Kyrgyzstan

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Legal Resources for Kyrgyzstan

Constitution of the Kyrgyz Republic ^[1]

E-Learning Resources

eLearning Courses for Criminal Defense lawyers

Background

The Kyrgyz Republic, commonly known as Kyrgyzstan, declared its independence from the Soviet Union on 31 August 1991. It is located in Central Asia and borders with Kazakhstan, China, Tajikistan and Uzbekistan. Its capital is Bishkek.

The Kyrgyz – Muslim Turkic people – constitute three-quarters of the population. The Uzbeks are the second largest ethnic group in the Kyrgyz Republic, about one-seventh of the population, and the remaining one-eighth of the population is made up of other ethnic groups like Russians, Ukrainians, Germans, Tatars, Kazakhs, Dungans, Uighurs, and Tajiks.i

Kyrgyz and Russian are the official languages of the Kyrgyz Republic.

The Legal system

The legal system of Kyrgyzstan is civil, inspired by the Roman-Germanic Law System. Its main laws are written in the constitution, which was last updated on 11 April 2021. The state power is split into legislative, executive, and judicial branches. The judiciary consists of the Constitutional Court of the Kyrgyz Republic, the Supreme Court of the Kyrgyz Republic, and local courts. Criminal cases are usually heard at local courts and may be appealed at the Supreme Court.

Legal Aid

The Constitution of the Kyrgyz Republic states that everyone has the right to qualified legal aid. If a person does not have the financial means, legal assistance and defense are ensured at the expense of the State (Article 88.2). The Kyrgyz Republic has at least 11 Free legal aid centers and 4 empowerment centers. If provided by the state, defense lawyers may be paid out of public funds.

There are also several NGOs providing pro bono legal aid, such as:

Ferghana Valley Lawyers without Borders

Public Foundation “Legal Clinic Adilet”

Source of Defendants Rights

National Sources of Defendant’s rights:
The Constitution of the Kyrgyz Republic (hereafter: Constitution) guarantees some fundamental human rights for its citizens, foreigners, and individuals without citizenship alike (Article 16 and Article 19). The latest version of the Constitution came into effect on 5 May 2021.
The Criminal Code of the Kyrgyz Republic (hereafter: Criminal Code) protects the rights and personal freedoms, societies, the states, and safety of mankind from criminal encroachments prevents crimes, and recovers justice broken by crime. It defines and outlines the principles of legal responsibilities, grounds for criminal liability, the range of socially dangerous acts recognized as crimes, types of punishments, and other measures of a criminal legal nature applied to persons who have committed crimes. The current version of the Criminal Code took effect on 28 October 2021,ii with certain changes and additions active from 10 October 2023.
The Criminal Procedure Code of Kyrgyz Republic (hereafter: Criminal Procedure Code) outlines the processes of the criminal justice system: from the initiation of a criminal case to pre-trial to court hearing. The current version of the Criminal Code took effect on 28 October 2021, with certain changes and additions active from 22 December 2023.
The Code of the Kyrgyz Republic on Offenses (hereafter: Code on Offenses) establishes the procedure and the conditions of the enactment and the serving of the punishment. The current version of the Code on Offenses took effect on 28 October 2021, with certain changes and additions active from 18 January 2024.

International Sources of defendant’s rights:
The Kyrgyz Republic is a party to the International Covenant on Civil and Political Rights.

Rights of the Accused

Right Against Unlawful Arrests, Searches and Seizures: According to Article 16 of the Constitution, everyone has the right to liberty and security of person. Detention, arrest, and committal may be appealed in court. Anyone who is arrested or detained shall be informed, at the time of arrest, of the reasons for his arrest or detention, told his rights, and allowed to defend himself in person or through the legal assistance of an attorney. According to Article 16 and Article 20 of the Constitution, no one may be subjected to arrest or detention except based on law. Any action aimed at imposing responsibility for a crime on a person before a court has made a decision is not allowed and is grounds for compensation to the victim through the court for the material and moral harm suffered

Right Not to be Tortured or Ill-Treated: According to Article 22 of the Constitution, no one may be tortured, subjected to mistreatment or inhuman, degrading punishments.

Right to Medical Care: According to Article 47 of the Constitution, citizens of the Kyrgyz Republic have the right to the protection of health and to free use of the network of state and municipal public health institutions.

