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Common Agenda of the Rule of Law Platform

With its shared legal traditions and decades of experience, the EU is in a unique position to support the Central Asian States with their reforms. All Central Asian countries have declared their willingness to cooperate and exchange experience with the EU so that they can further develop their legal systems, benefiting, for example, from the experience of those EU Member States in Central Europe which underwent a similar process in the 1990’s.

Core challenges such as developing a judicial system, law enforcement, modernisation of commercial legislation and the accountability of national administrations are shared among the five Central Asian states.

In identifying the main legal topics for implementation, i.e. specific thematic areas for reform for the EU CA Common Agenda, the Platform remained within the limits of the topics selected and agreed by representatives of the five Central Asian countries at the Second Ministerial Conference on 14-15 June, 2010 in Dushanbe and confirmed at the Third Ministerial Conference.

The Common Agenda for the Platform focuses on three core legal issues: Administrative Law, Criminal Law and Criminal Procedure, and Judicial Reform. To these three main topics, Constitutional Justice and Commercial Law could be added.

Administrative Law

Within the region, different states follow different models of administrative procedure. Despite these differences, it is imperative that laws enable effective administration and promote respect for the rights of individuals. To date Kazakhstan, Tajikistan, Turkmenistan and Uzbekistan have merely modernised the Soviet Code of Administrative Offences, but are hesitant to bridge the legislative gap in the foreseeable future, while Kyrgyzstan is well advanced with its new administrative procedural law. Administrative Justice is an integral part of developing the rule of law. It shifts the emphasis from institutions to individuals and helps make the judicial reforms more practical. Thus, it also means strengthening public confidence towards the public exercise of power and the development of social capital. The joint efforts of GIZ and the Rule of Law Platform have increased the awareness of academics, lawyers and civil servants of Central Asia about the importance of creating an administrative procedural law to resolve public law disputes. This ought to be separated from the civil procedure, and the laws governing the general administrative procedure should also be reformed.

Core common challenges have been identified for the five Central Asian countries that need to be dealt with at regional level in cooperation with the EU, including:

  • Lack of confidence towards the public exercise of power,
  • The need to increase the efficiency of administrative bodies in order to strengthen the authority of the State,
  • The need to guarantee transparency in decision-making by administrative authorities (prevention of corruption, increase of accountability of state institutions and civil servants),
  • The need to increase the predictability and legal transparency of administrative decisions in order to guarantee the security of the citizens and the business community,
  • The need to comply with the principle of the prohibition of arbitrary acts of administrative authorities and the principle of equality before the law.

The main activities that have been carried out are as follows:

  • A background study on Administrative Law completed in October 2012 aimed at analysing the state of play of administrative justice reform and prospects for developments in the five countries in the region.
  • A Regional Seminar on Administrative Justice in Astana, Kazakhstan on 2-3 November 2012; national Training Workshops on Administrative Process or Procedure in Kazakhstan in June 2013; on Administrative Procedure in Kyrgyzstan in July 2013; on Administrative Process in Kyrgyzstan in November 2013; on Administrative Procedure in Tajikistan in August 2013; and on Administrative Law in Uzbekistan in late 2013. These aimed to raise the awareness of key policy-makers and specialists about the importance of administrative law, foster the re-launching of reform work, and teach process law to judges and other specialists so that they understand its guiding principles and are ready to apply the Administrative Process Code when it once it will be enacted.
  • During a study visit to Germany, Latvia and France in July 2013, which included visits to administrative courts and institutions, the Venice Commission of the Council of Europe, the European Court of Human Rights and the Ecole Nationale d’Administration, a group of Central Asia specialists were acquainted with EU practices, laws and case law in the area of administrative law, in countries with strong administrative law traditions. This was followed by a research visit on Administrative Law to German Academic Institutions for promising Central Asian scientists expected to carry the administrative justice reform in the region.

To download the recommendations issued at the Regional Seminar on Administrative Justice, click here.

Criminal Law and Criminal Procedure

Criminal law remains a politically sensitive issue in Central Asia, and many problems are common to all Central Asian countries. All five countries have undertaken a reform of their criminal justice system, and most Criminal Codes and Criminal Procedural Codes have been redrafted. However, due to difficulties in the implementation of these laws and codes, a new “wave” of reforms is currently underway whereby substantial parts of the new codes are being drafted anew, ancillary legislation or regulation is being drafted to clarify these codes, and guidelines explaining complex procedural aspects to the professionals involved in various phases of the criminal pre-trial and trial procedures are needed.

