In the absence of juries, waiting for a final decision from a judge in Kyrgyzstan. (Photo: Dean Cox.)
Kyrgyzstan's trouble creating effective, independent and corruption-free political institutions remains one of the biggest threats to the country's long-term stability. Reforming the judiciary, which one recent poll rated as the country's most loathed institution, would go a long way toward rebuilding public confidence in the democratization process.
Though Kyrgyzstan enjoys a more pluralistic political system than its neighbors, a Kyrgyz court session often resembles a legal circus in which verdicts are determined in advance. Judges lack legal expertise and remain beholden to the executive branch. The Prosecutor General’s office, where officials are appointed by the president, retains disproportionate influence over judges, who issue verdicts. Conviction rates of almost 100 percent in criminal cases – the hallmark, say observers, of an authoritarian state rather than an aspiring democracy – and perceptions of systemic corruption, have undermined the public’s faith in due process.
Among defense lawyers and civil society activists there is cautious support for the introduction of jury trials. Nurbek Toktakunov, the lawyer of jailed ethnic Uzbek human rights activist Azimjan Askarov, believes that such a move is necessary for routine court cases. Acting on their own, Kyrgyz judges have proven unable or unwilling to deliver acquittals even when trials are marred by “blatant procedural violations, which occur in nearly every case.”
But precedents for jury service in post-Soviet countries are rare. Both Kazakhstan and Georgia have introduced juries for murder cases, but have been slow to expand their writ to other crimes. Juries are also unpredictable.
Currently, much of the burden of introducing change is shouldered by the Council for Selection of Judges – a body created in 2011 under provisions in the 2010 constitution – whose attempts to select judges for positions ranging from the lowest village courts to the Supreme Court have already been the subject of heated debates in parliament and on the street.
Opponents of the Council claim that the selection process was irreversibly corrupted because political parties, who appointed 16 of the 24 members, were involved in the process. The Council’s former head, judge Zamirbek Bazarbekov, stepped down during the controversy in late August, but despite repeated street rallies calling for the Council to be disbanded altogether, its membership remains intact.
A March 30 report by the Organization for Security and Cooperation in Europe, recommended, “de-politicizing the composition of the Council and reducing the role played by parliament and the president.” During the report’s launch, an OSCE representative said, “Only a body that is free from political influence can select truly independent and impartial judges.”
But Shamaral Maychiev, the Council’s current head, says that even if the selection process is completely transparent and clean, it might still result in discontent. Because selection criteria dictate that every judge must have a minimum of five years’ experience, recycling judges is inevitable.
“We have told the government that they need to prepare society for the fact that some of these judges might have histories. They can only be the best of what there is,” Maychiev told EurasiaNet.org.
In light of that limitation, Maychiev says, legislators must create an environment where the judges can operate more independently and with public oversight. Citing examples from Estonia, where judges must agree to being regularly wiretapped before assuming their positions, and Georgia, where communications between judges and parliamentarians are regulated, Maychiev argues that much can be done to create a culture of due process. Technological infrastructure, he adds, is also necessary to monitor “basic things, like court protocol.
“Often judges write whatever they want to write, rather than what actually happened,” he says.
Toktakunov, the lawyer, is skeptical of judges’ capacity for self-improvement, and adds that adjacent bodies such as the Prosecutor General’s office, which he argues has “too many functions,” must be restructured or even scrapped. “The whole judicial system must be recreated from scratch,” he said.
Indira Zholdubaeva, the head of judicial reform in the president’s office, argues that change in the courts cannot happen overnight. While jury service may be desirable in the long term, she says, it is currently unrealistic for a society, which, two years on from the April 7 uprising, remains “highly politicized.” Due to widespread poverty, she adds, the price of buying off jurors would “not be very high.”
Yet the current system may also have its costs. President Almazbek Atambayev’s nascent administration needs no reminder that perceptions of judicial corruption were a key factor in driving Askar Akayev from power in 2005’s so-called “Tulip Revolution,” and that Kurmanbek Bakiyev’s manipulation of the courts cost him allies before his own 2010 ouster. A US government-funded survey by Bishkek’s SIAR Research and Consulting in February found that the judiciary eclipsed the police as the country’s most hated institution, while 60 percent of people believe court officials are “thoroughly corrupted.”
While underscoring that reforming the judge selection process is merely the first stage of broader improvements to the judiciary, Zholdubaeva, the president’s representative, admits that after two decades of controversial court decisions, the public’s impatience for reform cannot be taken for granted. “We know that when the selection process finishes there could be unrest, but we will do what we can to minimize it,” she told EurasiaNet.org.