Right to Presumption of Innocence: According to Article 26.2 of the Constitution, everyone charged with a criminal offence is not obligated to prove his innocence. Irremovable doubts concerning his guilt must be interpreted to the benefit of the accused.

Right Against Self-Incrimination: According to Article 26.3 of the Constitution, no one can be convicted only based on his own confession to committing a crime. According to Article 26.5 of the Constitution, no one is obligated to testify against himself, his/her spouse, and close relatives determined by law. The law may provide for other cases of excusing from the obligation to testify.

Right to present a defense: According to Article 24.5 of the Constitution, everyone detained, arrested, or charged with a criminal offense has the right to the presence of an attorney (defender) from the moment of the respective detention, arrest, or bringing a charge.

Right to Equal Protection of the Laws: According to Article 16 of the Constitution, all persons in the Kyrgyz Republic are equal before the law and the court. No one must be subject to any discrimination or violation of his rights and freedoms, on the grounds of ethnic origin, sex, race, nationality, language, religious belief, or other conditions or circumstances of a personal or social nature.

Right to Bail: Article 109 of the Criminal Procedure Code outlines the right to bail.

Right Against Ex Post Facto Prosecution: According to Article 26.7 and Article 28 of the Constitution, the law establishing or aggravating the liability of a person shall not have a retroactive force. No one shall be held guilty of any criminal offense on account of any act or omission that did not constitute a criminal offense, under national or international law, at the time when it was committed. If, subsequent to the commission of the offense, a provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

Right Against Double Jeopardy: According to Article 27 of the Constitution, no one shall be liable to be tried or punished again for an offense for which he has already been finally convicted or acquitted in accordance with the law and penal procedure.

Right to a Fair Trial:

Generally: As outlined in Article 4 of the Criminal Procedure Code, the purpose of the criminal procedure is to “provide quick and complete clearance of crime, convicting and charging with criminal liability those who committed the crime, fair court examination and right application of the criminal statute.”
Right to a Trial by Jury: There is no right to a trial by jury in Kyrgyzstan.
Right to a Speedy Trial: According to Article 237 of the Criminal Procedure Code, the prosecutor must decide on the charge within five days of the investigator’s ruling at the end of the investigation.
Right to an Impartial Judge: Article 8 of the Criminal Procedure Code states that the court must ensure impartiality and objectiveness for all parties involved in the proceeding.

Right to Language Interpretation: Article 23 of the Criminal Procedure Code states that a person participating in the proceedings can make statements, testify, put forward motions, study the dossier of the case, speak in court in their native languages and use the services of an interpreter. A copy of the document of accusation and of the verdict (ruling, resolution) shall be handed to the accused or the convicted person with translation into his native language or any other language he speaks.

Right to Habeas Corpus: Articles 5 and 126 of the Criminal Procedure Code declare that decisions by investigators, prosecutors and courts may be appealed.

Capital Punishment: Capital punishment has been abolished in Kyrgyzstan since 2007. Nonetheless, it may be re-established in the future according to Article 18.4: “Capital punishment may be established by law and imposed only by court order as exceptional punishment for particularly grievous crimes. Any person sentenced to capital punishment shall have the right to seek a pardon.”

Right to Appeal: According to Article 27 of the Constitution, everyone has the right for their case to be re-examined by the Supreme Court. According to Article 96 of the Constitution, the decision of the Supreme Court cannot be appealed.

Rights of Counsel

Right of Access to the Client and Right to Confidential Communication with the Client: Article 48 of the Criminal Procedure Code outlines that a legal representative may “meet with the suspect, accused, the defendant in private, confidentially and without any limitations of time and number of such meetings”.

Right to Information: Article 48 of the Criminal Procedure Code gives a legal representative right to information from the moment a defendant is suspected of a crime.

Means of Protecting and Enforcing Rights

Exclusionary Rule:

Article 6 of the Criminal Procedure Code states that “in administration of justice one shall not use evidence that has been acquired with violation of the procedural criminal law.” This is similar to the exclusionary rule in constitutional law (e.g. in the US) which prevents evidence collected or analyzed in violation of the defendant's constitutional rights from being used in a court of law.
Nullity of Procedure:

Article 325 of the Criminal Procedure Code outlines the conditions for the nullification of the verdict. These include: evidence left undiscovered as a result of the incomplete and biased court proceedings on a case, disclosure of which could have been of substantial significance to the verdict-reaching process.

