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COMMERCIAL LAW JUDICIAL CAPACITY BUILDING PROJECT IN THE KYRGYZ REPUBLIC EVALUATION REPORT April 2009 Commissioned by the IDLO Evaluation Unit By Anna Matveeva (Channel Research) Arianna Fraschetti (IDLO)

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Page 1: COMMERCIAL LAW JUDICIAL CAPACITY BUILDING PROJECT IN … · The evaluation of the „Commercial Law Judicial Capacity Building Project in the Kyrgyz Republic‟ (the “Project”)

COMMERCIAL LAW JUDICIAL CAPACITY BUILDING PROJECT

IN THE KYRGYZ REPUBLIC

EVALUATION REPORT

April 2009

Commissioned by

the IDLO Evaluation Unit

By

Anna Matveeva (Channel Research) Arianna Fraschetti (IDLO)

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TABLE OF CONTENTS ACRONYMS .......................................................................................................................................................... 2

EXECUTIVE SUMMARY .................................................................................................................................... 3

1 INTRODUCTION ........................................................................................................................................ 7

1.1 Evaluation Purpose ......................................................................................................................... 7

1.2 Evaluation Methodology ............................................................................................................... 7

1.3 Acknowledgements ......................................................................................................................... 9

2. BACKGROUND ..................................................................................................................................... 10

2.1 Situation Overview: Judiciary in Kyrgyzstan and Access to Justice .......................... 10

2.2 Recent Institutional Developments and the Current Court System .......................... 11

2.3 Project Background and Outline .............................................................................................. 12

2.4 Project Organization and Management ................................................................................. 13

3. DETAILED FINDINGS IN PROJECT COMPONENTS ................................................................ 14

3.1 Activity I: Institutional Development of the Judicial Training Centre ....................... 14

3.2 Activity II – Training for Judges on Commercial and Civil Commercial Matters ... 17

3.3 Activity III – Apprenticeship Programme for Junior Judges ......................................... 22

3.4 Activity IV – Commercial Law Library ................................................................................... 24

3.5 Activity V – Preparation and Dissemination of a Bench book ...................................... 25

3.6 Access to „Adviser‟ Legal Database ........................................................................................ 26

3.7 Regional Conference .................................................................................................................... 26

4. OVERALL CONCLUSIONS ................................................................................................................ 27

4.1 Relevance ......................................................................................................................................... 27

4.2 Effectiveness ................................................................................................................................... 30

4.3 Impact ............................................................................................................................................... 31

4.4 Sustainability .................................................................................................................................. 34

4.5 Linkages and Partnerships ......................................................................................................... 35

5. EVALUATION CONCLUSIONS AND LESSONS .......................................................................... 40

ANNEX I: Evaluation Terms of Reference ............................................................................................. 41

ANNEX II: List of Interviewees and Focus Group Participants ...................................................... 47

ANNEX III: List of Documents Consulted .............................................................................................. 50

ANNEX IV: Library Users Survey .............................................................................................................. 52

ANNEX V: Survey of Business Community ........................................................................................... 53

ANNEX VI: Court Statistics ......................................................................................................................... 58

ANNEX VII: IDLO / EBRD Training Data ................................................................................................ 60

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ACRONYMS

CIMS Court Information Management System

CIS Commonwealth of Independent States COJ Council of Judges

EBRD European Bank for Reconstruction and Development EC European Community (European Union) GTZ Deutsche Gesellschaft für Technische Zusammenarbeit

ICG International Crisis Group IDLO International Development Law Organization

JTC Judicial Training Center LARC Legal Assistance to Rural Citizens MOJ Ministry of Justice

MOU Memorandum of Understanding NCJA National Council of Judicial Affairs

NGO Non-Governmental Organization OECD Organization for Economic Cooperation and Development SDC Swiss Development and Cooperation Office

SME Small and Medium size Enterprise TI Transparency International

TOR Terms of Reference TOT Training of Trainers

UNDP United Nations Development Programme UNODC United Nations Office on Drugs and Crime USAID United States Agency for International Development

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EXECUTIVE SUMMARY

The evaluation of the „Commercial Law Judicial Capacity Building Project in the Kyrgyz

Republic‟ (the “Project”) was carried out by Dr. Anna Matveeva (team leader), Arianna

Fraschetti (IDLO) and Almaz Musabaev (LARC) between January and April 2009. The

purpose of the evaluation was to document the Project‟s results, suggest

recommendations for Phase IV of the Project and identify lessons to improve future

programming.

The Project has been sponsored by the European Bank of Reconstruction and

Development (EBRD) and has been jointly implemented by EBRD and the International

Development Law Organization (IDLO) from January 2005 until March 2009. (Phase IV

(March – December 2009) is not covered by this evaluation.) The Project‟s objectives

were to enhance the competence of judges in commercial law and to assist in building

the institutional capacity of the Judicial Training Centre (JTC) toward the overall goal of

creating a „business enabling environment in Kyrgyzstan‟. These objectives were met by:

organizing training programmes for up to 270 judges; activities to develop the capacity

of the JTC; two apprenticeship programmes for judges in Kazakhstan and in Russia;

preparation and dissemination of a bench book; and equipping a commercial law library

(the “Library”) at the Supreme Court.

The evaluation team concludes that the Project was well resourced and largely well-

executed. It was timely as it was offered when the judiciary needed assistance during the

difficult period after the March 2005 change of political power. It was also well-grounded

as it built upon a previous USAID-financed project in judicial capacity building, as well as

on an assessment of training needs of the judiciary. Not only did the Project meet a

substantial demand in commercial law education for the judiciary, but it also brought

about clarification of the existing laws and contributed to enhancing the quality of

judgments. The emergence of a more homogeneous application of the law in economic

cases was confirmed by the trained judges interviewed by the team. In their view,

increased uniformity in the judicial decision-making is starting to contribute to more

predictable rulings, which is confirmed by a reduction in recent years in the number of

successful appeals. Lawyers interviewed by the evaluation team noted that the judges‟

understanding of the intricacies of economic cases, as well as the motivation of their

rulings has improved. IDLO/ EBRD trainings also enabled the judges to gain a sense of

belonging to a united professional category and increased their nation-wide interaction.

The judges themselves have noted that they now feel more disciplined in complying with

procedural requirements.

The highlights of the Project include high standards of training, successful apprenticeship

programmes in Kazakhstan and Russia and, to a certain extent, some valuable guidance

to the JTC for its institutional development. The institutional partnership with the

Supreme Court is a major achievement. This is now being replicated through a productive

working collaboration with the Council of Judges. The Project engaged in advocacy for

institutional reform, which has contributed to the change in status of the JTC, the role of

the Council of Judges and the efforts on refining the procedures for appointing new

judges. Joint organization of trainings with the JTC and preparation of a significant pool

of trained experts and facilitators who have mastered IDLO methodology have

contributed to fostering the capacity of the former in offering judicial education. However,

the team found the Library insufficiently resourced and the „Adviser‟ legal database

donated by the Project underused.

The overall context of accountability of the court system in the country is still far from

promising as outstanding problems remain. Despite self-reported improvements by the

judges, perspectives of other stakeholders are different. Business people surveyed by the

evaluation team and the Bishkek Business Club pointed out that advancement in courts

are almost non-existent and that the situation has in some cases even deteriorated.

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Lawyers noted that factors other than legal knowledge continue to adversely affect

judicial performance. Ultimately, without a consistent analysis of judicial rulings, firm

conclusions cannot be drawn.

The Project demonstrated a flexible approach in adapting to emerging challenges. The

execution of activities under direct Project control has been the most successful, such as

trainings and apprenticeships. Within its training component, the Project put more

emphasis on transferring knowledge of Kyrgyz legislation than on developing judicial

skills, while efforts on compliance with standards were seen by the Project Management

as best done by other international providers. The side of the Project concerning capacity

building of the JTC and the Library staff performed less well. Progress in the JTC

component has been hampered by factors beyond the Project‟s control, such as changes

in the status of the JTC, high turnover of JTC directors and staff, and an influx of other

donor funds. The JTC now has an approved curriculum for continuous education of sitting

judges and has developed a strategic plan. However, it still lacks crucial capacity and

ownership, and seems unable to organize trainings of appropriate quality on its own.

Insufficient follow-up on the recommendations of three external Project consultants who

were appointed to assist the JTC shows that the Centre did not fully benefit from this

expertise. Empowerment of the JTC staff, relationship-management and budgetary

transparency could have been given higher priority.

The goal of contributing to „the creation of a business enabling environment‟ was not

comprehensively supported by the Project strategy, as the Project was narrowly designed

and interpreted by the Project Management. The strategy would have been more robust

with a clearer link between the training of judges and impacts upon the business

environment - as a way of promoting judicial accountability and benefits for the wider

society- and with a mechanism to relate inputs to outcomes. In its strategy, the Project

could have also benefited from the inclusion of stakeholders outside the judiciary, such as

lawyers and the business community in order to promote demand for better performance

by the courts‟ users. An inquiry to assess whether training indeed leads to improvements,

e.g. through a regular analysis of judicial decisions or interaction with court users and

watchers, would have made the Project more development-oriented.

The evaluation team also concludes that insufficient sustainability has been built so far.

The team is concerned that an expectation may have been created that judicial trainings

can continue being outsourced to international providers, with national actors taking a

back seat.

The context for interventions has changed since the beginning of the Project: whereas in

2005 IDLO/EBRD was one of a few external actors providing technical assistance to the

judiciary in the Kyrgyz Republic, a later influx of donor funds and projects brought the

challenge of further coordination. New actors have started occupying leadership positions

in the justice sector, and the Project has to adapt to their strategic roles. Creating

linkages with national institutions outside of the judiciary - e.g. parliament, the executive

branch of power and the universities - and connections with a larger policy environment,

has not been regarded as key, which has influenced communication strategies and

affected the Project‟s visibility. The latter was regarded by the Project Management as

not being an objective of this Project.

The evaluation was unable to fully assess the efficiency of the Project, as the Project

financial documents provided to the team did not facilitate this. As a financial audit for

Phases I – III has not yet been carried out, it is recommended that this is done. Specific

financial and managerial issues are reviewed in a separate memorandum submitted to

IDLO Management.

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General Recommendations

1. Develop a Project document and a Log Frame specifying goals, objectives,

outcomes, outputs and monitoring tools for assessing results. Involve different

stakeholders in a thorough needs assessment to form the basis for a new strategy

following Phase IV.

2. Clarify the Project‟s identity, e.g. whether to concentrate on the activities under

direct control and execution, such as provision of trainings - and then examine

how training can be further improved through increased monitoring of outcomes -

or to position the Project on a higher level of intervention to foster a wider judicial

and legal change in the country.

3. Critically review whether the Project has a comparative advantage in JTC capacity

building beyond the joint organization of trainings. If a decision is made to carry

on with this component, a more focused approach to technical assistance has to

be adopted. Otherwise, the component could be scaled down to give space for

new engagements.

4. Conduct a financial audit (preferably external). Disclose full quarterly statements

of expenditures to EBRD.

5. Perform periodic management reviews in the field. Senior management to

dedicate more attention to the Project.

6. Give higher priority to empowerment, relationship-building and communication

with the Project beneficiaries, external agencies and individuals to maximize

impacts and foster a conducive environment for the Project‟s operations.

Phase IV (March – December 2009)

1. JTC capacity development: ensure closer follow-up on the consultants‟

recommendations, involve the JTC director more fully in communication with the

Supreme Court and the Council of Judges, and improve the Project‟s budgetary

transparency.

2. Put greater emphasis on skills in each training offer and on standards in current

trainings.

3. Create a balanced mixture of training on substantive knowledge, technical and

procedural skills and ethical codes in future courses for candidate judges.

Longer-term programming in Kyrgyzstan

1. Introduce demand for better performance and accountability from stakeholders

through increased inputs from lawyers, businesspeople, and academic experts.

2. The apprenticeship programme was a successful tool and its continuation is

recommended. In future apprenticeships:

Ensure that the selection criteria are realistic, transparent and stringently

applied;

Propose to the Supreme Court that candidates apply for the programme on a

competitive basis outlining what they hope to gain from their time abroad; and

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Encourage the Supreme Court to ensure that the participants make a group

presentation on their experience and recommendations on improvements to

legislation or the court system upon their return.

3. Place a greater focus on efficacy and enforcement of rulings, for instance by

providing more trainings for bailiffs in a targeted manner e.g. on execution of

commercial law judgments.

4. Resume the Library component by providing more resources to the Library: equip

it with more sources, especially on legislation in the Kyrgyz Republic, supply

missing equipment, advertise in professional circles and facilitate access.

The key lessons from the Project are:

Capacity building and training delivery are different types of activities and require

different skills and approaches.

