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HistoryHistory of the Supreme Court of the Kyrgyz Republic
History of the Kyrgyz justice is rooted in deep past. It is suffice to recall that until the 19 th century the justice was administered by “biys” and “kaziys”, based on the established along centuries customary law (adat) and Islamic law (Sharia). Additionally, the justice was also administered by “manaps”, that were guided exclusively by their personal opinion in judicial proceedings.
Only after the occurrence of Kyrgyzstan in the Tsarist Russia since 1867, when the "Provisional Regulation on the management of Semirechenskaya and Syr-Darya region” (and later in 1886 -"Regulation of management of the Turkestan region ") was adopted, several kinds of special and general tsarist courts were formed, which also involved the territory of Kyrgyzstan. These courts included military-commission trials, judicial and administrative authorities, district courts, judicial departments, provincial government, county and magistrates' courts. In the Kyrgyz territory, the justice was administered by the district courts, which were situated in Vernyi and Skobelev.
In the "Provisional Regulation on management of Semirechenskaya and Syr-Darya region", the system of courts in Turkestan was not clearly established, more or less strict system of judiciary has been established by the "Regulation of management of the Turkestan region ", which was valid until the 1917 revolution with its amendments and additions. It was regulating the structure and activities of the "people's court" (the court of “biys” court and “kaziys”) in detail.
According to the third chapter of second section of the above-stated Regulation, the judges were appointed by the governor for the term of three years "at the option of the population." The elections were conducted by the volost Congress elected on the village meetings, one from each of fifty householders. For each position of a judge two candidates were selected. Only governor could confirm the appointment of a judge and a candidate for judge. He could also call new elections. In case of illness or death of a judge his duties with the permission of the governor were performed by the candidate for judge. The number of judges and the territorial limits of their competence were determined by the regional boards before the elections. One judge was elected in the sedentary volosts, while in nomadic – at least four, but not more than the number of “aul” societies in the village were elected.
"People court", according to the Regulation included:
a) single judge,
b) the congress of judges
c) the extraordinary congress of judges.
“Biys” and “Kaziys” were individually considering criminal and civil cases, excluding criminal cases involving the following crimes: public, highly dangerous, the officers’ and some other crimes, and also "committed with respect to Russian as well as within the Russian settlements”. The following cases were excluded from civil affairs: on civil disputes, claims "between natives and persons not belonging to the indigenous population, as well as cases between natives of different nationalities having individual people's courts, as well as claims based on acts committed with the participation of the Russian authorities". The above listed criminal and civil cases were under the Russian courts competence.
“Biys” and “Kaziys” were supplied with special marks to be worn while on duty, official stamps and books for the writing of decisions and acts.
Volost Congress of judges was the second instance for cases of complaints of unfinished decisions for single judges. Litigants had the right to seek for consideration of their cases directly to the Congress by mutual consent. In the first instance the Congress also considered criminal and civil cases at the request of county supervisor. Decisions of Congresses were considered as final, except for the cases when they were imposed with the abuse of power or for cases not triable by the Congress.
Extraordinary Congresses of the judges “were appointed by the Governor to deal with cases involving people from different counties and volosts, as well as to examine the people's judges and their congresses on expulsion of the accused. Extraordinary congresses were held: in the settled natives – from the judges of the judicial districts, which the plaintiff and the defendant or the defendant belonged to; and in the nomads – from the judges of those counties where the litigants or defendants were registered, at least one from a volost.”
The start for the new Soviet court was put by a historical decree “On court” No 1, signed by Lenin and published in “Pravda” newspaper, November 24 (December 7), 1917. And the first act of the Soviet government of Turkestan on the court was ruling of the territorial Council of people’s commissars (CPC) of November 30, 1917 on the organization of the Provisional Revolutionary Court. In this court, consisting of five persons, included representatives of the CPC, the executive committee of the Tashkent Council of Workers' and Soldiers' Deputies, the executive committee of Tashsovet (Tashkent Council) of Peasants' Deputies and the Central Bureau of Trade Unions. Cases in the court were reviewed by jury which consisted of representatives from various organizations in amount of 15 people.
