JUSTICE SYSTEM IN KYRGYZSTAN

JUSTICE SYSTEM IN KYRGYZSTAN

Kyrgyzstan Legal system: civil law system which includes features of French civil law and Russian Federation laws. Subordinate courts: Higher Court of Arbitration; oblast (provincial) and city courts. International law organization participation: Kyrgyzstan has not submitted an International Court of Justice (ICJ) jurisdiction declaration; non-party state to the International Criminal Court (ICCt). [Source: CIA World Factbook =]

Social control has traditionally been enforced through households and Islamic law. The head of the highest court in the land for a time was a woman, Cholpon Bayekova. The constitutional amendments of 2003 expanded the scope of the Supreme Court in civil, criminal, and administrative proceedings. Many protections of Western jurisprudence have not been incorporated into Kyrgyzstan’s system, which retains many features of the Soviet system. The right to counsel and the presumption of innocence of the accused are guaranteed by law but often not practiced. There is no trial by jury. Reform legislation under consideration in 2006 would establish a jury system and bolster the independence of the judicial branch. [Source: Library of Congress, January 2007 **]

People have traditionally shown total respect for local khans, emirs or chiefs, who in turn have traditionally not shared power or limited it by law. Social control has traditionally been exerted through public opinion, especially that of local elders, known in many places as “white beards” (aksakal in Kyrgyz and oqsoqol in Uzbek).

The justice system is modeled after the Soviet justice system. There is no freedom in the justice in political and criminal trials the conviction rate is over 99 percent. Judges have been called "shamefully compliant." One judge dismissed claims of torture victim because "they couldn’t name their torturers."

In general, the rule of law is not well established in the republic. Corruption and nepotism are widespread. Many people feel that the rich can do what they want and that the poor are helpless. The one area of the law that has flourished in Kyrgyzstan is libel law, which public figures have used widely to control the republic's press. By contrast, the observance of laws designed for the regulation of the economy is not uniform or consistent, even by government officials. The functioning of the State Arbitration Court, which has responsibility for financial and jurisdictional disputes within government agencies and between government agencies and private enterprises, has been extremely irregular and lacking in oversight by any other government institution.[Source: Library of Congress, March 1996, everyculture.com]

Judicial Branch of Kyrgyzstan

Judicial branch: highest courts): Supreme Court (consists of 25 judges); Constitutional Court (consists of 9 judges). Judge selection and term of office: Supreme Court and Constitutional Court judges appointed by the Supreme Council on the recommendation of the president; Supreme Court judges serve for 10 years, Constitutional Court judges serve for 15 years; mandatory retirement at age 70 for judges of both courts [Source: CIA World Factbook =]

The judiciary has a reputation for not being independent. Although nominally independent, the judicial branch is substantially under the control of the president, who recommends appointments to both of the main judicial institutions: the Supreme Court and the Constitutional Court. (The constitutional amendments of 2003 abolished a third national court, the Supreme Court of Arbitration, awarding its role as arbiter of commercial disputes to the Supreme Court.) The Supreme Court is the highest appeals court for civil and criminal cases. [Source: Library of Congress, January 2007 **]

The Constitutional Court, whose chief justice is one of very few women holding significant national office, rules on constitutional interpretations and on the validity of presidential elections. The members of those courts are elected to 10-year terms by the Supreme Council, after being nominated by the president. The president appoints judges to seven-year terms at the subnational levels. High-profile cases have shown the courts’ bias toward the executive branch. In 1998 the Constitutional Court ruled on a technicality that President Akayev Akayev (1990-2005) could stand for a third presidential term, contrary to the constitutional prohibition. In the early 2000s, criminal trials of opposition figures demonstrated substantial partisanship by the courts toward the executive branch. **

A Supreme Court was appointed, but its functioning was delayed in 1995 by parliament's refusal to approve Akayev's nominee as chief justice. Although the parliament of 1991-94 also mandated a national constitutional court (over the objections of Akayev), that body never has been established. [Source: Library of Congress, March 1996 *]