Training programmes need to have a solid mechanism of verification of whether

they indeed lead to improvements.

Knowledge, skills and standards are interrelated sides of judicial competence and

cannot be treated in isolation, but have to comprise an integrated package.

Validity of perspectives of stakeholders in the society outside of the judiciary has

to be acknowledged, even when such perspectives are not accepted at face value.

Monitoring of outcomes needs to be tied up with judicial reform objectives and the

evolution of a wider political and institutional context.

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1 INTRODUCTION

1.1 Evaluation Purpose

The evaluation assesses the „Commercial Law Judicial Capacity Building Project in the

Kyrgyz Republic‟ (the “Project”), sponsored and implemented jointly by the European

Bank for Reconstruction and Development (EBRD) and the International Development

Law Organization (IDLO) from January 2005 to February 2009.

The purpose of the evaluation is to: (1) document the results of the Project; (2)

recommend improvements to guide the Project‟s Phase IV (March – December 2009);

and (3) identify lessons to improve future programming.1 The evaluation team (the

“team”) consisted of Dr. Anna Matveeva (team leader), Arianna Fraschetti (IDLO) and

Almaz Musabaev (LARC). The evaluation was planned and managed by the IDLO

Evaluation Unit Manager.

1.2 Evaluation Methodology

The evaluation is based on a document review, a field mission and interviews and

comments from IDLO and EBRD. The team reviewed the project documents provided by

IDLO and EBRD, information from secondary sources, conducted interviews by phone and

face-to-face with IDLO and EBRD Project Management and staff. The information

collected was used to design guiding questions for focus groups and key informant

interviews. The evaluation field mission took place from 12 February to 3 March 2009.

The team visited Bishkek, Osh and the Yssyk-Kul province (Karakol and Tyup). An

inception report was submitted to IDLO on 16 February 2009.

Data Collection Methodology2 - The team, in consultation with the Project staff,

designed focus groups with a representative sample of beneficiary judges by court level

and type of assistance received. 11 focus groups were conducted: 7 in Bishkek, 2 in the

Yssyk-Kul province and 2 in Osh with 36 judges (23 women and 13 men) as follows: 3

23 trained judges - 12 from the Supreme Court and Bishkek city/Chuy province

and 11 from outside the capital (6 from Yssyk-Kul province and 5 from Osh and

Jalalabad provinces);

11 judges trainers - 10 trainers from Kyrgyzstan and one international expert;

11 judges facilitators - 7 from the Supreme Court and Bishkek City/Chuy province,

and 3 from the Osh and Jalalabad provinces; and

9 judges participants in the apprenticeship programmes in Russia and Kazakhstan.

The following courts were visited: the Supreme Court, Bishkek city court, the Chuy

province (Oblast) court, the Tyup district (Rayon) court, the Yssyk-Kul inter-district

(Inter-rayon) economic court, the Osh city court and the Osh Inter-rayon Economic

Court. Staff meetings were conducted with the Judicial Training Centre (JTC) and the

Commercial Law Library (the “Library”) at the Supreme Court. Interviews were held with

1 See Annex I, Terms of Reference of the Evaluation Team. 2 See Annex II, Full list of interviewees and focus groups participants. 3 The choice of these regions was also based on the need to compare the replies provided by the interviewed judges with those contained in the Vitosha Training Outcome Report (see below) in which judges coming from these regions represent a considerable proportion (combined percentage 57%) of the respondents/ targeted population. Two interviewees from the city of Jalalabad were also invited to the focus groups in Osh. Finally, the team assumed that there has been a more intense economic activity and related disputes in the cited regions, since official court statistics from 2007 indicated that the Oblast courts of such regions considered with a verdict the highest number of economic cases (693 considered by Bishkek City Court, 445 by Chuy Oblast Court, 221 by Yssyk-kul Oblast Court and 392 by Osh Oblast Court). See Annex VI, aggregated court statistics on economic cases processed by the Supreme Court and by Regional/Oblast Second Instance Courts with a breakdown by regions.

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representatives of judicial institutions, such as the Council of Judges and the National

Council of Judicial Affairs.

Outside of the judiciary interviews were conducted at the parliament, with journalists

covering judicial affairs, civil society actors, and international development partners

involved in judicial reform or training for the judiciary. The team interviewed users of the

judicial system involved in the commercial law area, namely lawyers from private

commercial law firms, legal aid NGOs, advocacy groups and academia, and

representatives of business associations and business people. The view of lawyers is

presented in the report as a cumulative perspective. The lawyers were interviewed as

individuals or in pairs if they worked in the same firm. No focus groups with lawyers were

possible because of confidentiality considerations.

During the mission two surveys were conducted. A survey of the perceptions of

businesspeople of judicial performance was organized courtesy of the Bishkek Business

Club among their members and business associations affiliated with the Club.4 25

completed questionnaires were received. The second survey was that of the Library

users. 36 completed questionnaires were received.5

The team carried out a field observation of the training on Administrative Processes held

at the JTC on 14 February 2009, which allowed an opportunity to hold informal

conversations with the trainees.

Survey on Project Outcome Questionnaire (the “Vitosha Training Outcome

Report”) - The Vitosha Training Outcome Report6 includes a survey based on the

answers provided by 202 judges trained under the Project to an evaluation questionnaire

(the “Project Outcome Questionnaire”), which was filled in anonymously between 10

November 2008 and 10 December 2008. The surveyed judges represent approximately

75% of the targeted population. The purpose of the survey was to determine the

cumulative benefits of the Project‟s trainings on the basis of a comparison with the

results of the needs assessment survey conducted in March 2005. The purpose of this

latter survey was to collect information on the training needs of the judiciary in

Kyrgyzstan in the field of commercial law with regards to substance, procedure and court

administration to allow the development of a comprehensive training programme as part

of the Project. The evaluation compared, as much as possible, the results of interviews

with trained judges with the findings of both surveys. To this end, the team based some

of its own questions in the focus groups with trained judges on a revised version of the

questions used in the Project Outcome Questionnaire.

Debriefing – The team discussed the preliminary findings with the Project Management

in Bishkek on 1 March 2009. An Aide Memoire was drafted in Russian and shared with the

Supreme Court for the debriefing held at the Supreme Court with participation of the JTC

director. An expanded Aide Memoire covering the findings, tentative conclusions and

recommendations was delivered to IDLO-EBRD on 2 March 2009. A second debriefing

was organized at the EBRD Bishkek Office through a video connection to IDLO (Rome)

and EBRD (London) Headquarters. Comments on the Aide Memoire were received from

IDLO and EBRD, and taken into consideration in the preparation of the draft report. The

draft report was submitted to IDLO on 24 March 2009. Comments of the total of 26

pages were received by the team from IDLO on the draft report.

The final report takes these comments into account, but reserves the right to use the

team‟s own judgment. Due to the nature of the evaluation findings related to the issues

4 See Annex V, Survey of Business Community, pp. 54 – 58.

5 See Annex IV, Library Users Survey 6 See Report on the Training Outcomes of the IDLO/EBRD Project, Vitosha, December 2008, p. 10. The Report was commissioned to Vitosha Research, a Bulgarian firm.

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on efficiency, this section of the report has been submitted in a separate document to the

IDLO Evaluation Unit, as requested by IDLO.

The views expressed in the report are those of the evaluation team and not necessarily of

the IDLO or EBRD.

Constraints

Limited reliability of the Vitosha Training Outcome Report and the Project

Outcome Questionnaires – the survey included in the Vitosha Training Outcome

Report is based on self-reporting of the judges.

The team did not have the financial and human resources to thoroughly assess

the trainings outcomes through analysis of court rulings and other qualitative

indicators.

Memory Bias – The recollection by the interviewees of events, which took place up

to three years ago might have resulted in some memory bias. Thus, the team

tried to triangulate (use of three or more sources) its findings as much as

possible.

Absence of a Project Document and Log Frame - to adequately assess which

outcomes were intended to be achieved, how they relate to the objectives and

which indicators were used to monitor progress.7

Confidentiality – The team respected the request to keep confidential all

statements released by the interviewees by not referring in this report to the

authors of specific comments.

ToR question No. 8.4 - The team was unable to provide a satisfactory answer to

„To what extent has IDLO/EBRD training enabled judges to resist pressure by

making better, well-informed decisions based on a solid understanding of the

law?‟ According to the Action Plan, IDLO/ EBRD Project was not required to design

and implement activities (e.g. in code of conduct or judicial ethics) targeted for

judges to be able to resist pressure.

1.3 Acknowledgements

The team would like to express its gratitude to the Supreme Court of the Kyrgyz

Republic, the IDLO/EBRD Project Management and team, and the Head of the EBRD

Office in Bishkek for their effective support to the evaluation. In particular, the team

wishes to thank Darlene Tymo, Manager of IDLO Evaluation Unit, for her continuous

guidance. The team is especially grateful to all focus groups participants and informants.

Special thanks go also to Uluk Kydyrbaev and Anna Voronina of the Bishkek Business

Club who volunteered to conduct the business people survey on behalf of the team.

7 The team referred as much as possible to the LogFrame prepared for the evaluation and included in the ToR (see Annex I) which was prepared by the IDLO Evaluation Unit in late 2008, in consultation with Project Management.

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2. BACKGROUND

2.1 Situation Overview: Judiciary in Kyrgyzstan and Access to Justice

Following independence in 1991, Kyrgyzstan has undergone political and economic

transition. The transformation of the judicial system inherited from the Soviet era into an

independent branch of power proved problematic and was among the key institutional

changes required to build a viable state. As noted by the International Crisis Group in The

Challenge of Judicial Reform, the main difficulty was with the “Soviet legal culture which

retained a hold over many personnel in the courts” undermining the independence and

transparency of judicial decision-making, and the development of a unified professional

category of judges.8 As a result, interference from other state institutions has been

affecting the performance of the judicial system of the Kyrgyz Republic with different

forms of pressure being exercised directly or indirectly on the assignment of cases,

issuing of court rulings, selection of judges and job tenure.

These and other factors such as the inherent weakness of legal professionals and a lack

of a legal debate in the country, have contributed to the widespread belief among the

general public in Kyrgyzstan that judges, whether qualified or unqualified, are corrupt.

Corruption is endemic and does not concern only the court system but also spheres of

state administration.9 The Transparency International Global Corruption Perceptions

Index keeps ranking Kyrgyzstan among the most corrupted countries in the world:

Kyrgyzstan was ranked 166 out of 180 countries in 2008 indicating that the view on the

degree of Kyrgyz corruption has worsened from 2007 when the country was ranked 150.

Perceived lack of moral integrity of the judges has severely undercut public confidence in

the courts. The growing deficiency of trust in the court system, in addition to procedural

barriers and the shortage of qualified personnel and resources, has been repeatedly

described by the interviewed users of the system as the primary obstacle for achieving a

fair and efficient access to justice. This is leading in turn to the diffusion of alternative

dispute settlement mechanisms (i.e. mediation and negotiation or contractual

arrangements allowing for disputes‟ referrals to international arbitration courts, foreign

jurisdictions or even Sharia and Aksakal elders‟ courts).10 However, the application of

these substitutes is mostly confined to business-to-business type of disputes.

Indeed, the critical areas, in which the judiciary‟s lack of impartiality and other forms of

misconduct are perceived by private business as being most harmful, concern cases that

involve the state or local authorities as a party to a dispute.11 Many lawyers reported that

courts are less keen to accept charges against state bodies or municipal utility

companies, which could result in higher expenses for the state budget. Political patronage

over courts has been predominant with respect to privatization processes allowing illegal

property seizures, corporate raiding and land confiscations to be often perpetrated by

8 See the International Crisis Group Report “Kyrgyzstan: the Challenge of Judicial Reform”, Asia Report No. 150, 2008, p. 1 and 2. 9 See also “Life in Transition”, A Survey of People‟s Experiences and Attitudes, EBRD 2007, p. 54, which states “Corruption is perceived to have worsened considerably since 1989, making it among the worst in the region. Most irregular payments to public officials are made to public health services, education services and the road police”. The same report shows in a table in the same page how courts are among the public institutions which are less trusted by the society in Kyrgyzstan. 10 According to the Chairman of the International Arbitration Court of Bishkek, Mr. S. Maychiyev, 45 out of the 70 cases which have been filed so far with this Court, were submitted in 2008. Most of the cases concern banking law-related issues. He also reported that approximately 6000 contracts that include an arbitration clause are currently in force, involving mainly foreign businesses as one of the parties. The Court relies on the work of 193 independent arbitrators. 11 This data is confirmed by Court statistics available in Annex VI indicating that the majority of economic cases considered by the Supreme Court in the years 2006 and 2007 are administrative in nature insofar as they deal with requests for annulment of illegal administrative acts adopted by State authorities.