Soon after, on December 12, 1917 People's Commissars of Turkistan ordered the reorganization of the judicial institutions - the document that represents a very significant historical interest, as existing before the general judicial institutions, as the district courts, the Trial Chambers and the Military Courts of all denominations have been replaced by the courts formed on the basis of democratic elections.
In Pishpek county, the beginning of the creation of the Soviet court was put in February 1918, by the first district Congress of Soviets, during which the judicial section was formed. On March 5, 1918 the county's revolutionary tribunal and court of inquiry were established.
The people's courts have begun to be elected in volosts.
In Przhevalsky County the replacing of tzarist trial with the Soviet began after foundation in May 1918, the county Council of people’s commissars. Soon the elections of district magistrates began to be held. Opened June 26, 1918 County Congress of Soviets elected revolutionary tribunal, a commission of inquiry and approved magistrates of all five areas of the county.
In the Osh district of the Soviet the court began to form since the beginning of 1918, but due to the lack of necessary personnel, part of the former magistrates who have expressed their consent to the election and were loyal to the Soviet authorities, who have worked under the supervision of representatives of workers and working peasants in the form of people's assessors remained on their positions.
On October 6, 1921 the “Regulation on the court of Kaziys” was developed and approved by CEC (Central Executive Committee) decree of Turkestan ASSR. This situation has somewhat narrowed the jurisdiction of the kaziy courts and regulated the trial of cases by establishment of appropriate monitoring by the Soviet authorities. According to the Regulation, the position of these courts in their decisions was guided by the Shariah. Their competence included: issues of family law (marriage, divorce, and performing of all acts connected with these institutions), civil claims for an amount not greater than 500 000 rubles (independently from the base of claim, exemptions were only land affairs), insults of the person and offenses against good morals and public order, the transactions on land, transfer of rights of use.
It was acknowledged that kaziys are the judges, elected by the people themselves. The right to elect was granted to all the working population, to which, according to the Constitution of the Turkestan Republic, the political rights were granted. As for the right to be elected, it was granted to every citizen that had political rights and has attained the age of 25.
However, the gradual reduction of the role of kaziy courts (if in 1925 kaziys have committed 1281 action in Osh, then in 1926 the inflow of cases to people’s courts has increased by 230%) which led to the decision to eliminate the kaziy courts at the meeting of the Presidium of the Kyrgyz Autonomous Soviet Socialist Republic CEC on Nov. 1, 1927. In order to create a single People's Court and to strengthen it with worthy representatives of workers, CPC of Turkestan Republic ordered to proceed to the gradual replacement of all courts of kaziys and biys, their Congresses by the united people's court. To improve the skills of newly elected people’s judges from the indigenous population, the courses were organized.
In order to establish the correct and uniform application of the laws of the RSFSR by all courts and the compliance of their activities with the overall policy direction of the worker-peasant government. According to the "Regulation on the highest judicial control" of March 10, 1921 the People's Commissariat of Justice was charged with duties of general oversight of the judiciary, the review of court decisions and sentences of the RSFSR, although entered into force, but requiring revision on certain grounds.
The publication of this Regulation has stepped up the activities of the People's Commissariat of Justice on the decisions and verdicts of courts, provided the opportunity to give the relevant guidance to the courts as an explanation of individual cases, with the exercise of which the uniform standards of process and proper understanding of government policy were created.
Instead of the provincial courts, the regional courts and commissioners of counties with the rights of members of this court were acting in Turkestan. These commissioners were located in Pishpek, Karakol, Naryn and Osh counties.
The main part of the Soviet judicial system became the people's court, the competence of which has significantly expanded. It considered criminal and civil cases involving two people's assessors. The exception was a small category of cases that the national judge could consider individually.
All the above-described facts are relevant to Kyrgyzstan, part of the Soviet Union in those years, a member of the Turkestan Autonomous Soviet Socialist Republic of Russian Federation.
12 June 1924 the Politburo of the Central Committee of RCP (b) adopted the resolution “On the national delimitation of Central Asian Republics ", which provided for the formation of new republics and autonomous regions of Central Asia. Thus was formed the first national autonomy of the Kyrgyz people – the Kara-Kirghiz Autonomous Region, which consisted of 4 districts: Pishpek, Karakol, Jalal-Abad and Osh. In Tashkent, the regional institutions and organizations started to be established. The foundation and recruitment of the regional court, as well as of people’s of district courts were held in difficult conditions caused by the lack of trained workers from the indigenous population. To the position of the first chairman of the Kara-Kyrgyz Regional Court was appointed Leo A. Averburg. In December 1924, with the arrival at the place of its permanent location in Pishpek, the Court has begun to work.