Criminal proceedings in Central Asian countries remain inefficient, excessively bureaucratic and very costly, which, together with the congestion in pre-trial facilities, have led the countries to increasingly consider simplification to ensure the right to a swift trial and ease the financial burden on the criminal justice systems. Abuses during the investigative process, including the use of ill-treatment, and violations of the principle of equality in criminal trials take place regularly. Judicial control in pre-trial stages should be strengthened by establishing effective remedies against acts infringing upon the rights and liberties of the defendant. Further reforms have to be carried out to ensure strict adherence to the principles of adversary procedure and equality of arms throughout all stages of criminal proceedings by judges, prosecutors, law-enforcement officials, and defence lawyers.  One of the main obstacles to improvement is the role of the prosecutor. The “prokuratura” has an exceptionally powerful role before, during and after court cases. Although current judicial reform efforts aim to curtail the power of that institution (for instance, through the introduction of a judicial arrest warrant or jury trials, which are being reformed), prosecutors will retain many privileges which they do not have in the EU. The public prosecutor’s office should drop its oversight powers vis-à-vis courts and the legality of the judicial decisions. This would mean reforming the Criminal Procedural Code. All infringements upon constitutionally protected rights and freedoms must be subject to a priori and a posteriori judicial control and review, and due process guarantees are strictly adhered to during detective-investigative measures and pre-trial investigation. Granting judicial functions to the investigator contravenes the principle of separation of powers. Reforms of the current status and role of the police or investigator should ensue in order to guarantee separation of powers and equality of arms.

Defence lawyers must receive case materials and have access to their clients from the moment of actual apprehension/detention, which is not the case. Their involvement in criminal investigations has to be strengthened from the opening of an investigation through all proceedings up to sentencing. Effective professional bodies (lawyers’ and bar associations, etc.) remain to be created.

Reforms are also required to reduce the lengthy pre-trial detention period, which is currently determined by the prosecutor’s office, and any prolongation of the pre-trial detention should be made subject to judicial control. Periodic judicial review of the legality and reasonableness of the detention should be foreseen by law.

Punishment remains overly severe. In general, the ongoing and future reforms in the region refer more to the criminal procedures than to the criminal codes. Therefore, both procedural and substantive aspects of law may be gathered under the term “criminal justice”.

Main activities include the following:

  • At a Regional Seminar on the Right to a Fair Trial in Bishkek, Kyrgyz Republic on 4-5 April 2013, Central Asian experts shared best practices on pre-trial proceedings and rights of defence and together provided recommendations for further actions.
  • The theme of this seminar directly related to the recommendations delivered at a Regional Seminar organised by France on Compliance with Defence Rights in Criminal Proceedings in Tashkent, Uzbekistan on 28-30 September 2009.
  • National Workshops on Pre-trial Proceedings and defence rights in Kazakhstan and Tajikistan and Turkmenistan in the autumn of 2013 presented best EU-practices to ensure the rights of defence at pre-trial stage and provide guidelines on key issues such as the Habeas Corpus, issuing arrest warrants, pre-trial detention, etc.
  • A Regional Background Study on Criminal Procedure completes this component, seeking to clarify the state of play in this area in the region and provide analysis/assessment and policy advice.

To download the recommendations endorsed at the Regional Seminar on the Right to a Fair Trial, click here. The recommendations issued at the Regional Seminar on Compliance with Defence Rights in Criminal Proceedings (in French) may be downloaded by clicking here.

Judicial Capacity

Fair and effective courts, operating with a view to ensuring quality, form part of the basis of democracy and rule of law, and play a critical role in fostering development and investment. The judicial systems of Central Asian countries continue to face many challenges to varying levels, depending on the country. These include lack of technical skills and financial resources, improper influence on judges and corruption, inappropriate training and equipment, inefficiencies in court management and allocation of cases, overloaded judges, resulting in a lack of public confidence in the court system. Most of these problems are common for all Central Asian countries.

Legal education and training in the Soviet Union placed special emphasis on the memorisation of legal material. Currently, while significant changes have been made in legal education, most law students continue to graduate without any practical experience and without the basic skills they need to be lawyers. To support legal reforms and modernisation, Central Asian countries currently attach great importance to judicial training institutions such as legal training centres. These institutions are seen as an instrument to ensure quality skills of the legal professionals and also to introduce new techniques and practices in the judicial systems. Legal training institutions of the region have already developed informal networks with other centres such as the Ecole Nationale de la Magistrature in France or the Academy of Justice in Russia, but contacts are maintained on an ad hoc basis. The quality of teachers, university and academic staff has improved in recent years, but further improvements are still needed to facilitate the introduction of new teaching methods and to make teaching more practice-oriented. In this respect, more can be done in Central Asia to find new approaches including cooperation between the judiciary and universities. It is important to note that modifying the basic and further training systems for the legal professions are just as important as passing on expertise. Up-to-date teaching materials (legal literature, textbooks, case collections and commentaries) and court rulings are not always accessible in Central Asia. This is even more problematic for materials translated into the Central Asian languages or even into Russian.

Reforms are also required to improve the independence of judges. Issues such as minimum age requirements, security of the judicial tenure until the age of retirement, competition-based appointment procedure for judges and presidents of all courts, and adequate remuneration and material conditions for judges need to be addressed.