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means of unfair court rulings. Land law is the most contested area of law where most

litigation happens.

The judges, in turn, feel that outside of the circle of Bishkek elite law firms, the

professional standards of lawyers are fairly low, and in the countryside most litigants in

land or property disputes do not use the services of a lawyer.

Interviewed judges complained about their workloads. Judges reported that at Oblast

courts level, they process an average of 30 cases per month while at Inter-Rayon

economic courts the average is 25 cases per month for each judge.12

2.2 Recent Institutional Developments and the Current Court System

Significant legislative and institutional steps have been taken in 2008 to improve

accountability of the judiciary. The abolishment of the fixed terms of judges‟

appointments and salary increases are among the positive changes. Judicial institutions

were separated from the government‟s oversight and entrusted with responsibilities

which used to belong to the Ministry of Justice. Hence, the organizational structure in

charge of justice administration is currently comprised of the following institutions:

Council of Judges (CoJ). This is the newly established self-governing body of the

judiciary. Its 15 members are elected by the Congress of Judges. This appointment

mechanism is likely to encourage the feeling of membership among the judges of

belonging to a unified professional category. The CoJ has three main areas of

responsibility: (1) oversight of professional integrity; (2) continuous professional

development and training for judges and (3) formulation of the budget of the court

system. Such functions are exercised by three commissions within the Council. The

commission on judicial complaints of the CoJ plays an active role in scrutinizing the

conduct of judges and in reviewing disciplinary cases. Since its establishment, the

commission has already sent disciplinary warnings to 22 judges and dismissed 6 judges

for misconduct. Furthermore, the CoJ is responsible for issuing internal regulations and

defending the rights of judges. Many interviewed judges commented favorably on the

creation of this self-governing body and its control over their integrity, however a

considerable number also expressed reservations for being subjected to too much

oversight. A change in the judges‟ mentality hopefully might develop as a result of this

commendable initiative.

According to its Chair, the new role of the CoJ entails, with regards to training, the

following functions:

Approval of the topics of trainings offered by donors as part of the training

programme of the JTC;

Oversight of the preparation and content of the training materials;

Advocacy before the parliament of more focus and resources to the enhancement

of judicial professionalism;

Recommendations of promotions based on the quality of the judges‟ work, the

trainings they have received and their success rate in passing the end-of course

tests.13

Supreme Court It is the highest judicial body of the court system. The Supreme Court

performs analysis of workloads, supervises working standards, decides over judges‟

career advancements and proposes new judicial appointments to the President. It retains

12 The norm is about 130 cases per annum, while in reality a judge on average processes about 400. In more developed parts of the country figures tend to be higher, since there is more activity there. The interviewed judges noted that the real figures may be even higher, since the cases for which they sit in a judicial collegiate are not recorded separately (they are recorded only under the name of the judge who presents the case). 13 Team‟s interview with Larissa Gutnichienko, Chair of the CoJ.

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relevant budgeting tasks, such as supervision of mid-term judiciary‟s budget reductions,

including salary review and approval of the JTC budget.

Court Department This former division of the Ministry of Justice (MoJ) has now been

placed under the joint-authority of the Supreme Court and the CoJ. It retains a broad

role and exercises several functions. The most important ones concern the budget and

human resources management on one hand and the enforcement of judgments on the

other. The Court Department‟s regional offices also assist local courts in identifying their

needs (for example, regarding facilities) and in elaborating budget requests. The Court

Department‟s Director and Deputy are appointed by the President.

National Council of Judicial Affairs (NCJA) Established by law in 2007, this organ has a

mixed composition of 16 members representing equally the judiciary, parliament, the

executive and civil society. The chief responsibility of the NCJA consists of selecting and

presenting candidates for judges to the President who approves appointments. This organ

also reviews the procedural aspects of decisions on disciplinary cases adopted by the CoJ.

Court system The processing of law cases is essentially carried out through a court

structure consisting of a Supreme Court (third-instance court), eight provincial (Oblast)

appeal courts of second instance and 69 first instance city and district (Rayon) courts.

The latter, which are spread all over the country, have a general jurisdiction whereas

Inter-rayon Economic Courts, also covering the country as a whole, have exclusive

jurisdiction over commercial claims. Inter-rayon Economic Courts have taken over the

jurisdiction on economic cases, which was previously exercised by the arbitrage courts

until their abolishment in 2004. They have exclusive jurisdiction in all business-to-

business litigation, as well as certain specific issues, such as arbitration, competition law,

securities regulation, bankruptcy and tax, as well as administrative matters. The Rayon

Courts consider civil-commercial matters, including disputes between business entities

and individuals, as well as criminal and other civil litigation. There is no specialization in

Rayon Courts.

2.3 Project Background and Outline

The total budgeted value of the Phases I – III of the Project was € 2,153,115. The EBRD

and IDLO have agreed on a cost-sharing agreement under which the Bank‟s donors

provided the main portion of funding for the Project and IDLO covered the remaining

portion of funding through its own resources.14

The idea of the Project was developed in late 2004 following an EBRD review in a number

of Early Transition Countries (ETC), which showed a gap in the commercial law sector

and the absence of a systematic programme for improving the performance of judges.

As a result of this review and an in-country needs assessment carried out in 2005,

Kyrgyzstan was selected for implementing a pilot project. The Project‟s implementation in

the field started in March 2006. In the contractual arrangements between the Bank and

IDLO, the Project is divided into three phases (the “Phases”) that date back to 2005. The

current Phase IV started on 16 March 2009 and is to last until December 2009. The

evaluation covers the initial three Phases, but not Phase IV.

Phase I (January 2005 – September 2005)

IDLO and EBRD performed preparatory activities for the Project by carrying out an

14 The original plan called for IDLO to seek other donor contribution for 17% of the Phase II Budget. Because the IDLO Project Management was unable to obtain any other donor co-funding, IDLO eventually decided to co-fund 7% of the Project itself and EBRD received additional 10% of the funding from the Swiss Government.

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inception mission in the country and in March 2005 conducted a survey of judges.15 In

September 2005 an Action Plan (the “Action Plan”) was developed outlining the

objectives of the Project and the scope of work.16

Phase II (March 2006 – June 2008)

Phase II concerns the implementation of the five complementary components of the

Action Plan. These are specifically:

Activity 1: Institutional Development of the Judicial Training Centre (JTC);

Activity 2: Training for judges of the Kyrgyz Republic dealing with commercial and

civil- commercial matters;

Activity 3: Apprenticeship programme in the commercial courts of Russia for select

junior judges;

Activity 4: Development and equipping of a commercial law library in the JTC;

Activity 5: Preparation and dissemination of a commercial law bench book.

The evaluation of the Project is part of the activities planned under Phase II of the

Project.

Phase III (August 2008 – March 2009)

Phase III of the Project was developed as a follow-on to the Phase II. A “Supplementary

Action Plan” was aimed at complementing the Project‟s activities that could not be

implemented in full during Phase II or required additional support to create a wider

impact of the Project as a whole. The Phase III focused on:

Activity 1: Implementation of the Institutional Development of the JTC;

Activity 2: Additional training for judges;

Activity 3: Provision of Information Technology System of Access to Legislative

Database;

Activity 4: Continued Development of the Commercial Law Library; and

Activity 5: Translation into Kyrgyz of the bench book developed in Phase II.

IDLO/ EBRD Project signed a Memorandum of Understanding (MoU) with the JTC and,

subsequently, with the Supreme Court of Kyrgyzstan, which provided the framework for

institutional partnership.

2.4 Project Organization and Management

Implementation has been carried out by the Head of the Legal Transition and Knowledge

Management Team at EBRD and by the IDLO Project Manager (together referred to as

the “Project Management”) leading a team of four full-time and one part-time staff

members. The Project has been managed from Italy and implemented by the field office

in Kyrgyzstan where three national Project staff members are based. The Project

Management travels to Kyrgyzstan on a „need‟ basis up to four times per year.

15 Vitosha Research, a Bulgarian consulting firm, was commissioned to undertake the survey. See Analytical Report Judicial Training Needs Assessment Survey, May 2005. 16 See the Action Plan for Commercial Law Judicial Capacity Building Project in the Kyrgyz Republic, September 2005.

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3. DETAILED FINDINGS IN PROJECT COMPONENTS

This section analyses progress against objectives in implementation of the Project

components as defined in the Action Plan.

The Phases I and II were designed and implemented at a time when IDLO had a different

approach to programming and many standard practices in international programme

development17 had not yet been introduced.

3.1 Activity I: Institutional Development of the Judicial Training Centre

The Project focused on strengthening JTC capacity to provide continuous education to all

judges, building upon the foundations left by the USAID-funded ARD Checchi project. The

technical assistance consisted of three consultancies and joint implementation of IDLO/

EBRD training activities. Infrastructural assistance involved partial refurbishment of

premises and supply of materials and equipment. The consultancies focused on (1)

strategic planning; (2) evolution of a system of judicial education and curriculum design;

and (3) financial management. Progress has been affected by several factors beyond the

Project‟s control, which undermined effectiveness, such as changes in the JTC status,18

changes of the JTC directors, high staff turnover and an influx of other donor funds and

activities, which sometimes overburdened the Centre.

3.1.1 Consultancies

The consultancies on strategic planning and the system of judicial education were viewed

by the JTC as successful. The team reiterates the main recommendations of the

consultants, which are still valid.

The strategic planning consultancy concentrated on the organizational structure of the

Centre, budget and strategy development, human resources management and raising

professional standards. The planning exercise was appreciated by the JTC as a standard-

setting experience which had not been practiced before. The Centre undertook a number

of steps to implement the consultant‟s recommendations in producing its own strategic

plan. The three-year strategic plan was in the process of finalization at the time of the

mission (February 2009) and about to be submitted to the Supreme Court and the

Council of Judges. Following the change of the JTC status and leadership in 2008, further

development of the strategic plan, was taken forward by the USAID-funded DPK

Consulting in 2008 alongside IDLO/EBRD continuous technical assistance. The work on

the strategic plan continues to be the object of two donors‟ programmes. Still, according

to the JTC Director, several objectives of the Plan cannot be implemented until its

adoption, although staff understands the importance of institutional development and of

a more structured relationship with donors.

The consultancy on a system of judicial education19 was a follow-up on the Enhancing

Professional Skills of Judges, Bailiffs and Courts Staff Concept Paper, drafted by the JTC

in 2004. In 2006 the consultant conducted a comprehensive review of the system of

judicial education in the Kyrgyz Republic and provided recommendations on how to

improve the system in legal, institutional and methodological respects using the

examples of best practices from foreign jurisdictions.

According to the JTC Director, the three year training plan for 2009 – 2011 incorporates

the relevant recommendations of the expert. The consultant paid a follow-up visit in

17 For example, such as Results Based Management (RBM) and a formal monitoring and evaluation function. 18 As of 2008, the JTC was placed under the supervision of the Supreme Court and the Judicial Council and started providing trainings only to judges. 19 Originally this consultancy was designed as aimed at “enhancing the existing commercial law curriculum”.

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October 2008 to strategically review the implementation and the progress achieved, and

to make readjustments in light of the institutional and legal changes, namely in the area

of education for candidate judges. Many recommendations have been implemented, while

others require a longer time horizon and a more secure funding base to become fully

entrenched. Some recommendations such as to treat knowledge of substantive law as a

prerequisite for training and not as its goal, reached an audience beyond the JTC and

were taken on board by the Council of Judges.

These recommendations are valuable not only as technical assistance to the JTC, but as a

guide to the overall Project strategy development. For example, the consultant

emphasizes that it is important to reach the correct balance between transferring

knowledge and practical skills. Education needs to incorporate different ingredients

including knowledge, skills and values. Skills and standards, such as constitutional and

ethical norms, psychology, code of judicial honor, human rights, have to be given a

higher priority. The consultant also recommended a review of categories of cases, which

are commonly overruled in order to provide more training in these subjects and a

regional breakdown of case portfolio in different parts of the country to tailor the training

accordingly.

The recommendations target larger institutional and policy reform aimed at the

modernization of the system of judicial education as a whole rather than curriculum

development in a narrow sense. They have a great deal of merit, but may have been too

elevated for the JTC‟s institutional clout and the capacities of nine mostly junior

personnel to take them forward. Nevertheless, they laid the foundation for continuous

advocacy efforts by the Project Management targeting judicial leadership. The Supreme

Court, the Council of Judges and, in future, the parliamentary committee on legal issues

are a more appropriate target group.