The notarial department of regional court and a district people's court in Pishpkek were formed, plenary meetings, at which besides the issues of the distribution of members of regional court on departments, the appointment of regional court, determination of the number and location of notaries, election of the Disciplinary Board, was a great work on zoning and the establishment of forensic investigative sites in the districts of the region were conducted. 23 People's Courts and 18 investigative sites have started to function, five mobile cameras of people's courts were organized due to the fact that part of the population in the summer travelled to summer pastures.
Regional Court consisted of a chairman, two deputies and four members of the Court (statewide 6 people). People’s judges of first districts, at the same time were authorized by the regional court with the rights of members of the latter.
On May 25, 1925 Kara-Kyrgyz region was renamed as Kyrgyz Autonomous Region due to what the court was called as the court of Kyrgyz Autonomous Region.
And on Feb. 1, 1926 Kyrgyz Autonomous Region was transformed into the Kyrgyz Autonomous Republic (Kyrgyz ASSR) and on March 12, 1927 at the founding congress of Soviets of the Kyrgyz ASSR, the Chief Court of the Kyrgyz ASSR was formed, whose chairman was elected Imanbek Tekeev.
Chief Court acted within the plenum, presidium, criminal and civil divisions, which considered cases as the first and cassation instances, the Disciplinary Board.
The II Congress of Soviets of the Kyrgyz ASSR (25-30 April 1929) that adopted the first constitution – the Constitution of the Autonomous Republic, has become a historic event in the life of Kyrgyz people. The Constitution of the Kyrgyz Autonomous Soviet Socialist Republic was the first General Law in its history, which, in accordance with the will and interests of the people fixed the basis of social and state structure, principles of organization and activity of the republic, the basic rights and duties of citizens and the electoral system.
In 1929, in the election of the Chief Court and the People's judges of the republic "the lack of indigenous people" was marked, and particularly the lack of ethnic kyrgyz women in the judiciary. In this regard, a question about the necessity of legal training, and then of law school has raised before the leaders of the republic.
At the end of the year, the law courses for training and retraining for forensic investigation of the republic with a six-month education term were opened. Their formation was accompanied by considerable difficulties. It was assumed that the cadets will be 15 practitioners and 15 nominees, activists from the workers, peasants and servants. Particular judicial and investigative cameras had to be closed: there was no replacement. In addition, the level of education of students, nominated from the local ethnic people was very low. But all difficulties were overcome, and in June 1930 the first graduates of courses are directed to the practical forensic investigative and prosecutorial work. In 1934, short courses have been converted into a permanent one-year law school under the People's Commissariat of Justice of the Kyrgyz SSR. In 1935, its first graduates were sent to work as the district prosecutors, people’s judges, investigators, members of the board of advocates and court officers.
By September 1930, the territory of the Kyrgyz ASSR was divided into 24 administrative districts. In this regard, 24 district courts and 2 areas of the people's courts were organized in the city of Frunze (former Pishpek). Moreover, in the two areas of Frunze, as well as in the people's courts of Frunze (now territory of Kant and Sokuluk), Karakol, Jalal-Abad, Aravan-Bura and Uzgen districts the positions of alternate judges were provided.
The most prepared certain people's judges (their number was up to eight) were simultaneously the spare members of the Chief Court. They were also, if necessary, included in the composition of appeals panels of the Chief Court. For example, when the assize courts were held in the city of (they were practiced for relief of the Main Court, reducing the time frame for consideration of appeals, protests and for the convenience of the population), only one of the vice-chairman or member of the Chief Court would come from Frunze. He would review the cases on appeals and protests with the involvement of spare members of the Chief Court.