Judges and Courts in Kyrgyzstan

Although the constitution provides for an independent judiciary, Kyrgyzstan’s court system is widely seen as under the influence of the prosecutor’s office. Low salaries make the bribery of judges commonplace. Most cases originate in local courts; they then can move via the appeals process to municipal or regional courts, with the Supreme Court the final court of appeals. Property and family law disputes and low-level criminal cases are heard by traditional elders’ courts, which are loosely supervised by the prosecutor’s office. Economic disputes and military cases are heard in specialized courts. [Source: Library of Congress, January 2007 **]

According to the constitution, judges are to be chosen by the president, subject to parliamentary confirmation. Potential judges must be Kyrgyzstani citizens between thirty-five and sixty-five years of age who have legal training and at least ten years of legal experience. The length of judges' tenure is unlimited, but judges are subject to dismissal for cause by parliament. In the mid-1990s, the judicial system remained incomplete both in the filling of prescribed positions and in the establishment of judicial procedures and precedents. [Source: Library of Congress, March 1996 *]

The court system remains essentially unchanged from the Soviet era. Nominally there are three levels in the court system: local courts, which handle petty crimes such as pickpocketing and vandalism; province-level courts, which handle crimes such as murder, grand larceny, and organized crime; and the Supreme Court, to which decisions of the lower courts can be appealed. However, there was persistent conflict between Akayev and the legislature over the composition and authority of the Supreme Court, as well as over Akayev's choice of chief justice. As in the Soviet system, the office of the state procurator, chief civilian legal officer of the state, acts as both prosecuting attorney and chief investigator in each case. [Source: Library of Congress, March 1996 *]

The protections for individuals accused of crimes remain at the primitive level of Soviet law. According to law, the accused can be held for three days before a charge is made, and pretrial detention can last for as long as a year. There is no system of bail; the accused remains incarcerated until tried. Both the police and forces of the State Committee for National Security have the right to violate guarantees of privacy (of the home, telephone, mail, and banks), with the sanction of the state procurator. In theory search warrants and judicial orders for such things as wiretaps only are issued by authority of a judge; in practice this is not always done.

Corruption and Flaws in the Kyrgyzstan Legal System

According to the U.S. Department of State: “The law provides for an independent judiciary, but judges were subject to influence or corruption, and there were instances where the outcomes of trials appeared predetermined. Multiple sources, including NGOs, attorneys, government officials, and private citizens, asserted judges paid bribes to attain their positions. Many attorneys asserted that bribe taking was ubiquitous among judges and described trying to use legal arguments to secure justice as “Don Quixote tilting at windmills.” [Source: “Country Reports on Human Rights Practices for 2014: Kyrgyzstan,” Bureau of Democracy, Human Rights and Labor, U.S. Department of State]

Chyngyz Kambarov wrote in Voices from Central Asia: “The reformation of the court system in Kyrgyzstan began after the 2010 coup, but has not been completed. Many experts say that the new government, in place since 2010, could not ensure the true independence of the court system. Replacing older judges merely brought people who were even more incompetent and corrupt into the court system, actually increasing the level of corruption. [Source: Chyngyz Kambarov PhD, Lieutenant Colonel of Police of the Kyrgyz Interior Ministry, Voices from Central Asia, No. 20, January 2015 /=\]

“Organized crime groups use this corruption to pay their way out of detention when they are arrested. One of the top “Thief in law” criminal leaders, Aziz Batukayev, was arrested, but released by a local court after convincing authorities he was dying of cancer. From Chechen origin, he returned to Grozny, the capital of Chechnya, and continues to control his crime organization in Kyrgyzstan from a distance. A commission formed by the Parliament of Kyrgyzstan found that the release of this “Thief in law” was deliberately prepared and organized by certain high-ranking officials in the penal and court systems, and other state agencies. The commission recommended the dismissal of some of the most involved high-level state officials. /=\