The consultancy on financial strategy, public relations and resource management was

carried out by two visits of a consultant in 2006 and 2008 with the aim for the JTC to

achieve financial independence and be able to communicate and coordinate with external

actors. However, the JTC legal status and turnover of directors acted as impediments,

while the need for fundraising progressively became less acute, given that donors started

to line up with offers of support. From the JTC perspective, the consultant sought to

perform fundraising and develop relationships with external actors on behalf of the JTC

rather than enabling and supporting the Centre to do this on its own in the future. Since

the consultancy has not been very effective from the JTC viewpoint, the team questions

the rationale for the second mission of the consultant.

The JTC demonstrated certain progress towards implementation of the IDLO/ EBRD

recommendations given constraints, such as staff turnover, shortage of funding,

institutional change and a didactic culture engrained by decades of Soviet education. The

recommendations, together with the IDLO/EBRD demonstration example, gave to the JTC

a sense of best available practice to aspire to. Thus, they are considered as a standard-

setting exercise than a practical guide to short-term action, while their full

implementation may take a decade. The caveat is that the credit cannot be entirely

attributed to IDLO/EBRD, but also to other assistance providers.20

Building of institutional capacity by external action is often not an easy task, especially

when the receptivity of beneficiaries is insufficient. However, all consultancies lacked

operational support and coaching to accompany implementation of the consultants‟

recommendations. From the JTC perspective, consultants would perform their function

and leave, while the Centre had to ensure the follow-up steps without much guidance.

The capacities of the JTC, mostly junior staff, may have been overestimated. This

20 ARD Checchi, DPK Consulting, GTZ, Danish Institute for Human Rights have been involved in different times with the JTC development.

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resulted in offering support that did not always match the Centre‟s capabilities to absorb

assistance.

3.1.2 Institutional Partnership

The Project started with enthusiastic support by the first JTC Director. A MoU was signed

and cooperation progressed well, with the Project staff hosted by the JTC. The situation

altered when the second (acting) Director took office. A breakdown of the relationship

with the second JTC Director negatively affected the Project progress as of the second

half of 2006. Cooperation has been restored after the third Director was appointed in

summer 2008. Trainings are now run again at and with the JTC, which is a sign of

improved collaboration. Throughout its duration, the Project rendered infrastructural

assistance to the Centre.21

During the Project‟s duration, the JTC leadership changed three times. Short spell of

appointments are explained by the fact that the position of JTC Director is typically

occupied by young legal professionals aiming to become judges and benefiting from the

visibility of the Director post. Thus, the level of commitment of the first JTC Director to

the position might have been overestimated as lasting. With changes in leadership, some

JTC staff are replaced each time with new hires lacking the necessary experience.

The MoU between IDLO and the JTC in the delivery of trainings puts responsibilities on

the JTC, such as scheduling of the trainings, forming the training groups and organizing

logistics support. No fees for the JTC staff and Director are provided for the

accomplishment of these functions.22 Yet, the Centre kept suffering from shortage of

financial resources and the staff salaries being low, whereas the activities grew with the

progress of the IDLO/EBRD training programme and increase of other donors‟ trainings.

Cooperation in the development of a work plan between the JTC and IDLO/EBRD was

considered deficient by the former.23 The planning of this component did not quite

foresee the high personnel turnover;24 the limited resources; and the level of

commitment that can be offered by the JTC human resources in such conditions. The

Project Management‟s perspective was that it delivered the planned outputs and that

responsibility for the follow-up lies with the JTC.

There was also a feeling among the JTC staff that the IDLO/EBRD Project is very well

resourced and is willing to use financial incentives for causes it wants to support. This

created an expectation – however undue - that the Project should have made some effort

to cover at least the Centre‟s administrative costs for organization of trainings. In the

team‟s assessment, non-financial incentives such as ad hoc trainings for the staff (e.g. in

business English, computer literacy), retreats or study tours to foreign training

institutions for the Director could have made the cooperation with IDLO/EBRD not only

burdensome, but also attractive.

21 The Project has provided the following material assistance to the JTC: 1. Remodelling of two rooms at the JTC: painting and refurbishing of walls, purchase of lighting, air conditioner and door locks; 2. Repair of toilets (in 2008 and 2009). 3. Purchase and installation of network equipment for 10 computers. 4. The Project driver was used by the JTC. 5. Use of the LCD projector as needed. 22 “The condition of the approval of funding for this Project‟s component was that the JTC undertook to provide “in kind” contribution to it in the form of office space and personnel inputs to be provided by its employees. This was the provision of the April 2006 MoU with the JTC. No compensation for these services was envisioned. The Project however covered the costs of a financial assistant at the JTC”. Quote, Ms. Irina Rabinovich, Project Management. 23 Staff meeting with the JTC in Bishkek and interview with the 2nd JTC Director. 24 The evaluation team meeting with the JTC staff revealed that 5 out of 9 members started in 2008, - staff meeting, Bishkek, February 2009.

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The other issue clouding the relationship has been transparency of the seminars‟ costs.

Seminar budgets used to be prepared jointly when the 1st Director was in the office, but

this practice halted under the 2nd Director. The JTC stressed that other international

partners share their activities‟ budgets or prepare budgets together with the JTC. In fact,

budgetary transparency of international programmes is increasingly being encouraged by

the government. The team acknowledges the Project Management‟s perspective that

budget transparency vis-à-vis the JTC was not part of the terms of the original

agreement with IDLO/EBRD. However, in future more openness on the financial side can

contribute to a trusting relationship.

The unfortunate experience with the JTC leadership showed that personality matters, and

that communication and management problems may exacerbate tensions and transform

them into structural and longstanding break-ups. The lesson is that communication and

nurturing relationships needs to be given a higher priority when a partnership is being

formed, and that senior management has to be prepared to perform a crisis intervention

function at an early stage if problems occur.

Recommendations for Activity I

Involve the JTC Director in talks with the Supreme Court and the Council of

Judges on training programme design and selection of trainers;

Put more emphasis on the JTC staff empowerment;

Strengthen collaboration by offering incentives, such as trainings, internships and

study tours for the JTC Director and staff, and by improving budgetary

transparency vis-à-vis the JTC;

Ensure tighter follow-up on the consultants‟ recommendations by developing

concrete action plans with specification of timeframes, inputs and responsibilities.

Better interaction with the consultants on a recurring basis, or continuous support

by the IDLO/EBRD Project staff through on-the-job coaching can create a stronger

outcome;

Lobby the Supreme Court to make the position of JTC Director more lasting, e.g.

by taking an obligation to make a three-year commitment to the post.

Assess potential areas for expansion of the JTC role, such as (1) improvement of a

credit and certificate system linked to continuous judicial education for sitting

judges; (2) development of monitoring indicators; and (3) access to Supreme

Court‟s records on judicial performance of trained judges.

3.2 Activity II – Training for Judges on Commercial and Civil Commercial

Matters

3.2.1 Assessment of Training Needs

Overall, the IDLO/EBRD Project demonstrated good achievements towards reaching the

objective of knowledge transfer.

The training component was based on an assessment of needs in judicial training

undertaken on a country-wide basis. The Project solicited judges‟ opinions on their choice

of subjects, modules and methodology for future trainings by conducting a survey in

March 2005 (the “Survey”). The methodology involved quantitative research and face-to-

face interviews with key informants. Respondents were judges of the Supreme Court and

judges practicing at other courts (Single Judge Rayon Courts, Inter-Rayon Economic

Courts, City Courts, Oblast Courts) of all eight provinces.

The survey tested substantial knowledge and identified areas of commercial law in which

the judges‟ knowledge proved deficient, as well as areas in which judges expressed a

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demand for training.25 The survey results formed a basis for the development of a

training programme, but supplementing these results by the views of other actors, such

as the users of the judicial system could have built a more comprehensive picture, for

example, highlighting a problematic area of enforcement of judgments.

The opinions of judges were duly taken into account in the training programme design.

IDLO/EBRD followed the judges‟ recommendations that trainings should be accompanied

by legal case studies and debates. The same applies to the curriculum design, which

emphasized the demand for training in Kyrgyz Republic legislation. Several subjects were

included in an expectation that even if some areas of law are not in high demand now,

e.g. competition law, such demand will emerge when the economy and society advances

further.

IDLO/EBRD designed a high-quality training programme, which sufficiently took into

account the needs in enhancement of professional knowledge of the judges as confirmed

by the Vitosha Training Outcome Report, the Evaluation Forms of each training seminar

and the team‟s findings. The majority of judges were highly satisfied with the offered

trainings, although a few found some training not particularly relevant for their needs,26

while a few higher courts judges found some training too basic. Given that the need for

continuing legal education in commercial law was identified as higher for Rayon Court

judges (who also represent the highest percentage of the IDLO/EBRD trainees), more

attention might have been paid to their specific needs. The Project has acknowledged

this by moving to split trainees into streams depending on their skill level in a particular

area.

The training needs assessment indicated the necessity to foster efficiency in case

processing. Thus, to meet this demand, in addition to substantial law, trainings were

organized on opinion writing, facilitation of settlement of disputes, investigations,

analysis of evidence, legal research and court enforcement actions. However, addressing

these needs has not been viewed as a high priority by the Project, as the main focus was

on knowledge advancement.

3.2.2 Methodology and Organization

IDLO training methodology has been a star of the IDLO/EBRD Project, praised by all

respondents inside and outside the Project. It is considered as unique in its features

because of its interactive and practical modality, trainings of trainers (TOT) and the role

of facilitators. This methodology marks the identity of IDLO vis-à-vis other training

providers and is now sought to be replicated by others. The application of IDLO

methodology was successful also thanks to the active involvement of the Supreme Court

and the selection of respected national experts. Trainers and facilitators were selected by

the Supreme Court. Still, in future more transparency in such selection would be useful

for a more accountable ownership of the training programmes.

All interviewed judges are highly satisfied with the training they received and in fact

struggled to make any comment for improvement or distinguish which training was

better. The most popular trainings were the Land and Real Estate Law and the Business

Organizations. The Vitosha Training Outcome Report‟s conclusion that nearly 95% of all

the surveyed judges found all the trainings “highly” or “very highly” useful for their work

is fully endorsed by the team‟s findings.

Most of the trainers and all facilitators had undergone the TOT. This was very effective

and all facilitators commented with enthusiasm upon their involvement in the training

25 See Analytical Report, Judicial Training Needs Assessment Survey, May 2005. 26 For example, training which dealt with contracts for shipments was considered not very relevant since Kyrgyzstan is a landlocked country; the same was expressed with regards to the trainings on financial accounting and analysis offered to Civil Panels‟ judges who do not apply such concepts.

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and preparation of teaching materials. The inclusion of facilitators was also highly

appreciated by the trainees. The role was well understood by most of the facilitators

although, because of hierarchical relations with senior judges performing as experts, a

few facilitators found it hard to carry out effectively their function in stimulating a

discussion given the cultural context of respect for seniority and age. However, the

facilitators not always coordinated sufficiently with the experts on the substantive

preparation of the courses. Experts were left to involve facilitators beforehand.27 It is

suggested that IDLO/EBRD pays more attention to such coordination to ensure that

facilitators are well acquainted with the legal subjects on which their substantive inputs

might be required.

Almost all the interviewed judges28 noted that the quality of distributed materials is

commendable and that they keep referring to them regularly on a need-basis. The

handbooks were shown to the team during visits to the courts and appeared to be used.

An ever-rising demand for more material is being satisfied by publication of a bench

book.

The Project provided trainings on accountancy, on computer literacy and on judicial

decision writing, but these were concentrated in Phase III and might have achieved more

if spread more evenly throughout the whole Project duration. Some judges noted that the

computer and judicial decisions trainings were too short and expressed a demand for

further judicial skills training. Even though each training was based on a practical

approach, skills development could have been allocated a higher priority.

The Project included a separate training on execution of judgments for 30 bailiffs. This

was definitely a step in the right direction, and, considering the magnitude of the

problem of enforcing judgments in the country and a shortage of 177 bailiffs,29 this area

can receive more priority attention in future. A number of interviewed judges complained

about the poor preparation of bailiffs and inefficiency of the Court Department, which is

ultimately responsible for the implementation of court orders.

On logistics, the use of venues on the Yssyk-Kul Lake for training was much appreciated

by the beneficiaries. The team also values the fact that, since the relationship with the

JTC has resumed, the JTC facilities are again used for the IDLO/EBRD trainings.

There is a high demand for continuous education of judges through the IDLO/EBRD

trainings given that: (1) the experience of such trainings has been quite positive; (2) new

laws are passed continuously requiring constant updates; and (3) the JTC is not yet able

to provide trainings autonomously.