In the same period, the structure of the People’s Commissariat of Justice, the Chief Court and the Public prosecutor’s office has undergone some organizational changes. Whereas previously the People's Commissar of Justice at the same time was the public prosecutor, then in 1931 the first Deputy People's Commissar of Justice at the same time became the public prosecutor. Second Deputy People's Commissar of Justice in those years was the chairman of the Chief Court of the Republic. In July 1936, due to the formation of the People's Commissariat of Justice of the USSR and the liberation of the USSR Supreme Court from the functions of court administration the corresponding changes occurred in the organization and activities of the Chief Court of the Kyrgyz ASSR. The Chief Court was to exercise the functions of the highest judicial body of the republic, being free from administrative functions. Chairman of the Chief Court was not now the Deputy People's Commissar of Justice.
Adoption of the new Soviet Constitution on the 5 December 1936 predetermined the transformation of the Kyrgyz ASSR into the Kyrgyz SSR. In chapter ІX of the new Constitution of the USSR, the basic provisions of the organization and operation of the court and prosecutors have been laid down. The Chief Court of the Kyrgyz ASSR was renamed as the Supreme Court of the Kyrgyz SSR, respectively, its structure and functions having been changed, and the courts for the first time began to make judgements and decisions in the name of the Kyrgyz SSR.
On March 23, 1937 the Constitution of the Kyrgyz SSR was adopted at the V Extraordinary All-Kyrgyz Congress of Soviets, which reflected the fundamental economic and class changes that have occurred in the country, the fundamental principles of organization and operation of the court and prosecutors. In accordance with this Constitution, complete independence of judges and subordination only to the law in resolving each of criminal or civil case was proclaimed as the fundamental principle of justice.
Priorities and goals that have stand before the court of the republic were formulated in the Law “On Judicial Organization of the USSR, Union and Autonomous republics”, adopted at the II session of the Supreme Council of the USSR of Aug. 16, 1938 convocation. Article 2 of the Law provided that the justice of the USSR has the task of protecting against all infringements on:
a) the social and state structure of the USSR, socialist economic system and socialist property established by the Constitution of the USSR and the Constitutions of the Union and Autonomous republics;
b) the political, labour, housing and other property rights of Soviet citizens as guaranteed by the Constitution of the Soviet Union and the Constitutions of the Union and Autonomous republics.
c) the rights and lawful interests of public institutions, enterprises, collective farms, cooperatives and other public organizations.
The purpose of justice is defined in Article 3 of the same Law, under which the Soviet court, applying criminal sanctions, not only punishes the criminals, but also corrects and re-educates them.
Before the adoption of its own Law “On Judicial Organization” (1960), the structure of the Supreme Court of the Kyrgyz SSR, its competence and organizational activities were determined by the Law “On Judicial Organization of the USSR, Union and Autonomous republics” of 1938.
The Supreme Court was entrusted with supervision of judicial activities of all courts of the Kyrgyz SSR. If the composition of the Chief Court and its people's assessors were approved for each year by the Presidium of Kyrgyz Central Executive Committee before, according to the Constitution of the Kyrgyz SSR of 1937 (Article 80) The Supreme Court, including people's assessors, would be elected by the Supreme Soviet of the Kyrgyz SSR for five-year term and would be accountable only to the latter. In the elections of the regional courts the democratisation has also taken place: these courts would no more be elected by executive committees of regional councils, but directly on the sessions of Councils for a 5-year term for the permanent members of the court, as well as for people's assessors.
In those years, the judicial authorities have been administering justice in accordance with the duties assigned to them by the Constitution of the Kyrgyz SSR and the Law “On Judicial Organization”. The Supreme Court and regional courts of the Republic did not possess administrative and management functions. General management of the judiciary was entrusted to the People's Commissariat of Justice of the Republic, which under the Kyrgyz SSR Council of People’s Commissars Regulation of the March 11, 1938, № 108, was entrusted with the organization and management of judicial institutions. Until 1956, the regional departments of the People's Commissariat of Justice were acting under the Councils of Workers Deputies, regulations on which were approved by the resolution of the Council of People’s Commissars of the Kyrgyz SSR.
Until 1941, the Kyrgyz Soviet Socialist Republic was composed of Frunze, Talas, Issyk-Kul, Tien Shan, Osh and Jalal-Abad regions, with the six acting regional courts respectively.
The first legislative acts to determine the forms of organizational restructuring of the judiciary in the conditions of the Great Patriotic War of 1941-1945, were the Decrees of the Presidium of the Supreme Council on 22 June 1941 "On martial law" and "On approval of the military tribunals in areas declared by martial law and in war zones". This Decree has also defined the jurisdiction of cases in areas declared under martial law, by military tribunals with a significant expansion of their competencies.