“The Chairman of the Supreme Court of Kyrgyzstan argued, on the contrary, that law enforcement agencies very often detain suspects whom they claim is a member of some organized criminal group. In reality, however, the suspected person has never committed a serious crime but is only charged with polygamy. These counter accusations illustrate how difficult it is to root out corruption in law enforcement agencies and the court system. Contemplating the failure of processes of court reform, a former judge of the Supreme Court, Rita Karasartova, puts forward the following reasons for such failure: A reluctance of the political leadership to conduct real reform; its desire to have obedient judges; and the illusion of progressive change through the selection of new judges. The most important thing in court reform is to achieve the independence of the judicial system. The selection of judges should not depend on political authorities. The powers-that-be must forget about suppressing or influencing the courts if they really want to make substantial reforms to the court system. Unfortunately, many judges are selected on the basis of their loyalty to certain politicians, and are ready to serve those interests, putting aside the rule of law. /=\

“It is difficult to make reforms in conditions of political and socio-economic instability. After the coups in 2005 and 2010, the country slipped economically by about ten years. The coups left state institutions tremendously shaken and demoralized many state servants at all levels. The level of people’s trust in government also decreased. These circumstances play into the hands of organized crime groups, as well as terrorist organizations, which carefully observe the political and social dynamics in Kyrgyzstan specifically, and Central Asia as a whole.” /=\

Arrest Procedures and Treatment of Detainees in Kyrgyzstan

According to the U.S. Department of State: “According to the criminal procedure code, only courts have the authority to issue search and seizure warrants. While prosecutors have the burden of proof in persuading a judge that a defendant should be detained pending trial, activists reported detention without a warrant remained common, particularly for ethnic Uzbek defendants accused of crimes related to the possession of banned religious materials. The law authorizes the use of house arrest for certain categories of suspects. There were also reports law enforcement officials selectively enforced the law by incarcerating persons suspected of minor crimes while not pursuing those suspected of more serious ones. [Source: “Country Reports on Human Rights Practices for 2014: Kyrgyzstan,” Bureau of Democracy, Human Rights and Labor, U.S. Department of State \*\]

Once detained, authorities can hold a detainee legally for 48 to 72 hours before filing charges; authorities generally respected these limits. The law requires investigators to notify a detainee’s family of the detention within 12 hours, but officials inconsistently enforced this provision. Following official charges, the courts have discretion to hold a suspect in pretrial detention up to one year, after which they are legally required to release the suspect. There is a functioning bail system. \*\

“Persons arrested or charged with a crime have the right to defense counsel at public expense. By law the accused has the right to consult with defense counsel immediately upon arrest or detention, but in many cases the first meeting did not occur until the trial. Human rights groups noted authorities usually denied attorneys to arrested minors, often holding them without parental notification and questioning them without parents or attorneys present, despite laws forbidding these practices. There were reported incidents of authorities intimidating minors into signing confessions.” \*\

Pretrial Detention and Denial of Fair Public Trials in Kyrgyzstan

According to the U.S. Department of State: “According to the penal code, authorities may hold a suspect at a pretrial detention facility during the official investigation. The general legal restriction for the length of investigations is 60 days. Lengthy legal procedures, poor access to lawyers, and limited investigation capacity often lengthened defendants’ time in pretrial detention beyond that, with some being detained legally up to a year...Authorities generally respected court orders. [Source: “Country Reports on Human Rights Practices for 2014: Kyrgyzstan,” Bureau of Democracy, Human Rights and Labor, U.S. Department of State \*\]

In 2012 a court sentenced Mahamad Bizurukov, an ethnic Uzbek citizen of Russia, to life in prison for the alleged 2010 murder of an ethnic Kyrgyz, Almaz Askarov. Bizurukov’s case had continued for four years. After the case was appealed to the Supreme Court in 2013, it was sent back for retrial and moved to the Chui Oblast court in Bishkek. Over the course of the trial, the victim’s relatives physically attacked the defendant, his attorneys, witnesses, and judges. On November 17, judges of the Chui Oblast court ruled they could not make a decision on Bizurukov’s case and remanded it to a lower court for “additional investigation.” The practice of requiring additional investigation, according to attorneys, was common and violated requirements for a speedy trial. Throughout the case, Bizurukov made numerous complaints about due process violations and threats to his safety. \*\