3.2.3 Impact

The Perspective of Judges

Unified interpretation of laws in the commercial law area has improved, according to the

interviewed judges, including those Supreme Court judges who review judicial rulings of

the lower courts. This is leading to a more harmonized approach to the application of

laws and better quality of judgments. The latter include a more appropriate use of legal

terminology and more refined motivations, based on a combined consideration of

relevant legal provisions. The interviewees reported that trainings offered them a forum

to discuss thoroughly current legal issues such as conflicts between the Civil Code and

new laws (e.g. law on collaterals), thus stimulating initiatives at the Supreme Court for

clarification of the applicable rules. The development of a more uniform approach in the

judicial decision-making was facilitated by the involvement of the Supreme Court judges

27 It was noted in the interviews that experts who also performed the role of facilitators before, sought to work with facilitators in preparation for the seminars, but others, mostly senior judges, seldom did so. 28 Contrary to only 45.7% of the surveyed judges in the Vitosha Training Outcome Report‟s results. 29 See the International Crisis Group Report “Kyrgyzstan: the Challenge of Judicial Reform”, Asia Report No. 150, 2008.

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as trainers, which opened them to questioning and put them in the centre of judicial

debate.

Greater compliance with procedures and better case preparation. The judges feel more

disciplined in complying with procedural requirements, having been reminded of the due

process in all phases of the assessment of a case. Most of the interviewed judges stated

that they perform judicial research and evidence processing on a regular basis before

drafting a ruling. The major obstacles in applying the knowledge acquired in the trainings

were the lack of resources, high workloads and the unfair pressure put by litigants on

their decision-making.

Development of a unified professional group. The training events reinforced the ties

among judges and inspired a sense of belonging to a professional category, since they

facilitated an exchange of experiences between courts from different parts of the country

and offered a networking opportunity to judges operating at different levels of the judicial

system.

The Perspective of other stakeholders

The improvement of substantive knowledge of the judges, especially at provincial and

inter-rayon economic court levels and at the Bishkek city court, was confirmed by the

practicing lawyers interviewed, who reported that in the last three years judicial

performance has been slightly advancing. The lawyers‟ perception is that greater

problems, particularly in terms of consistency of judgments, remain at the first instance

level. Lawyers also observed that judges generally are becoming more aware of changes

in the legislation and issuance of new laws. The team acknowledges that these reported

impacts are not necessarily attributable to the IDLO/EBRD trainings given that many

judges have also received trainings from other sources.

Yet, some attorneys argued that more substantiated legal reasoning does not necessarily

entail the capacity to issue a fair judgment. When asked to express an opinion on how

many commercial law cases are considered on merit, the lawyers‟ responses were that

such cases ranged from 50% to 80%, excluding the ones in which strong political

pressure is applied, which almost no judge can resist. Increased predictability of

judgments in terms of the tendency of court to follow the practice of the Supreme Court

was confirmed by the lawyers who admitted to referring themselves to such practice

more often. Observing procedures in presiding a court hearing, computer literacy, access

to minutes of proceedings and, least but not last ethical behavior still require

considerable progress.

3.2.4 Statistical Data Analysis

According to available statistics,30 consistency of the rulings is to some extent growing.

Court statistics show that the number of economic cases overruled by the Supreme Court

in 2007 was slightly lower than in 2006 (15 cases less) and that appeals are decreasing.

Moreover, in 4 out of the 8 provincial (Oblast) courts (Bishkek, Yssyk-Kul, Jalalabad and

Osh), in 2007 the number of rejected appeals was higher than the number of appeals

which remained under consideration by the courts. In several courts such as the Bishkek

Oblast Court and the Jalalabad Oblast Court, the number of rejected appeals was almost

double the number of appeals which remained under consideration. Overall this data

could be interpreted as a sign of greater efforts at first instance level to conform to the

provincial courts‟ practice and as a sign of moderate improvement in performance in

managing economic cases at the level of Rayon Courts and Economic Inter-District

Courts.

30 See Annex VI Supreme Court Official Statistics for 2006 and 2007.

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Court management statistics also show a growing number of economic and civil claims

lodged with courts throughout the country. In 2007, except for the Osh and Batken

provinces, all other provinces have experienced a moderate increase in economic appeals

filed with the provincial courts (2nd instance courts) since 2006.31 This data can be

interpreted as a sign of emergent trust of businesses and ordinary people in the court

system, but also as an indication of higher economic activity in the country. According to

the prevailing opinion of the interviewees,32 this increase in caseload was stimulated by

the recent legislative changes which reduced the amount of procedural court tariffs for

lodging a case and/or an appeal and made them payable after the trial.

3.2.5 Monitoring

The quality of training has been monitored through „end of course‟ questionnaires and a

consolidated questionnaire administered in March 2008. The Project took into account the

results when tailoring further training offers. The percentage of respondents to the

questionnaires in the courses is significant.33

As a monitoring tool, the Project conducted an end-of-course survey in 2008, which

compared responses of trained judges with those of untrained judges from the 2005

Survey34. The 2008 Vitosha Training Outcome Report finds that overall judges from the

inter-rayon economic courts, city and provincial courts (first group of judges) have shown

results similar to those shown by this group in 2005. The second group of judges (Rayon

court judges) performed slightly better with a modest increase in the rate of correct

answers. For both categories the results in knowledge improvements are higher than in

2008, but only marginally.35

While many specific findings of the Vitosha Training Outcome Report match the team‟s

own findings, they may not provide the full picture. Some questions used in both the

2005 Survey and the 2008 questionnaires appear too simple, while others, such as

questions on competition law or intellectual property law, seem too distant from what can

be realistically expected for a judge to know on these topics in contemporary Kyrgyzstan.

While there are results in some instances that point to no increase or even a decrease in

knowledge, this has to be mitigated against the changing composition of the Kyrgyz

judiciary in the last three years. A share of the judges trained by the IDLO/EBRD Project

who answered the 2008 questionnaire might not necessarily be the same judges who

answered the 2005 questionnaire since from January 2005 to January 2008,

approximately 200 judicial appointments were made, out of which 100 are new junior

judges.36 Attendance rates according to the Vitosha Training Outcome Report were

relatively low, but the actual attendance was much higher.37

31 Approximately 495 more economic cases than in 2006. 32 Also confirmed by businesspeople survey, see Annex V. 33 There is a difference in the format between the standard end of course questionnaire and the consolidated end of course questionnaire. Whereas the former focuses on the issues aimed at improving the next courses, i.e. on the quality of instruction, methodology, material, management and logistics of the course, the latter includes general questions on capacities acquired, their prospective use in the future and knowledge sharing. These latter questions are aimed at measuring „changes in attitude‟ alias outcomes. They were put forward to the trainees after almost two years of trainings and did not concern each training received, but the whole training experience with EBRD/IDLO. Furthermore, the answers to the final consolidated questionnaire are indicative of issues such as a poor level of knowledge sharing among trainees and their colleagues who did not participate in the training and the neglect of legal literature by judges. 34 Both the 2008 and the 2005 survey were commissioned to Vitosha Research. 35 In both surveys, over 50% of judges answered correctly to 70% of the general questions. The second group of judges (Rayon Court Judges) has increased the rate of correct answers from 70% in 2005 to 80% in 2008. Rayon Court Judges demonstrated improvement in 6 out of 15 questions overall. Yet, in terms of the Kyrgyz law section, 74% of Group 1 and 71% of Group 2 respondents gave correct answers to at least two of the four questions. In 2005, this was true only for 47% of the respondents in each group. 36 In addition, the judicial corps was increased by another 50 appointees by President‟s decree during 2008. The figures cited above were reported by the Project staff in Bishkek. The team was unable to obtain official information on the exact number of new hires from 2005 to February 2009, as different respondents cited

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It is the team‟s understanding that the improvement in substantive knowledge of judges

is higher than that illustrated by the Vitosha Training Outcome Report. In future the

Project needs to consider whether surveys are the most effective monitoring tool and if

used, whether they can be undertaken by a national firm working together with lawyers

from the Kyrgyz Republic. Other tools can include analysis of court rulings, direct

observation of court practice and periodical feedbacks from the business community that

can link inputs to the quality of outcomes.

3.2.6 Future of Training

Candidate Judges

In accordance with the USAID Millennium Challenge Threshold Programme agreed with

the government, the Kyrgyz side has to show that by July 2010 it has in place an

effective system of initial training for candidate judges. The JTC has been charged with

accomplishing this task under the direction of the Council of Judges. The large influx of

new judges that occurred since 2005 indicates that upgrading of new judges‟ knowledge

is a priority given that (1) newly appointed judges have diverse backgrounds, e.g. police,

prosecutor‟s office, customs; and (2) a standard training at the JTC for candidate judges

is still missing. Training for the candidate judges is to be provided by the Project in the

next phase. This initiative is in line with the current priorities of the JTC and CoJ. The

team supports this provided that a comprehensive needs assessment is carried out

before suggesting a training model.

Recommendations for Activity II

Develop effective monitoring tools for quality control such as more comprehensive

end-of-course questionnaires, analysis of rulings or surveys of court users;

Consider tailoring a number of trainings to the greater needs of the Rayon Court

sitting judges or of the newly appointed judges;

Reinforce training with a greater emphasis on skills (drafting of rulings,

investigations, evidence processing, procedural requirements etc.) in each training

offer, and standards, such as behavior/ethical codes and psychology;

Include a balanced mixture of teaching on substantive knowledge, technical and

procedural skills and ethical codes in future trainings for candidate judges.

3.3 Activity III – Apprenticeship Programme for Junior Judges

Originally, the Project design included one apprenticeship programme in Russia for 12

junior judges from the Kyrgyz Republic. The intention was for the apprenticeship to last

for two months, but it proved impractical to release judges from their duties for such a

long period. The component was split in two parts to shorten the time and include more

beneficiaries. A three week apprenticeship was conducted in Kazakhstan in 2007 and

another one in Russia in 2008.

Apprenticeships were appreciated by the judges who took part in them. This is in line

with the results of the questionnaires filled in upon their return to Kyrgyzstan: 83% rate

of satisfaction in Russia and the same for Kazakhstan. The judges expressed that they

wished to participate in similar future programmes. The judges reported that they

acquired new knowledge on: (a) court systems, case management and procedures, such

as designated mentoring for new judges, roles of court staff, ways of dealing with

disruptive behavior in court, audio recording of court proceedings in Russia and

different percentages, for instance, the Chair of the Council of Judges noted that the turnover (new hires, judges retiring or dismissed) is around 50%. Non-judicial stakeholders also confirmed an influx of new judges in the last three years. Even if figures are unattainable, the overall tendency is clear. 37 Based on the Project Management‟s list of invited and actual training participants, and the number of completed evaluation forms, the attendance rates were between 60% and 100%, except for the Competition Law and Securities Law workshops (roughly 25%).

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Kazakhstan; (b) the way commercial and civil law cases and legal sources are

considered, which they compared with their own practice and national legislation (many

commented that Kyrgyz laws are very similar to Russian laws but more advanced than

Kazakh ones); (c) recognition of foreign judgments by national courts; and (d) public

relations and outreach.

The combination of workshops, lectures and court hearings was considered as a useful

methodology. All the interviewed participants received materials during their visits

abroad, which they reportedly use, and were satisfied with the opportunity to compare

experiences, draw parallels and develop ties with their foreign colleagues, which they

maintain. Judges reported in the focus groups that thanks to the knowledge gained

during the apprenticeships, they have become more confident in comparative legal

analysis, fact finding and the administration of hearings. They also shared knowledge

with their colleagues at court through presentations and by making materials available.

The overall objective to foster cooperation between countries with a similar jurisdiction

was achieved, however more significantly at the level of Chairs of the Supreme Courts

who were involved in the organization of the programme. Thus, the Project has fostered

individual linkages with judges in Kazakhstan and Russia.

All the regions of the country were represented and an almost equal number of judges of

first and second instance participated in the programmes. Still, the team found the

application of selection criteria inconsistently applied, i.e. 35 years of age, proactive

participation in IDLO/EBRD trainings, a minimum of five years of judicial experience. One

judge was appointed shortly before going on an apprenticeship and did not participate in

IDLO/ EBRD trainings. Another participant was far beyond the age limit threshold. Given

the limited number of places (24 in total), the fact that two judges went on both

apprenticeships, while others did not hear that such a programme existed, could have

been avoided with a more efficient selection of beneficiaries. Concerns over „ageism‟ have

been brought up to the team at a focus group with judges in Osh. The Project

Management pointed out that the choice of participants was within the responsibility of

the Supreme Court. Nevertheless, proactive guidance on the selection process based on

the Action Plan‟s criteria and on the MoU between IDLO and the Supreme Court would

have been legitimate.