During the war, the judicial authorities of the Kyrgyz SSR, guided in its activities by the laws of war, performed the same functions that were performed by all other courts of the Soviet Union. The courts of the Republic had made great efforts to combat theft, profiteering, hooliganism, mismanagement, refusal or evasion from paying taxes and from the exercising of duties in wartime, disorganizers of production, etc., instituting strict criminal proceedings against the perpetrators.
Describing the work of the courts of the republic during the war years, the People's Commissar of the Kyrgyz SSR in his reports for 1943 and 1944 indicated that "the courts of the Kyrgyz SSR have mostly coped with the tasks assigned to them, considering the cases more quickly and correctly striking the plunderers of socialist property, speculators and other disorganizers of the rear. The Supreme Court as the supreme tribunal of the republic, in addition to reviewing the first instance critical criminal and civil cases, was exercising the supervision over the activities of people’s and regional courts, over the strict uniform application of laws.
In the early years of the war, 76 districts of people's courts, five regional courts and the Supreme Court of the Republic have been acting in the country. In January 1942, the military tribunal of Frunze garrison was organized. As of July 1, 1944, some 90 district people's courts were acting in the republic. Administrative and managerial functions were performed by the People's Commissariat of Justice and its 6 departments under the regional Councils of workers deputies.
Among the Decrees of the Presidium of the Supreme Soviet of USSR, published after the war, on one of the first places by their significance is the Decree of May 26, 1947 "On abolishment of death penalty". It was established (Article 2): "for crimes punishable by the death penalty according to acting laws, forced labour camps for 25 year-term shall be applied in time of peace”.
In December 1948, the practice of holding the elections of people’s judges on the basis of universal, equal and direct suffrage by secret ballot has begun for the first time in Kyrgyzstan. 94 judges and 6,005 assessors were elected. Among the elected persons there were: persons with higher legal education - 18%, with average legal education - 62%, with course preparation - 19%, with no legal education - 1%.
According to Decree of the Presidium of the Supreme Soviet of the Kirghiz SSR of April 28, 1959 "For the purposes of improvement of the work of regional and national courts and the concentration of control over their activities in one body", the Ministry of Justice of the Kyrgyz SSR was abolished, granting the Supreme Court the right to conduct audits of regional and national courts, to exercise control over their activities, as well as the responsibilities for maintaining judicial statistics of the country. Thus, the organizational and management functions in relation to national and regional courts and notaries have shifted to the Supreme Court.
An important event in the history of justice of Kyrgyzstan was the adoption of the first codes. The followings were developed and adopted: May 25, 1960 – the Law “On the Judicial organisation of the Kyrgyz SSR”; December 29, 1960 – the Criminal and Criminal Procedural Codes of the Kyrgyz SSR; July 30, 1964 – the Civil and Civil Procedural Codes of the Kyrgyz SSR, December 26, 1969 – the Code on marriage and the family of the Kyrgyz SSR.
The Law “On the Judicial organisation of the Kyrgyz SSR” considered aims of justice and objectives of the court in detail, organization and activities of the judiciary, has provided the disciplinary responsibility of judges in the manner prescribed by the “Regulation on Disciplinary Responsibility of Judges”, approved by the Presidium of the Supreme Council of the Kyrgyz SSR. The Supreme Court of the Kyrgyz SSR was entrusted with supervision over judicial activities and management of all judicial authorities of the republic. From now on, it owns the right of legislative initiative.
The composition and structure of the Supreme Court was slightly modified, extending its jurisdiction: as of 1 January 1970, the structure of the Supreme Court of the Republic consists of the chairman, two deputy chairmen, members of the court, as well as of people’s assessors and it acts in the composition of:
a) the judicial panel on civil cases;
b) the judicial panel on criminal cases;
c) the Presidium of the Supreme Court;
d) the Plenum of the Supreme Court.
On April 11, 1990 the Supreme Soviet of the Kyrgyz Soviet Socialist Republic adopted the Law “On the judicial organisation of the Kyrgyz SSR”, which introduced significant changes in the functions of the Ministry of Justice and the Supreme Court of the Republic, entrusting the responsibility for logistic support of the courts to the Ministry of Justice and its local departments. Exercising supervision over the activities of all courts and providing assistance to them rests is entrusted to the Supreme Court.