“During the year trials and appeals of ethnic Uzbeks arrested for instigating or carrying out violence against ethnic Kyrgyz during the 2010 unrest continued. According to attorneys, these proceedings did not comply with legal requirements or international standards of fairness. Numerous NGOs described pervasive violations of the right to a fair trial, including coerced confessions, use of torture, denial of access to counsel, and convictions in the absence of sufficiently conclusive evidence or despite exculpatory evidence. International observers reported threats and acts of violence against defendants and defense attorneys within and outside the courtroom as well as intimidation of trial judges by victims’ relatives and friends. Although the number of cases has decreased since 2010, NGOs reported these practices persisted during the year. Numerous NGOs noted defendants from ethnic minorities convicted for crimes in 2010 in politicized trials received the overwhelming majority of life sentences. A representative of the NGO Spravedlivost indicated 97 percent of those who received prison sentences in Jalalabad Region following the June 2010 violence were ethnic Uzbeks. Some ethnic Kyrgyz received fines, probation, and other light sentences. The representative noted that, in Jalalabad, 25 individuals received life sentences for murder or other homicide-related crimes. All of those sentenced were ethnic Uzbek. According to the Prosecutor General’s Office, five cases of defendants charged with involvement in the 2010 events were ongoing.” \*\

Trial Procedures in Kyrgyzstan

According to the U.S. Department of State: “The constitution and law provide for an independent and impartial judiciary in civil matters. As with criminal matters, citizens believed the civil judicial system was subject to influence from the outside, including by the government. Local courts address civil, criminal, economic, administrative, and other cases. The Supreme Court is the highest judicial authority. [Source: “Country Reports on Human Rights Practices for 2014: Kyrgyzstan,” Bureau of Democracy, Human Rights and Labor, U.S. Department of State \*\]

While the law provides for defendants’ rights, including the presumption of innocence, the government regularly violated these rights. The customs and practices of the judicial system continued to contradict the principle of presumption of innocence, and pretrial investigations focused almost exclusively on the collection of sufficient evidence to prove guilt. If a court ruled it could not determine guilt or innocence and there was insufficient evidence to bring a case to trial, the case was returned to the investigative bodies for further investigation, during which time suspects may remain under detention. There is no protection against double jeopardy. \*\

Attorneys routinely complained that judges returned cases to the investigator if there was not enough evidence to prove guilt. Attorneys generally believed that, once a case made it past investigation and to trial, a defendant was almost guaranteed some sort of conviction. Observers from local and international NGOs described how the expectation that police should successfully close a high percentage of cases drove the high conviction ratio. Judges, according to attorneys, gave a defendant a suspended sentence regardless of how little evidence existed to sustain a prison term. The law requires courts to inform defendants promptly and in detail of the charges against them. Defendants should be provided with an interpreter if they need one. By law, trials should be conducted in the state language, Kyrgyz, or the official language, Russian. In a majority of trials, procedure required defendants to sit in caged cells in the courtroom. \*\

Trials were generally open to the public, unless they involved state secrets or privacy concerns of defendants, and courts announced verdicts publicly, even in closed proceedings. Court officers did not allow some observers in the courtroom at politically charged trials. State prosecutors bring criminal cases before courts, while judges direct criminal proceedings. Criminal cases featured a single judge while three-judge panels conducted appellate cases. Judges have full authority to render verdicts and determine sentences. A law adopted in 2010 calls for jury trials in criminal cases in certain jurisdictions to begin in 2012, but the government delayed its implementation until 2015 due to funding difficulties and inadequate courtroom size. \*\

On June 19, 2014, the parliament passed the Law on the Advocatura and Advocacy Activities, allowing the establishment of an independent, unified national bar mandated to enforce ethical standards and hold a qualification examination. Local attorneys reported concerns with the new law, as membership in the bar could depend on financial and political loyalties and feed corruption. \*\