The Supreme Court issued a press release about the programme and the participants

made presentations on their experience at the courts where they work. The follow-up,

however, was insufficient, as no presentations were made at the Supreme Court nor were

individual reports submitted by the participants on possible improvements to legislation

or court system in the Kyrgyz Republic. This seems to miss one of the aims of the

component which was to encourage participants to think of “problem areas,” which are

common for the court systems of the two countries with shared Soviet past and to

identify solutions that could be applied in Kyrgyzstan.38 The Project Management

perspective is that „the alleged lack of following on the apprenticeship programme is the

responsibility of the Kyrgyz counterpart, not that of IDLO-EBRD.‟39 The Supreme Court

has accepted that it could have done better on this.40

The team concludes that this programme could have achieved more impact, through

advertisement and a transparent and competitive selection process if candidates would

have to apply for them, outlining what they would like to get out of this experience.

Linking participation in the apprenticeships with a system of credits for judicial career

advancement can create higher demand for future programmes of this kind.

38 Quote from Apprenticeship Programme Reports and Action Plan, p. 8. 39 Michel Nussbaumer, Comments on Aide Memoire, 6 March 2009. 40 Debriefing with the Supreme Court, Bishkek, 2 March 2009.

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Recommendations for Activity III

Ensure that the selection criteria for apprenticeships are: (1) realistic, (2)

transparent and (3) stringently applied;

Propose to the Supreme Court that candidates apply for the Programme on a

competitive basis outlining what they hope to get out of their time abroad;

Lobby the Supreme Court for linking participation in apprenticeship programmes

to a clear system of credits for the judicial career advancement. This can create

higher demand for future programmes of this kind;

Encourage the participants to make a group presentation to the Supreme Court

outlining their experience and recommending improvements to the Kyrgyz

legislation or court system. This can be also done by submission of individual trip

reports.

3.4 Activity IV – Commercial Law Library

Establishment of a commercial law library was relevant for the judiciary given a deficit of

access to legal materials in the country. In spring 2007, the Project hired a consultant

from Russia for a needs‟ assessment to develop the Library at the JTC. Given the lack of

space in the JTC premises, the Supreme Court agreed to expand its existing library by

holding the collection temporarily until the JTC would move to a separate building. The

Project supplied 200 commercial law publications and hardware.41 There are six Russian

legal journals available and three computers with internet access. The library had an

opening ceremony and articles were published about it. The library was also advertised at

the IDLO/EBRD trainings.

The librarian reported that there were about 180 library users in 2008. The team ran a

survey of Library users for three weeks in February 2009.42 36 questionnaires were

returned. The users are largely satisfied, with 28 out of the 36 respondents stating to

have found the materials which they were searching. Yet, 20 out of 36 found the Library

insufficiently equipped and asked for legal resources on the legislation of Kyrgyzstan,

legal literature, especially on land law, commentaries to codes, online resources and an

online Library catalogue. The respondents noted that some hardware items, such as a

printer, a photocopy machine and a scanner were missing. This is in line with the team‟s

findings from direct observation at the Library.

The selection criteria of texts donated by IDLO/EBRD were based on a consultancy of a

librarian from Russia, and a review by the Supreme Court judges. The selection of

literature provides mostly Russian sources. Although collection of the Russian legal texts

is relevant since much legislation is similar, the absence of sources from Kyrgyzstan,

such as a full collection of court decisions, is a deficit and more sources are needed.

However, as pointed out by some interviewees, national legal literature is scarce. There

is no on-line catalogue which can be accessed from outside, allowing external users to

check what is available. Given the limited space of the library, free on-line subscriptions

to on-line legal journals would be more appropriate than hard copy journals.

Publicity for the Library was perhaps not enough because few of the interviewed judges

had heard about it and those who knew about it were only judges from the Bishkek city

court. The library has limited accessibility (there is a security check point located at the

entrance of the building) and outreach, as a result of which mainly the Supreme Court

staff and some judges use it. For the library to benefit the work of a higher number of

judges and other legal professionals, it needs to be further advertised and expanded.

41 According to the Project Management, the Library now has about 2000 books, of which 1600 were already the property of the Supreme Court, and 200 were donated by GTZ. 42 See the Library Survey in Annex IV.

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This is constrained by the limited budget of the Supreme Court. In 2008, about 70 copies

of books were bought by the Library.

So far the librarian has not received enough training. She reported one-hour training at

the Kyrgyzstan National Library. However, the planned (in March 2009) internship at the

Library of the Russian Law Academy in Moscow seems to overstate the librarian‟s needs.

Additional hours of trainings at the Kyrgyzstan National Library would have been perhaps

sufficient.

Recommendations for Activity IV

Continue this Project‟s component and expand the Library collection in the current

location. Ensure higher coverage of legal sources of the Kyrgyz Republic and

sources in Kyrgyz language.

Explore with universities, NGOs and other international projects which additional

materials are available in the country;

Conduct Library users‟ surveys at regular intervals to assess their requirements;

Request the Librarian to put forward proposals to follow-up on her internship in

Moscow;

Equip the Library with the basic hardware, e.g. photocopying machine, scanner;

Keep advertising the Library in the judicial community through promotional events

and the professional networks, media and Internet.

3.5 Activity V – Preparation and Dissemination of a Bench book

The purpose of the bench book is to provide a user-friendly resource to facilitate common

understanding and application of the commercial and procedural laws in Kyrgyzstan.

Given the shortage of legal literature and manuals in the country, preparation of the

bench book with commentaries on the key commercial law pieces was relevant. The

Project Management presented the bench book at the workshop on "Civil Judicial Trial

Skills" from 10 October - 10 November 2008.

The goal to ensure ownership was achieved by involving the Supreme Court, the JTC and

national eminent jurists in the drafting and editing of the bench book. The latter will also

be published on a CD-ROM. The Deputy Chairman of the Supreme Court suggested that

further updating should continue. He also suggested that the volume be published by a

certified legal publisher.

The CD-ROM and hardcopy of the bench book were under preparation at the time of the

team‟s mission. The web-based format is available free at the link

http://www.benchbook.el.kg/ . Yet, few of the interviewed judges knew about the bench

book, and among those who did, a smaller number admitted to having consulted this on-

line resource. This can be perhaps explained by the scarcity of Internet access. It is likely

that the hard copy version of the bench book will be used more effectively, provided that

appropriate dissemination is ensured. Those who said to use the bench book were mainly

judges from the Bishkek higher instance courts.

Recommendations for Activity V

Ensure regular updates of the bench book (all formats) and monitor use of the on-

line version;

Promote sustainability of the bench book by proposing fees for subscription to a

future updated on-line version that would cover costs of the preparation and

updates by local authors.

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3.6 Access to „Adviser‟ Legal Database

The Phase III of the Project covered the expenses for installation in the Kyrgyz courts of

the legal database „Adviser‟. The Supreme Court Bulletin does not reach regularly all the

courts of the country and access to updated information on new laws and decisions is

uneven. 430 subscriptions to „Adviser‟ were provided to judges throughout the country.

The Project chose the „Adviser‟ system (see www.adviser.kg) as a legal database based

on a cost motivation rather than on its quality. Most of the judiciary has been using the

„Toktom‟ legal database, which had been initially provided free of charge by the ARD

Checchi Project. The Project considered „Toktom‟ more expensive and opted for „Adviser,‟

the price of which, according to the Project Management, was 6 to 10 times cheaper.

However, „Toktom‟ continues to be more used than „Adviser‟, with a number of judges

paying their own money for subscriptions and updates since the ARD Checchi Project no

longer provides for them.

Sustainability of this component was sought by obtaining the inclusion by the Court

Department of the subscriptions into its next year‟s state budget. As a result, from July

2009, IDLO/EBRD may no longer have an interest in improving this tool.

Deficiencies in installation of „Adviser‟ persist, mainly due to the responsibility for

installation of the Court Department, which did not follow-up on it. Spot checks revealed

that distribution criteria of subscriptions are unclear. Some courts rely on subscriptions

for each judge, whereas others have an insufficient number of subscriptions for the

judges (e.g. in the Jalalabad Oblast Court there is one software for 15 judges).

Few judges admitted actively using „Adviser‟ (on average, roughly one out of every five

interviewed judges). Most of the judges indicated their preference for „Toktom‟ because

they considered it more user-friendly and updated. “Toktom” is also a widespread

resource among other legal professionals.

The recipients were not aware of IDLO/EBRD‟s role in providing access to the „Adviser‟

database, although roughly 230 judges were trained to use the database during the

December 2008 computer literacy training. The team acknowledges that it was not the

Project Management‟s goal to link IDLO/EBRD‟s visibility to this component.

Recommendations for Access to Legal database „Adviser‟

Assess costs of improvements to the „Adviser‟ database in terms of access to court

decisions;

Conduct proactive monitoring by spot checks on installation and use of the

database at the courts rather than solely relying on government counterparts.

3.7 Regional Conference

A regional conference was organized in 2006 to bring together various judicial training

centers. Although no regional follow-up has been identified, the outcomes of the

Conference were the links with the judiciary in Kazakhstan that enabled the Project to

organize an apprenticeship in the country.

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4. OVERALL CONCLUSIONS

4.1 Relevance

4.1.1. Country Context

The Project is based on an analysis of the country context, previous international

endeavors in judicial capacity building and an assessment of the needs of the judiciary in

commercial law.

At the time of the Project conception, the country was affected by political and social

turmoil that followed the March 2005 power change and presidential elections of July 10,

2005. Judicial reform was not at the top of the state priorities since greater challenges

were in place. Nevertheless, some measures were adopted: in May 2005 the National

Council on Judicial Affairs was appointed by a presidential decree to put selection of

judges on transparent and democratic basis. On 20 April 2006 a Working Group on

drafting a „Concept of reform of judicial system and law-enforcement agencies of Kyrgyz

Republic‟ was set up by the Presidential Decree no. 179.43 On 8 July 2006 the 5th

Congress of Judges was held, in which the President participated and where a Judge‟s

Code of Conduct was adopted.

The Project did not explicitly link up with these changes at the initial stage, but when the

situation settled down, it gradually developed its niche and its advocacy strategies. For

example, it capitalized upon the Law on Judicial Self-Government adopted on 20 March

2008 (Law no. 35), which determined the main principles of organization and functioning

of judicial self-governing bodies and established a Council of Judges.44 The draft „Concept

of reform of judicial system and law-enforcement agencies of Kyrgyz Republic‟ of 9

February 2009 was unveiled for public consultation to continue until 16 March 2009. The

Concept is the major policy document, which outlines the main changes enshrined in the

new Constitution and new initiatives such as the introduction of jury trials, self-governing

of the judiciary, improvement of working conditions and measures towards professional

integrity.45

In the team‟s assessment, were a more „reform-oriented‟ approach adopted at the time,

the outcomes would have been hardly different because time and resources could have

been wasted on efforts to cope with institutional chaos. However, although the Project

based its operations on the evolving context, the connection between the overall country

reform policy and the Project was insufficiently reflected in its reports and other

documents for the purpose of strategy development and institutional memory.

The Project adopted a practical approach and mostly concentrated on improving judicial

performance. A lack of a competent judiciary has been one of the factors undermining

predictability in due process and rule of law, thus hampering the country‟s social and

economic development. The introduction of a market economy brought a wave of new

commercial law legislation and has created a demand for updating and improving of

judges‟ knowledge and skills in this area. The merger of Arbitrage Courts with economic

inter-rayon courts of first instance in 2004 created the need of many judges to become

more familiar with the new legislation on business matters. The Project has chosen a

relevant and appropriate level of intervention, less exposed to political turmoil.

43„Istanbul Anti-Corruption Action Plan OECD,‟ Report on Implementation of Recommendations, 13 December 2006, OECD HQ, Paris. 44 Other relevant policy documents include President Bakiyev‟s speech at the opening of the 6th Congress of Judges and the Congress Resolution, adopted on 25 April 2008, available at http://www.tazar.kg/news.php?i=8599 and 2007 Constitution of Kyrgyz Republic. 45 Draft „Concept of reform of judicial system and law-enforcement agencies of the Kyrgyz Republic‟, Bishkek, 9 February 2009.

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The Project has demonstrated continuity with the USAID-funded ARD Checchi Project in

building judicial capacity in commercial and administrative law, which drew to a close

when IDLO/EBRD launched their activities in the field. A fruitful dialogue with the ARD

Checchi Project team allowed a re-adjustment of the IDLO/EBRD Project at its early

stage.46 The Project could have capitalized on some other ARD Checchi initiatives even

more, e.g. the legal journal in commercial matters, a significant demand for which still

exists today among judges and lawyers, or the further distribution of the „Toktom‟

database.

The Project has been relevant for the country context, particularly in light of the recent

institutional change, which demonstrates increased attention by the state to

accountability and the professional capacities of the judiciary.