In the second half of 1990, a watershed moment in the development of Kyrgyz statehood has come. On December 15, on the III session of the Supreme Council of the Kyrgyz Republic of the twelfth convocation the "Declaration of Sovereignty of the Kyrgyz Republic" was adopted.
At the extraordinary VI session of the Supreme Council of the Kyrgyz Republic of the twelfth convocation "the Declaration on State Independence of the Kyrgyz Republic" was adopted. It happened on August 31, 1991 and from that day the beginning of a new phase of history, of the independent, self-development state phase has come.
After two years of work on the project, the Constitution of the Kyrgyz Republic was adopted on May 5, 1993. Its big feature was that henceforth the state power in the country was divided into legislative, executive and judicial branches.
In 1990, the constitutional institution of presidency was also established in Kyrgyzstan. By the Law "On establishing the post of President of the Kyrgyz SSR and amendments to the Constitution of the Kyrgyz Soviet Socialist Republic", adopted October 24, 1990, based on the public need of strengthening the constitutional order, the post of the President of the Kyrgyz Soviet Socialist Republic – President was approved in order to guarantee the work and necessary interaction between the legislative, executive and judicial branches.
On October 27, 1990, the first President of the Kyrgyz Republic Askar Akayev was elected by the Supreme Council of the Kyrgyz SSR.
A year later, on Oct. 12, 1991, the general election of the President of the Kyrgyz Republic took place, on which 95,3% of all citizens of Kyrgyzstan voted for the sole presidential candidate Askar Akayev.
On July 15, 1994 the 1st founding congress of judges of the Kyrgyz Republic was held. President Askar Akayev made a report at the Congress on the objectives of courts, improving of their activity. Based on the decision of the Congress, the Presidential Decree "On some measures on strengthening the judiciary and enhancing the authority of courts" was issued. At the same Congress the Council of Judges composed of 21 persons was established.
In the autumn of that year, another presidential decree created the Court Administration under the Council of Judges of the Kyrgyz Republic, which was transformed two years later into the Judicial Department of the Kyrgyz Republic accountable to the President and judicial community bodies.
Meanwhile, in March 1998, the President of the Kyrgyz Republic issued the Decree "On some organizational measures to accelerate the judicial reform in the Kyrgyz Republic". In accordance with the Decree, the Commission on Judicial Reform under the President of the Kyrgyz Republic was formed, the Regulations on the Commission and its staff were approved. The Decree has formed a united, centralized financial and economic office of the judicial system in the Judicial Department, which is the executive and administrative body of the judiciary.
The II Congress of Judges of the Kyrgyz Republic, held in December 1996, the III Congress of 1999, the IV congress of 2001 were dedicated to further tasks of reforming of the judicial system.
On March 17, 1999 the Legislative Assembly of Kyrgyz Parliament adopted the Law “On the Supreme Court of the Kyrgyz Republic and local courts of general jurisdiction", which became another step in the process of improving the judicial system of the republic.
However, the most revolutionary step can be considered the following Law “On the Supreme Court of the Kyrgyz Republic and local courts”, which came into force on June 13, 2003 (as amended on July 10, 2004). In accordance with this Law, the arbitration courts were logged in the local courts of general jurisdiction, with some other changes that were made.
In addition, since the new version of the Constitution of the Kyrgyz Republic (2003) provides for the possibility of establishing specialized courts, currently the formation of administrative courts is under preparation. The main purpose of this type of court would be providing of more effective protection of the rights and lawful interests of citizens, violated by state authorities, local self-government bodies, fully taking into account the peculiarities of the administrative process based on a certain speed and simplicity of the trial, a substantial reduction of costs, as well as subject specialisation of judges.
As part of further reform the judiciary plans to introduce changes in the system of military courts.
Therefore, within the period of 80 years, the judicial system of Kyrgyzstan, having undergone radical changes, has been established on the principles inherent in the modern, civilised state. Nevertheless, history shows that the change in society will inevitably entail the further improvement of its legal basis so that the laws could always fully serve the interests of society and citizens. Briefly saying, the history continues.
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