Treatment of Defendants in Kyrgyzstan

According to the U.S. Department of State: “The law provides for unlimited visits between an attorney and a client during trial. Official permission for such visits is required and was not always granted. The government provided indigent defendants with attorneys at public expense, and defendants could refuse legal counsel and defend themselves. HRW, domestic NGOs, and local attorneys reported some state-provided criminal defense lawyers were complicit with prosecutors and did not properly defend their clients. [Source: “Country Reports on Human Rights Practices for 2014: Kyrgyzstan,” Bureau of Democracy, Human Rights and Labor, U.S. Department of State \*\]

Many observers, particularly in the South, described these lawyers as “pocket attorneys” who would help secure bribes from their client to pass to the police and judges, which would then secure the client’s eventual release. International observers reported the quality of representation was much worse in rural areas of the South than in the capital. In many cases it was hard for individuals accused of extremism-related crimes or other charges connected to the 2010 violence to find an attorney who was not closely connected to police. In some cases NGO observers accused defense attorneys of being incompetent. \*\

The law permits defendants and their counsel to access prosecution evidence, although this was not always granted in advance of a trial, and to attend all proceedings, question witnesses, present evidence, and call witnesses. Courts frequently did not follow these requirements. Witnesses typically were required to testify in person. Under certain circumstances, courts allowed testimony via audio or video recording. Defendants and counsel, by law, have the right to communicate freely, in private, with no limitation on the frequency. Defendants and prosecutors have the right to appeal a court’s decision. An appellate court can increase a lower court’s sentence against a defendant. \*\

Discrimination and Unfairness in the Kyrgyzstan Trial System

According to the U.S. Department of State: “As in previous years, trials of ethnic Uzbeks arrested for instigating or carrying out violence against ethnic Kyrgyz during the 2010 unrest violated legal requirements and international standards of fairness. Over the course of these proceedings, NGOs monitoring the cases and the parents of the accused described pervasive violations of the right to a fair trial, including coerced confessions, use of torture, denial of access to counsel, threats and acts of violence against defendants and defense attorneys within and outside of the courtroom, intimidation of trial judges by victims’ relatives and friends, and convictions in the absence of condemning evidence or despite exculpatory evidence. [Source: “Country Reports on Human Rights Practices for 2014: Kyrgyzstan,” Bureau of Democracy, Human Rights and Labor, U.S. Department of State \*\]

Azimjon Askarov, an ethnic Uzbek human rights activist convicted along with seven codefendants of the 2010 murder of a Bazar Korgon police officer, remained imprisoned at year’s end. In 2012 one of his attorneys filed a formal complaint or “communication” with the UN Human Rights Committee chronicling allegations that the government withheld evidence, intimidated witnesses, and committed acts of torture. Because the country is a signatory to the International Covenant for Civil and Political Rights, individuals can raise instances in which the government has allegedly violated specific provisions of the covenant. The committee can then issue a decision calling on the government to remedy the violations. At year’s end, the committee had not issued a decision on the case. \*\

NGOs and other observers continued to report that crowds often threatened the security and safety of defendants, attorneys, and judges. Authorities typically did nothing to stop these widespread incidents. NGOs reported that spectators attacked their employees during trials, voicing disapproval of the activities of human rights trial monitors. \*\

On January 9, 2014, approximately 20 persons attacked Dinara Medetova, an attorney defending ethnic Uzbek Makhamadzhan Bizurukov for alleged crimes related to the 2010 violence. According to Golos Svobody, the attackers, who included members of the victim’s family, made nationalistic slurs. This was the second incident against Medetova since 2013. \*\

Image Sources:

Text Sources: New York Times, Washington Post, Los Angeles Times, Times of London, Lonely Planet Guides, Library of Congress, U.S. government, Compton’s Encyclopedia, The Guardian, National Geographic, Smithsonian magazine, The New Yorker, Time, Newsweek, Reuters, AP, AFP, Wall Street Journal, The Atlantic Monthly, The Economist, Foreign Policy, Wikipedia, BBC, CNN, and various books, websites and other publications.

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© 2008 Jeffrey Hays

Last updated April 2016

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