The role of lawyers and their independence is not fully recognised in Central Asia. For instance, precise statistics about the number of lawyers are missing in the region, they do not necessarily have to join a lawyers association and, in many cases, legislation does not clearly define what requirements are needed for lawyers to work in court cases. This lack of quality assurance results in rather poorly trained advocates who, during court cases, usually succumb to better trained judges and prosecutors.

Other legal professionals key to the good operation of the justice system include the judicial enforcement agents. There is limited information available on the rate of enforcement of court decisions in the Central Asian countries but the enforcement rates can be abyssal. The reform of the judicial enforcement services has not started in most countries but this is a serious drawback to the smooth implementation of justice.

Central Asian legal professionals have repeatedly supported further cooperation with the EU and among themselves, also considering that they face similar situations regarding the development of their judicial system. Activities planned or carried out include:

  • A Regional Seminar on Legal Training in the 21st Century organised by Germany and supported by the Commission in Bishkek, Kyrgyz Republic on 26-28 October 2009. This produced specific recommendations which are the basis for the Platform work on legal training and called for the establishment of a network of legal professionals. It is important to note that any regional approach to legal training should be complemented by a bilateral approach, able to take into consideration the specificities of each country.
  • A Regional Seminar on Judicial Capacity was held in Brussels on 2-3 November 2012.
  • A Training Seminar on Judicial Independence in Uzbekistan in October 2014 will focus on the appointment and evaluation of judges, the specialisation of the judiciary, and immunity of lawyers from prosecution in discharging their professional duties.
  • A Round Table on Best Practices in Judicial Training in Turkmenistan in 2014 will present to high-level Turkmen specialists best international (European in particular) practices in this field.
  • A Workshop on Improving Access to Justice in Uzbekistan in March 2014 will look into the important question of access to justice and to attorney’s services and EU examples of legal assistance to low-income citizens.
  • A Regional Training Seminar on interaction between the legal and judicial professions in Kazakhstan in the spring of 2014 will focus on the legal framework/institutional issues.

The national workshops in Kyrgyzstan and Uzbekistan will focus on selected themes of the judicial reform. In the case of Kyrgyzstan, the seminar could focus on introducing IT in the work of the courts and case management, and the administrative reform of courts. In the case of Uzbekistan the role of the judicial reform in promoting human rights will be introduced.

A Legal Opinion on the Liability of Judges for Kyrgyzstan assesses the draft legislation on the liability/new disciplinary regime of judges, providing a legal opinion with recommendations. A Comparative Study of the Laws and Practice on the Independence of the Judicial System in Central Asia seeks to provide a solid background analysis for the policy-makers and the Supreme Courts of Central Asian countries to contribute to increasing the independence and improving the efficiency of the judicial systems. A Study Drafting Methodological Recommendations for the Training of Uzbek Judges in the area of Human Rights aims to make methodological recommendations for the training of judges in the area of human rights based on best international practices.

Last but not least, the awareness of citizens of their rights and the functioning of the justice system needs to be substantially enhanced. In this field, national authorities in Central Asia have been calling for more structured and updated information on the judicial systems of the EU. Existing sources are usually not in Russian and even less in local languages and usually fragmented and misleading, not being targeted to the specific needs of international judicial cooperation. An improved level of mutual knowledge is likely to bring further momentum and increased attention for the needs of modernising criminal legislation. Improved access to justice and to law should be a key element of the judicial reform. This includes the providing of free legal aid to low-income citizens and making legislation and leading case law publically available to the citizens on a government Internet portal or raising citizens’ awareness about their rights for example by disseminating leaflets.

The recommendations issued at the Regional Seminar on Legal Training in the 21st Century (in English and in German). To download the recommendations issued at the Regional Seminar on Judicial Capacity, click here

Constitutional Law

Further development of constitutional mechanisms aimed at reinforcing the principles of rule of law, separation of powers and legal certainty through reform of the existing legislation and its effective implementation, electoral law, laws conferring on the courts the power to decide on the application of restrictive measures of constitutional freedoms, etc. could be addressed by the Rule of Law Platform. However, no requests for support in these areas have been presented by the partner countries to date. The Partner countries have the possibility to request expertise directly from the Venice Commission of the Council of Europe on these matters without Platform involvement. If submitted to the Rule of Law Platform, these issues could be included in the broader administrative law topic. Other issues pertaining to the enhancement of the efficiency and independence of Constitutional Councils and Courts in particular, requirements for judges and the judiciary in general, may be addressed under constitutional laws but would be included in topics of judicial reform.

A Regional Seminar on Constitutional Law in Kazakhstan in the spring of 2014 aims to establish a dialogue at regional level on issues of Constitutional Law.

Commercial Law

The Turkmen side has expressed an interest in benefiting from European expertise on additional specific legal issues such as Commercial Law, which could include energy law, communication law, protection of the rights of investors in the context of privatisation of state enterprises, etc.).