Identifier
Created
Classification
Origin
06BISHKEK385
2006-03-23 05:29:00
UNCLASSIFIED//FOR OFFICIAL USE ONLY
Embassy Bishkek
Cable title:  

KYRGYZ JUDICIAL INDEPENDENCE (OR THE LACK THEREOF)

Tags:  KCRM KJUS PGOV KMDR KG 
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VZCZCXRO8795
PP RUEHDBU RUEHLN RUEHVK RUEHYG
DE RUEHEK #0385/01 0820529
ZNR UUUUU ZZH
P 230529Z MAR 06
FM AMEMBASSY BISHKEK
TO RUEHC/SECSTATE WASHDC PRIORITY 6982
INFO RUCNCIS/CIS COLLECTIVE PRIORITY
RUEHAK/AMEMBASSY ANKARA PRIORITY 0504
RUEHBJ/AMEMBASSY BEIJING PRIORITY 1448
RUEHBUL/AMEMBASSY KABUL PRIORITY 0151
RUEAIIA/CIA WASHDC PRIORITY
RHEFDIA/DIA WASHDC PRIORITY
RUEHVEN/USMISSION USOSCE PRIORITY 1827
RUCNDT/USMISSION USUN NEW YORK PRIORITY 1210
RUEHNO/USMISSION USNATO BRUSSELS BE PRIORITY
RUEHBS/USEU BRUSSELS PRIORITY
RUEKJCS/SECDEF WASHDC PRIORITY
RUEKJCS/JOINT STAFF WASHDC PRIORITY
RHEHNSC/NSC WASHDC PRIORITY
UNCLAS SECTION 01 OF 03 BISHKEK 000385 

SIPDIS

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: KCRM KJUS PGOV KMDR KG
SUBJECT: KYRGYZ JUDICIAL INDEPENDENCE (OR THE LACK THEREOF)


UNCLAS SECTION 01 OF 03 BISHKEK 000385

SIPDIS

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: KCRM KJUS PGOV KMDR KG
SUBJECT: KYRGYZ JUDICIAL INDEPENDENCE (OR THE LACK THEREOF)



1. (SBU) Summary: The issue of judicial independence in
the Kyrgyz Republic continues to be problematic, with the
judiciary little more than a tool of the executive branch.
Even with the ouster of President Akayev in March 2005 and
the guarded optimism that judicial reforms might follow,
little has changed to improve the situation of the judiciary
in terms of its actual independence. Salaries remain
woefully low, training insufficient, and corruption rampant
) all resulting in a Kyrgyz public deeply distrustful of the
judiciary. End Summary.

Soviet Legacy Continues
--------------


2. (SBU) As in most post-Soviet states, the legal system in
Kyrgyzstan is still based largely on Soviet and, to a lesser
extent, Tsarist Russian civil law. During Soviet times, of
course, there was no concept of judicial independence, as the
Communist Party controlled the court system. When the Soviet
Union collapsed, this lack of judicial independence continued
in the Kyrgyz Republic, with the executive branch stepping in
to take over the role that the Communist Party had in
directing the judiciary, influencing decisions, and
appointing and removing judges. Even with the changes that
have taken place since independence, the judiciary in the
Kyrgyz Republic still bears a striking resemblance to the
Soviet system, especially as regards judicial independence.


3. (U) Under the current constitution, the judiciary is
divided between two main bodies at the national level ) the
Supreme Court and the Constitutional Court (the High Court of
Arbitration was abolished in 2003, with jurisdiction
reverting to the Supreme Court). The Supreme Court acts as
the highest appeals court for both civil and criminal cases,
while the Constitutional Court oversees only cases involving
constitutional interpretation and presidential elections.
Lower courts include first-tier district or municipal (rayon)
courts and second-tier regional (oblast) courts. Original
jurisdiction rests only with district-level courts, with
regional courts acting only as appellate courts. Separate
courts also exist for commercial and military matters.