4.1.2 Needs Assessment

IDLO/EBRD carried out an inception mission in 2005 when support of the key

stakeholders - Ministry of Justice, JTC and Supreme Court - was solicited through a

collaborative dialogue. An assessment of judicial training needs was done through a

survey of judges, which unveiled a substantial demand for knowledge advancements.

However, had the views of court users (lawyers and business people) and court watchers

(journalists, NGOs) been solicited, more issues to do with judicial skills and behavioral

standards could have been identified.

The planning of other Project components was in line with the needs of the judicial

system as identified during the inception mission. Institutional support for the JTC was

built upon the foundations laid by the ARD Checchi Project. The design of an

apprenticeship programme for judges in Russian provincial courts was relevant given that

a great part of the commercial legislation in the Kyrgyz Republic is modeled upon Russian

texts, and there are no linguistic or social barriers to prevent beneficiaries from getting

most out of the study visits. Other smaller components, such as the bench book and the

Library, were appropriately based on institutional cooperation with the main

stakeholders.

4.1.3 Relevance of Design and Strategy

The Project‟s objectives as outlined in the Action Plan for Phase II are:

To enhance the competence of judges in commercial law in order to ensure

greater efficacy, uniformity and predictability of court rulings.

To help building lasting institutions that are capable of providing effective capacity

building programs for the judiciary”.

Firstly, the question is whether the Project might have been too narrow in its strategy.

Given that the overarching goal was „to assist the country in the creation of a business

enabling environment‟, the two objectives concern only the judiciary. The strategy misses

another objective to link the training of judges with impacts upon the business

environment to ensure that the perspective of businesses is heard. Such a

counterbalancing objective could have created a challenge for the judiciary from lawyers

and the business community to promote demand from courts‟ users for better

performance. Rather, the design concentrated on the „supply‟ side (provision of training),

while the „demand‟ side (pressure from lawyers, business people and academic experts)

was not creatively thought through to enable linkage to the wider society. A future

strategy could consider the reputation of the judiciary with the public at large, and the

need to bridge the gap between the self-assessment of the judiciary and the assessment

of judicial performance by the court users and court watchers. In its current strategy, the

46 See USAID Memorandum addressed to EBRD/Dan Berg of January 12, 2005.

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Project has not related to this wider group of stakeholders. The design of the Project,

although demonstrating flexibility in implementation, shows that its goal has been too

broadly defined to adequately match a more narrowly focused set of activities.

Secondly, the Project could have benefited from a design more focused on accountability

of the recipients. As the IDLO/EBRD Project unfolded, it lacked a mechanism to relate the

inputs to outcomes, since the latter were not sufficiently elaborated and defined in the

Action Plan.47 There was insufficient inquiry on behalf of the Project Management to

assess whether training indeed leads to improvements. This could have been done

through cooperation with local organizations in a cost-effective way such as by

commissioning analysis of judicial rulings, capitalizing on the existing studies done by

other organizations, conducting surveys of opinion of lawyers and businesspeople, such

as the one done by the team in cooperation with the Bishkek Business Club for the

current evaluation, analysis of press coverage of judicial cases in mainstream

newspapers, such as Slovo Kyrgyzstana or Vecherny Bishkek, to name just a few options.

Such initiatives would have been affordable and well within the resources available for

the IDLO/EBRD Project.48 Both projects were implemented by LARC.49 The Project did

monitor the training impact by conducting end-of course questionnaires and the Vitosha

Outcome Training Survey in 2008, but since these were based on self-reporting by the

judges, they do not provide answers on whether the environment for business is

improving.

Thirdly, provided that “efficacy of rulings” means not only the legal value of judicial

rulings, but also their application in practice, more focus in the Project‟s design on

enforcement of rulings could have made the Project even more relevant for the country

needs. This area is perceived as one of the weaknesses of the Kyrgyz judiciary with

current trends pointing to 80% of judgments not being enforced or being enforced with

significant delays.

The Project Management‟s decision to concentrate on education of the judiciary and

capacity building of the JTC was a deliberate choice due to the available expertise and to

the intention to test a less ambitious pilot project before launching a wider programme.50

4.1.4 Consistency with IDLO Mandate and EBRD Strategy

The intervention has been consistent with the IDLO‟s mandate and strategic priorities,

and fits with the EBRD Early Transition Countries‟ Strategy adopted in 2003.

The IDLO mandate is to promote the rule of law and good governance in developing

countries, transition economies and nations emerging from conflict. The organization

seeks to achieve this mandate by helping these countries establish the practical,

sustainable legal infrastructure needed to achieve economic growth, security and access

to justice. At the time in which implementation of the Project started, IDLO was in the

process of organizing its work into programme streams. The Project fell within the scope

of the Institutional Capacity Building stream. Further to the adoption of the IDLO

47 This is confirmed by the Quarterly Implementation Reports submitted by IDLO to EBRD indicating the deliverables provided in accordance with the contractual arrangements between the two parties with an emphasis on quantitative results. 48 For example, the cost of the OSCE nationwide court observation project was 20,000 Euro with a duration of 10 months and the cost of a World Bank project on „Common Assessment of the judicial system of the Kyrgyz Republic‟, which analysed a random sampling of judicial rulings was $13,000, with a duration of three months. 49 For example, Legal Assistance to Rural Citizens (LARC), a local NGO, has carried out a “Common Assessment of the judicial system of the Kyrgyz Republic”. This is an assessment of the court cases, considered by the inter-district courts for economic and administrative cases for a World Bank project which revealed problems that arise during the processing of the case and influence decision-making process, as well as time periods of considering such cases by the courts. 50 “The focus on judges was also due to cost considerations as the resources for such projects are finite. … regular overview of court rulings … is going to be a very costly exercise”. Communication from Michel Nussbaumer, EBRD, comments on Aide Memoire, 6 March 2009.

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Strategic Plan 2009-2012, the Project is now part of the Institutional Project Stream and

is aligned with IDLO Strategic Objectives, in particular Objective 5.51

From the EBRD side, the Project under review forms a part of the EBRD Legal Transition

Programme aimed at contributing to the improvement of the investment climate in the

countries of operation by helping to create an investor-friendly, transparent and

predictable legal environment. It focuses on the development of legal rules, institutions

and culture. The Programme is administered by the Legal Transition and Knowledge

Management Team within the EBRD Office of the General Counsel, managing legal

technical assistance projects. The Programme is funded with the Bank‟s own budget and

by grants from donor government. The Project belongs to one of the six areas of the

Programme and is a relatively new engagement for EBRD; projects of this type started to

be undertaken in the last two to three years. EBRD was interested in working in this

area, but lacked in-house expertise in judicial capacity building. The partnership with

IDLO was developed because the latter had the necessary technical expertise. The Bank

views the Project as a pilot to possibly expand and replicate in other countries it covers.

Recommendations for future programming

Develop a strategic, longer-term programme with a two to three year time

horizon. In such a programme, the objectives need to be clear, strategically

focused and unambiguously phrased.

When planning any training programme or doing needs assessments, pay

attention to the views of users and watchers of the justice system, not only to the

needs of judges.

Introduce the demand for better performance and accountability from

stakeholders. The Project would benefit from widening its scope and increased

interaction with lawyers, the business community, and academic experts.

Design, together or in parallel, activities for educating lawyers to enable them to

present a challenge for the judiciary of an appropriate caliber. The judges would

then need to refer to their acquired knowledge and skills to keep up.

Lay greater emphasis on efficacy (enforcement of rulings): analyze the reasons

why the situation persists and develop measures to address it in future, including

assessing sufficiency of trainings already provided to bailiffs.

4.2 Effectiveness52

The Project has achieved good progress within its timescale. It has delivered most of its

planned outputs and organized several additional unplanned outputs, e.g. apprenticeship

programme in Kazakhstan, visit of the Supreme Court and the JTC leadership to the IDLO

headquarters in Italy, and a Regional Conference in 2006. Delays when they did occur,

e.g. in the implementation by the JTC of the consultants‟ recommendations, are

understandable. Training delivery has been very effective, with many events organized

on time and well attended by the beneficiary group. The outputs have been mutually re-

enforcing and adequately linked in the Project design. The team noted, however, that the

outputs became increasingly disjointed as the Project progressed, due to a large disparity

in progress between Activity I and Activity II, which were the main components of the

Project.

The Project responded flexibly to the changing institutional environment by developing a

productive cooperation with the Supreme Court when cooperation with the JTC came to a

halt. It also adapted well operationally, transferring trainings on a regular basis to the

venues in Yssyk-Kul. Another example of flexibility was the re-qualification of the training

contents in 2007 due to the appointment of a high number of new judges.

51 See the IDLO Strategic Plan 2009-2012. 52 Effectiveness was analysed in-depth in the Section 3.

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Insufficient resources committed and a lack of monitoring undermined the effectiveness

of the Library and the legal database components, while effectiveness of the

apprenticeship programme could have been stronger, were accountability of the

programme ensured with the strict application and monitoring of selection criteria. In

balancing the two Project objectives, the Management prioritized training delivery above

capacity building, in which effectiveness was lower. In dealing with the problems of the

JTC, communication and human relations management were not given enough weight. A

lack of incentives to collaborate with IDLO/EBRD in training continues to affect the spirit

of cooperation.

No gender problems were traced, with key positions occupied by women at all court

levels.

Concentration on delivery partially obscured a bigger picture, resulting in a shift in focus

from process to product and on activities which were more under direct Project control:

More emphasis on knowledge transfer, less focus on fostering of skills and no

explicit attention to standards required for that knowledge to be applied in

practice; and

Concentration on training and other Project deliverables at the expense of

empowerment of the JTC staff, at a time when the JTC component required more

attention.

Recommendations on effectiveness

Develop a Project document and a Log Frame specifying goals, objectives,

outcomes, outputs and monitoring tools for assessing results. Introduce

monitoring mechanisms for all components, with specific verifiable indicators.

Critically review where the Project‟s comparative advantage in institutional

capacity building lies and what it has to offer to the JTC vis-à-vis other donors.

IDLO/EBRD may consider that empowerment is not its strongest asset and

concentrate on other objectives and activities. The Project may widen its scope of

partners in institutional capacity building and look beyond a sole concentration on

the JTC. Alternatively, if the JTC remains the main partner, greater emphasis on

staff empowerment and accompanying activities is recommended.

4.3 Impact

The Project produced a positive impact on enhancing professional knowledge of the

judges, as a result of which uniformity and predictability of commercial law rulings is

increasing as confirmed by interviewees in focus groups (both judges and lawyers). As an

example, judges mostly deal with issues related to land and property transactions, and

trainings helped to build a more harmonized understanding of law in these areas. It is not

possible to make the same assessment with regards to efficacy of rulings, since

enforcement of rulings was not addressed by the Project, and rulings themselves are

influenced by other factors beside knowledge. The level of enforcement of commercial

law rulings is 20%.53

The main visible changes that occurred as a result of the Project are:

Uniformity of judicial practice has been enhanced as confirmed by the reduction of

numbers of successful appeals against the decisions of lower courts;

53

Anna Matveeva‟s interview with Christoph von Harsdorf, the GTZ EC project Team Leader, who referred to

official figures (Bishkek, February 2009).

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Debates held during trainings stimulated proposals for clarifications of the law and

for law amendments, for instance with regards to the Land Code and the

controversial Law on Newly Discovered Circumstances;

From the lawyers‟ perspective, understanding of intricacies of economic cases by

judges has improved, as well as their presentation and argumentation of rulings;

Trainings inspired commitment to work (confirmed by the Vitosha Training

Outcome Report) and judges seem to take their responsibilities more seriously;

Knowledge and application of new laws and procedures has been improving;

The judges feel more united as a professional category, with interaction among

judges, and between judges and trainers continuing;

Intermix of judges from different parts of the country worked towards fostering a

national identity out of regional loyalties; and

Contacts and exchange of information with counterparts in Russia and Kazakhstan

continue.

As a result of the trainings, according to judges, their competence (knowledge and skills),

has considerably improved. Many examples were cited of better understanding of obscure

or complicated legislation, financial transactions and ability to ask the right questions to

the parties in court. Several respondents noted that they started to be aware of areas of

law which they have not dealt with in their practice, but may have to deal with in future,

e.g. pledges. Several respondents also said that the trainings influenced their attitude

towards commercial companies, as they have been abandoning the prevailing view that

courts should protect „a small man‟ from „big sharks‟ and have started acknowledging

that companies may have legitimate interests which also require protection. The judges

admitted that they could have acquired knowledge even without international support,

but this was likely to have taken much more time.

