts provide that the Court President shall implement the overall management
of the Court staff and “submit proposals to the head of the state authority
responsible for providing the organisational, material and technical and
other support for the activity of local courts and ensuring the execution of
judicial acts”.
29. In general, however,
power with respect to staff of the courts of each instance is largely vested in
the Court Presidents, and the provisions of the Law in support of the budgetary
independence of the judiciary appear to remain in place.
30. Insofar as
the aim of the changes is to improve the proficiency of management, they are to
be welcomed.
CONCLUSION
31. Some of the
amendments have the potential of improving the proficiency of the
administration of justice. The compatibility of most of the amendments with
the principle of the rule of law will depend on their implementation. The
judges’ liability for the non-execution of judgments as well as the competences
of the presidents of courts to assign cases to specific judges, raise concern
in view of the principle of the rule of law.
32. The Venice
Commission therefore recommends the following:
- Article 9.2
seems to provide a liability of the judge in the context of the
supervision of the implementation of judgments. This provision should be
revised as it should not be the judge’s task to supervise the execution of
judgments – there should be a specialised body set up to deal with this;
- Articles 20.3,
31.3, 32.3 and 36.2 the powers of the president of the court (both Supreme
Court and local courts) to allocate cases to judges should be revised, as
this may give rise to abuses and be used as an instrument of pressure
against judges. The Venice Commission recommends that the allocation of
cases be carried out on the basis of abstract criteria laid down in
advance, for instance proceed in alphabetical order of the claimants’
names;
- Article 15.7
provides that the Minister of Justice and the Prosecutor General may be
invited to participate in the meetings of the plenum of the Supreme Court.
This provision should be reconsidered, as the presence of such high
representatives of the executive could affect the voting of the judges;
- Article 15.10
concerning the plenum of the Supreme Court, should be reworded as it might
unduly increase its competence;
- It should be
an aim to have the number of judges at local courts established within the
Law itself as far as reasonably possible.
33. The Venice
Commission remains at the disposal of the Kyrgyz authorities for any further assistance.
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