Appointment and Training of Judges
--------------


4. (SBU) The appointment and removal of judges is another
area firmly under the control of the executive, with the
President responsible for nominations to the Supreme Court
and Constitutional Court and responsible for appointments to
the lower courts. The removal of judges, except from the
Supreme and Constitutional Courts, continues to be at the
discretion of the President. Although structures are now in
place for the President's appointments to be confirmed by the
Parliament, much remains to be done. In addition to the
problem of judicial appointments, the issue of training is
also quite problematic. Qualifications for judges are rather
low (in general, simply a law degree and 5-10 years'
experience "in the field of law" depending on which court the
judge is appointed) and training provided to new judges is
non-existent.

Judicial Changes under Akayev
--------------


5. (SBU) There have been numerous changes to the judicial
system since independence, culminating in the constitutional
amendments of February 2003, which introduced numerous
structural changes to the judicial system, such as new legal
codes, jurisdiction restructuring and formal establishment of
the independence of the judiciary. The 2003 version of the
constitution stripped the Constitutional Court of most of its
power. It now hears only a small handful of cases each year.



6. (SBU) Even where changes have been made to bring the
Kyrgyz judiciary more in line with internationally accepted
legal norms, these changes have routinely been ignored, as
the judicial system remains firmly under the control of the
executive branch despite constitutional guarantees of

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independence. Under the current constitution, the judicial
branch is guaranteed independence, and transparent rules for
appointing and removing judges are in place, although in
practice these guarantees are routinely violated. Under
President Akayev, little of substance changed with regards to
the issue of judicial independence, with the executive still
retaining significant control over the judiciary at every
level.

Optimism after March Events
--------------


7. (SBU) After the events of last March, and the subsequent
election of a new government, there was reason for some
optimism with regards to the expansion of the judiciary's
role, and even a stated commitment from the government itself
that this issue would be addressed. While advances in the
role and independence of the Parliament have been quite
obvious; similar advances in the role and independence of the
judiciary have not been forthcoming. As with many reforms
initially proposed by the new government, little of substance
has actually developed. The overall result is that the
judiciary still has not incorporated many basic protections
afforded in Western jurisprudence; and in cases where these
protections are present on paper, such as the presumption of
innocence for the accused, they are often ignored.

Payment of Judges and the Issue of Corruption
--------------


8. (SBU) It is widely held that the judiciary itself is
plagued by corruption and inconsistency. Even if judges were
not under the control of the executive with regards to
certain decisions, the issue of bribery, stemming in part
from the woefully low salaries for judges, would add another
very serious impediment to judicial independence. The
Chairperson of the Constitutional Court said publicly that
while an average judge in Kazakhstan makes $2,000 per month,
her salary is only $200 per month. According to Freedom
House's "Countries at the Crossroads 2004", "court decisions
often reflect the interest first of the executive and second
of those who pay bribes." Given the present system, the
level of judicial independence in the Kyrgyz Republic is
extremely low.


9. (U) In a recent survey of 60 judges who attended a
workshop entitled, "Making the Judicial System an Effective
Branch of Government," 98 percent responded that lack of
judicial independence was either, "a serious problem" (20
percent) or "a very serious problem" (78 percent) hampering
the work of the judicial system in Kyrgyzstan. While judges
themselves are certainly part of the problem, until
substantial reforms are undertaken and enforced, little
improvement can be expected.

The Future of Judicial Independence
--------------


10. (U) The Millennium Challenge Corporation, which has
recently decided to grant the Kyrgyz Republic Threshold
Status, identified judicial independence as one area in which
improvement needs to be made before funding can be given.
Currently, two important draft laws are under consideration
that could affect both the independence of the judiciary and
the status of MCA threshold program funding: one draft law
addresses the status of judges and the other the status of
the Supreme Court. The outcome of both draft laws is being
carefully watched, especially in terms of how judicial
independence may be affected.


11. (SBU) Comment: The past year has been a tumultuous one
for the Kyrgyz Republic. Often lost in the shuffle is the
role of the judiciary )- Kyrgyzstan's third and least
visible branch of government. While we have witnessed the
growth of parliamentary independence to some extent over the
past year, we have not witnessed a similar expansion of the
independence of the judiciary. It remains largely under the
influence of the executive branch, and thus not an
independent third branch of government providing much needed

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checks and balances in government.
YOVANOVITCH