Pre-Trial Procedure

Section 7 of the Criminal Procedure Code outlines the pre-trial processes.

Complaint/information: According to Articles 145 and 146 of the Code of Criminal Procedure, any information relating to a potential crime must be registered in the Unified Register of Crimes. The criminal case cannot proceed without the case being registered and updated. The person who made the complaint or reported the potential crime is informed once the information is registered on the Unified Register of Crimes. Anonymous reports cannot be accepted and registered in the Unified Register of Crimes.

Arrest, Search and Seizure Laws:

Arrests: According to Chapter 12 of the Code of Criminal Procedure, the investigator may arrest an individual on suspicion of committing a crime. This may occur if: an individual is caught committing a crime or immediately after committing the crime; a witness, including the victim, identifies an individual as the perpetrator of the crime; if evidence of crime is found on an individual or an individual’s clothing, on him or at his home. On arrest, an individual must be told what he is suspected of and his rights, including the right not to give self-incriminating evidence, the right to have a legal representative, and the right to state legal aid. A detention order must be issued, which states: the place and date of its issue; the rank and full name of the person issuing the order; details of the detained person, including their physical state; the grounds and motives for the arrest; the place and time (in hours and minutes) of the arrest; that the detained person was made aware of his rights; the results of the detained person’s personal search and telephone conversations. The detention order must be signed by the investigator, the detained person and his lawyer. A copy of the detention order must be immediately presented to the detained person and within 12 hours to the persecutor. The detained person must be presented to the court within 45 hours of his detention to confirm the legality of his detention. If the detained person is under 18 years old, he must be presented to the court within 21 hours.
Stops and Frisks: Stop and frisks may be performed immediately after a person is detained. The police may stop and frisk any suspicious person based on appearance. According to Article 213 of the Code of Criminal Procedure, a personal search does not require a special warrant from the investigative judge if there is a suspicion that a person present at the scene of the search is hiding something or a person is being detained.
Searches: According to Chapter 28 of the Code of Criminal Procedure, searches may be initiated at any point throughout the pre-trial. With the agreement of the prosecutor, the investigator must apply for a petition to the investigative judge. The judge makes a decision based on the evidence that: a crime was committed; the sought-after item(s) or document(s) are valuable to the case; the information present in the sought-after item(s) or document(s) may count as evidence in the case; the sought-after item(s) or document(s) may be located at the identified place. In exceptional cases, the judge’s permission may be sought after the search is carried out, within 24 hours of its occurrence. The judge must consequently decide on the legality of such searches and if deemed illegal, any confiscated items may not be used as evident in the proceeding. Before the search, the investigator must inform those involved about the order for the search and offer for them to surrender the item(s) or document(s) voluntarily.

Interrogation: According to Article 103 of the Code of Criminal Procedure, a detained person may be interrogated as a crime suspect. A lawyer must be present during the interrogation. Articles 196–200 outline the rules for the interrogation. The detained person’s rights and the crime of which he is suspected must be explained to him.

Court Procedures

Pre-Trial: According to Article 144 of the Code of Criminal Procedure, the pre-trial begins from the moment that a case is created and information about the case is entered into the Unified Register of Crimes until the case is directed to the court or the case is closed. See Chapters 40, 41, and 42 of the Code of Criminal Procedure for the preparation for a court hearing.

Trial: See Chapter 43 of the Code of Criminal Procedure for trial procedures.

Sentencing: See Chapter 44 of the Code of Criminal Procedure for sentencing procedures.

Appeals: See Section 10 of the Code of Criminal Procedure for appeals.

Rights in Prison

Right to Humane Conditions of Confinement: Article 9 of the Criminal Code states that punishment and other measures of criminal law action will not inflict physical suffering or degrade human dignity. It also provides protection of the personality, life and health, honour and advantage, immunity and safety as the highest social values.

Immigrants' Rights in Detention: Article 9 of the Criminal Code states that a foreign citizen, who committed a crime in the territory of the Kyrgyz Republic and is condemned for it, can be transferred to serve a sentence to the state which citizens they are if the international treaty provides such transfer, and in case of lack of the international treaty - on the terms of the principle of reciprocity.