For the second time in a year, the country tries to clean up a judiciary plagued by corruption and incompetence.by Askar Erkebaev 17 August 2012
BISHKEK | In December the Supreme Court of Kyrgyzstan upheld a life sentence for Azimjan Askarov, an ethnic Uzbek human rights activist who had been convicted of murder following the violence that erupted in June 2010 between Kyrgyz and Uzbeks in the southern part of the country.
Askarov had been a thorn in the side of Kyrgyzstan’s law enforcement and prison agencies, documenting police brutality and inhumane conditions for inmates. Human rights observers who attended his trial said it was marred by intimidation and attacks by the victim’s relatives on Askarov and his fellow defendants and defense attorneys.
Askarov was unlucky enough to be an Uzbek at a time when, although ethnic Uzbeks suffered the lion’s share of casualties during the violence, they bore the brunt of arrests and prosecutions afterward. From the halls of parliament to local newspapers, the ethnic Kyrgyz establishment was intent on blaming Uzbek leaders for the unrest.
The verdict and the conduct of the original trial were condemned by the European Union, the U.S. Embassy in Bishkek – which cited “a general lack of evidence” – and international and domestic human rights groups.
But it didn’t surprise Askarov’s lawyer, Nurbek Toktakunov, an eminent Kyrgyz activist who called the verdict “illegal” and, like the U.S. Embassy, cited the lack of evidence of Askarov's guilt.
“It was a typical illegal sentence by our courts. The decision was made because of political and public pressure on judges,” he said. “Although they should be unmoved by public and political opinions, that’s not how it is in Kyrgyzstan.”
Another controversial ruling was handed down in March, when Azamat Isaev, the son of Bishkek Mayor Isa Omurkulov, received probation for causing an August 2011 car accident that killed three people. Omurkulov is a member of the Social Democratic Party, one of four parties in the governing coalition.
The decision prompted a public outcry and has further eroded public confidence in the judiciary.
For years, international researchers have warned about the corruption and lack of professionalism that plague the country’s justice system.
In a 2008 report, the International Crisis Group noted that many Kyrgyz lawyers “complain that their main role is not to represent clients vigorously, but to facilitate this endemic corruption.”
More recently, in its Freedom in the World survey for 2012, the Freedom House think tank concluded that the Kyrgyz judicial system “is not independent and remains dominated by the executive branch.”
FREEING JUDGES TO JUDGE
Lawyer Toktakunov said a raft of factors keeps judges from fulfilling their proper role.
“Their selfish interests, fear of political pressure, misunderstanding of their role and mission. ... All these prevent the administering of justice,” he said.
Feruza Jamasheva, the acting chairwoman of the Supreme Court, conceded Toktakunov’s points and said the country’s judges are particularly vulnerable to political pressure. Though the law protects judges from dismissal except for reasons of misconduct, that has not stopped previous administrations from launching criminal cases against and removing judges who handed down rulings they did not like. Jamasheva said those attacks must stop.
“If judges were sure of their position and that they could not be dismissed because of their rulings, they would be more confident and be able to really dispense justice. There should be only one reason for dismissing them – making illegal decisions,” Jamasheva said.
Aside from political pressure, Jamasheva said the judiciary’s development is held back by low salaries, poor benefits, unqualified judges, and staffing shortages.
“We have to create decent conditions for judges. He or she shouldn't have to worry about how to support their family, buy food, pay for their children’s education. It should not be their headache,” Jamasheva said.
She said those issues should become part of a judicial reform effort that has been under way for a year.
A FALSE START
The first attempt to clean up Kyrgyzstan’s bench started in June 2011 under former President Roza Otunbaeva, but by August it seemed to have failed.
In June 2011, the Kyrgyz parliament adopted a package of laws and created a council to select independent, accountable judges for Kyrgyzstan’s more than 70 courts. The council included eight judges and 16 civil activists and lawyers nominated by parliamentary parties.
It immediately began to assess 126 candidates for the 35 seats on the Supreme Court and 11 on the Constitutional Chamber, the successor to the Constitutional Court, which had been dissolved in May 2010 by a government decree.
From the start, the process was beset by conflicts among the political factions on the council and muddled by gaps in the laws that had created it.
Only two candidates were ultimately confirmed. Most were rejected by either the selection panel or Otunbaeva, who reviewed the panel’s choices. Parliament refused to consider the remainder.
Each branch of government accused the other of pushing its own favorites for the country’s highest courts.
Still, Shamaral Maichiev, who chairs the selection panel, is optimistic that the process, more finely tuned, can work. He said the legislation establishing the body has been refined and called the conflicts “growing pains.”
“But now its members have overcome the contradictions and interests of their factions. They now realize their mission and work closely together,” Maichiev said.
A second attempt at judicial reform that began last month seems to bear him out.
Candidates submitted their financial information for review, wrote an essay, and took an oral examination on the law before being interviewed by the panel.
The process ended within one month without scandal or conflict, and 32 candidates have been selected so far for the Supreme Court. They now will be considered by President Almazbek Atambaev, who replaced Otunbaeva in December, and parliament.
The reform has its critics, both within and outside the process. Sarylbek Borbashev, a member of the selection panel, threw up a red flag in a July interview with the K-News agency. Although the council did consider complaints it received about the candidates, he said it should have conducted more thorough investigations into allegations of corruption against them.
“In my view, you can’t call it a real selection process, when we just read the biography of a candidate and his credentials. We shouldn't make conclusions after 30 minutes of seeing each applicant, since each of them can easily demonstrate professional skills, but not moral qualities,” Borbashev told the news agency. “The selection process looks more like an assessment of their competence.”
But Maichiev said the panel had fulfilled its remit to select professional judges and that the judges’ conduct was a matter for law enforcement and judicial oversight bodies.
“They should keep an eye on judges and prevent violations of the law. Moreover, I think that it’s necessary not only to step up monitoring but to strengthen punishment for judges,” he said.
Supreme Court chairwoman Jamasheva agreed and said judicial reform must be conducted alongside reforms in law enforcement.
Rita Karasartova, coordinator of the independent Civic Council for Judicial Monitoring, has also been a vocal critic of the process. She calls for putting members of civil society groups on the panel that oversees judges’ conduct and metes out punishment for wrongdoing.
More broadly, Karasartova would like to replace all of Kyrgyzstan’s nearly 450 judges with fresh, younger faces.
Toktakunov, the legal expert, said replacing at least half of the current bench with young lawyers who have not been corrupted could help clean up the judiciary. But he said very few people want to be judges.
“As far as I know, many qualified and young lawyers don't want to work as judges. They just don't need it. But if the current judges are simply given back their old positions, nothing good will come of it,” Toktakunov said.
But Jamasheva said a “total and radical renewal of the judicial establishment” could be only a last resort.
“A judge’s work is very specialized, and you can’t learn it from books or movies on TV,” she said. “It’s actually hard to be a judge and decide people's fates. We realize that judicial reform is necessary, but not like that.”