The increase in judges‟ competence made an impact on restraining the illegal actions of

the local self-governing bodies (“Ayil Okmotu”) e.g. in land allocation, as many such

decisions were successfully contested and the courts even issued special orders against

those Ayil Okmotu, which routinely issue illegal land allocations.

The Project has positively helped to unify judges as a professional group and to increase

knowledge-sharing and networking within the community. Sharing of distributed

materials within a court contributed to a multiplier effect across the board.

The lawyers‟ perspective54 is that some moderate improvements are taking place,

especially at provincial and inter-rayon economic courts. Judges are becoming more

confident, especially in Bishkek, in dealing with commercial cases, know better which

expertise to request and which questions to put to experts, and are more familiar with

new laws. Improvements do not seem to follow any pattern in terms of age (Soviet or

post-Soviet generation), gender or ethnicity.

Lawyers however responded that contextual factors remain powerful. Judges are

dependant on the court hierarchy and on the court chair who assigns cases to judges. In

their view, there is little change at the level of rayon courts as the latter‟s performance

remain less scrutinized. Lawyers reported that three factors influence judges‟

performance: bribery, political pressure and different forms of nepotism. It is the

prevailing view among the surveyed attorneys that about 10% of judges are immune to

such pressures and have a reputation for this. It is very rare for a judge to go against the

interest of a state structure in cases when the state has to incur losses, e.g. pay

compensation or return a tariff/fine unduly levied. In such cases the pressure upon

judges is the greatest.

54

The section presents a cumulative perspective expressed by lawyers. The list of interviewed lawyers is

included in Annex II. The lawyers whose cumulative perspective is presented, were from Bishkek, Karakol, Tyup and Osh.

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Survey of business people carried out by the Bishkek Business Club55 and the

Evaluation team56

According to business people and journalists, the judiciary‟s improvements in rendering

fair and well-grounded decisions are almost non-existent. The results of the survey of

business people, carried out by the Bishkek Business Club and the Evaluation team, as

attached in Annex VI demonstrate a mixed picture, with an overall sense of little change.

40% of the surveyed companies had a direct experience with courts. Out of those

entrepreneurs who dealt with courts, the number of those who were satisfied with such

experience was slightly higher than that of those unsatisfied. Six respondents used

arbitration courts, but the majority tried to settle a dispute through lawyers or other

intermediaries. The use of personal contacts, including those in administrative and law

enforcement bodies, is considered „the most effective, quick and reliable way to solve

problems in business.‟ Still, on the whole, business people are prepared to use the state

court system to resolve problems, but only after they exhaust all other settlement

possibilities. Going to court is regarded as troublesome, time consuming and there is no

confidence that rulings would be fair.

Most respondents (15 out of 25) do not see any change in judicial performance, and

those who see a change, think it is for the worse (4) than for the better (2). A comment

was made that „judges‟ knowledge of law has improved, and their unfair rulings cannot

be explained away by ignorance.‟ The perception of corruption is entrenched („winning

the case is impossible without a bribe‟) and there is a sense that administrative influence

is a factor („judges now listen more to the high-powered figures from the executive and

become more susceptible to political pressure‟). Most respondents feel that courts are

accessible for the business community, since the „change in the legislation on court

duties made it easier to file a case‟.

Markedly, more people are ready to go to court if they have a dispute with an individual

entrepreneur or a private company, and only 5 respondents were prepared to take on

state bodies (a typical comment was that „I will not dare to sue state bodies as it is

counterproductive and can be dangerous, but will be prepared to go to court if this is a

private business matter‟). More people have a pessimistic view on the clarity of

legislation, but others did not have a view as they hired a lawyer. The prevailing view is

that courts protect the interests of state bodies (11), not that of businesses. A comment

was that „the interests of the business community are protected only in case there are

material incentives on offer and there is no political pressure‟.

There may be two sides to this picture: actual judicial performance and the public

perception of it. While performance may be indeed changing, albeit not at a dramatic

pace, public perceptions might need time to catch up with this. However, little is being

done by politicians,57 media and the judiciary itself to promote the reputation of courts,

with the exception of the role played by the Council of Judges.

Positive impacts could have been even greater if development of the standards and skills

necessary to foster competence would have been taken into account more broadly and if

trainings also addressed more enforcement which is crucial for efficacy of judgments. A

rigorous assessment of the impacts is somewhat blurred by the fact that many new

judges came into the system in recent years and that trainings by other providers likely

have contributed to the overall improvement as well.

55

Information on Bishkek Business Club can be found on the Club‟s website http://bdk.kg 56

See Annex V, Opinion Survey of Business People. 57

Both presidents Akayev and Bakiyev referred to judges and bailiffs as corrupt.

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The impact upon building institutional capacity is less pronounced, but the joint

organization of trainings, preparation of a significant pool of trained experts and

facilitators mastering IDLO methodology contributed to this objective. Although trainings

are increasingly organized together, the JTC still lacks crucial capacity and ownership and

seems unable to organize trainings of sufficient quality on its own. The team is not

certain that the JTC regards IDLO/ EBRD as its strategic partner.

The training impacts must be reinforced by other measures in judicial reform to ensure

that they are based on a solid framework and do not only benefit individuals. With this in

mind, the Project has been engaged in advocacy on wider issues. It began to use the

institutional and policy recommendations made by the consultant in the development of a

system of judicial education (Activity I) for its engagement with the Council of Judges

where there is an intellectual potential and the capacity to make change happen, given

the JTC‟s limited capacities to formulate a strategy.

Impacts upon institutional change are by definition elusive; however, the Project has a

receptive audience among senior judicial leadership. An example of such an issue is

judicial appointments. Currently, the NCJA procedure for the selection of judges is

opaque and complicated: after the initial training, and the graduation exam, the

candidate has to pass another exam and then go through an interview. The Project

argued for a reform of the NCJA and for streamlining the procedure for judicial

appointments. This is a sensitive matter, and achieving serious progress on it may take

time. IDLO/EBRD are working together with USAID on this, coordinating messages and

delivering them to different key actors. The Project‟s message is for institutional change,

which can take time to come about, but even within the current system, making the

initial training entrance exam sufficiently rigorous and objective, and providing adequate

initial training as per IDLO/ EBRD recommendations, the potential pool of appointees will

be already improved.

Recommendations for further impact

Introduce reviews of court rulings issued by trained judges for quality control of

trainings. Monitoring of quality of rulings and „court watch‟ types of programmes

are required to continuously assess impact. Access to court rulings provides a

benefit not only to the judges, but also to the users of the system who will be able

to hold the judiciary more accountable for its decision-making. Such initiatives can

be taken directly by the Project, by capitalizing on the work done by others, or by

commissioning a local NGO to perform this task.

Work closely with the Council of Judges to link participation in trainings to a more

transparent and institutionalized mechanism of credits and the judges‟ career

development.

Give higher priority to empowerment, relationship-building and communication

with the beneficiaries to maximize impacts if the Project continues with

institutional capacity building.

4.4 Sustainability

Sustainability was intended to be addressed through „building of institutional capacity of

the JTC‟ and by preparation of a strong pool of 80 trained experts and facilitators. Due to

the slow progress of Activity I, insufficient sustainability has been built so far. The Project

approach of reliance on direct implementation by IDLO/EBRD adopted because of a pause

in cooperation with the JTC led to disempowerment of the JTC staff. The fact that the

progress of the component depended so much on the relationship with the 1st Director

demonstrates that sustainability cannot rely on a key person. Overall, sustainability and

an exit strategy have not been given sufficient creative thought.

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In the trade off between quality and sustainability, the Project Management has chosen

the former, given the Project‟s emphasis on excellence in outputs. High honoraria paid by

IDLO/EBRD ensured quality of service delivery by national experts and facilitators but

negatively contributed to sustainability.58 The scale of honoraria and other expenses

influenced perceptions that were formed around the Project, such as the perception that

IDLO/ EBRD trainings make it difficult for other projects to attract and retain good

national trainers.59

In a bigger picture, the question is whether the Project, alongside similar projects in

Kyrgyzstan, contributes to the situation in which state responsibility for the education

and upkeep of the judiciary is being outsourced to international agencies. The state can

become too complacent that some of its functions are willingly assumed by external

actors who place few demands upon them. It is worth considering whether a „give-and-

take‟ approach which also requires the beneficiary institutions to contribute, can be more

effective in fostering development and change. For instance, the team noted that whilst

the interviewed experts among judges highly praised the ToT they received from IDLO/

EBRD, they were hesitant on whether they would be able and willing to deliver the same

training without IDLO/ EBRD support.

Sustainability is also influenced by the fact that there are few state resources dedicated

to judicial training, but international resources are massively increasing and are filling the

gap. Expectations may have been created that IDLO/ EBRD would continue to provide

judicial assistance in Kyrgyzstan with high-quality trainings satisfying the growing

demand. How these will be managed in the future, if the situation alters, remains

unclear. The issue is partly attributed to a culture of expectancy that outputs would be

provided (by the state or internationals) and partly to a lack of small, realistic steps that

would encourage more responsibility of the beneficiaries.

Recommendations for sustainability

Encourage the judiciary to take greater responsibility for their development as a

professional group so that training is carried out not only by international

providers, but also through their own efforts. Judges that received training as

experts and facilitators should be stimulated to contribute further. This can

engrain a culture of responsibility.

Attendance or delivery of training can be more systematically linked to a system

of credits or other career incentives for judges in their promotions.

4.5 Linkages and Partnerships

4.5.1 International support in the justice system capacity development

58

Comments on IDLO/EBRD high honoraria were made on several occasions by different interviewees.

According to the Project Manager, the fees budgeted in Phase II were $ 500 per day for 3 days of the seminar (all inclusive, i.e. preparation, handbook drafting, actual classroom training and reporting). All the responsibilities were specified in the “Authors Contract” which were signed with every trainer. The Project Management was aware that GTZ in particular sees this as a problem, as their own fees are around $50. The situation was brought to the attention of the Project‟s Internal Steering Committee (ISC) by the GTZ when it first arose in May 2006 (see the ISC Minutes, June 21 2006). The decision to pay the compensation as indicated was the result of deliberation by the ISC, and was fully supported by the then IDLO Director of Training and Technical Assistance and the IDLO manager in charge of this Project. The reasoning was that „the academic content and quality of our training has precedence over other considerations.‟ This was also the position of EBRD.

59

The issue of fees and their negative effects upon others was also raised by GTZ, GTZ EC and formerly ARD

Checchi.

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The operating environment has changed since 2005 when the Project was the major

actor in judicial capacity building. Since then, this sphere became more popular with

donors and experienced an influx of funds and service providers who started to fill

strategic niches. IDLO/ EBRD have to now navigate among these actors and influences.

Since 1993, when the first USAID „Central European and Eurasian Law Initiative‟ was

launched in Kyrgyzstan, there has been a variety of international assistance programmes

in the area of judicial development. The project directly preceding the IDLO/ EBRD one

was the USAID „Assistance Programme in Establishing the Legal and Institutional

Framework Necessary to Support a Market-Based Economy in the Kyrgyz Republic and

Tajikistan‟ implemented by ARD/Checchi between August 2005 and May 2006. It

delivered activities such as trainings for lawyers and judges in commercial law,

dissemination of judicial opinions and legal information, support to the establishment of

an International Court of Arbitration and technical assistance to institutional reforms.

A USAID-funded Threshold Programme of the US Millennium Challenge Corporation

(MCC) started in 2008, implemented by DPK Consulting. This programme is now, for its

budget ($16 million) and scope of activities, the leading programme in the area of anti-

corruption and rule of law in Kyrgyzstan. Within the framework of the MCC Programme, a

judicial reform assistance project was launched. The project consists of: (1) Personnel

Management (support to the NCOJA in the selection and discipline of judges and court

administration); (2) Judicial Independence (assistance to the CoJ); (3) Commercial

Justice (technical assistance to commercial law reforms and enforcement of judgments

on commercial cases; partially built upon the results of the previous USAID/ARD Checchi

Project); and (4) Court Computerization, for which $2 million out of the $5 million project

budget are earmarked. DPK Consulting works closely with the JTC to support its

institutional development and curriculum.

GTZ has supported justice reform in the Kyrgyz Republic since 2002. One project forms

part of the programme “Legal Reform and Reform of the Judiciary in Central Asia”. Since

2007, it includes a training programme for newly appointed judges and one for bailiffs.

The training for judges mainly focuses on civil law, criminal and civil procedures, and

judicial opinion writing. Further trainings are offered to courts‟ chairs and staff in ethics,

budget drafting and disciplinary procedures. GTZ is involved in legal education of the

society through televised trial shows.

The European Commission expanded its funding for the justice sector in Kyrgyzstan. It

currently funds the „Support to Judicial Reform‟ project implemented by GTZ. The Project

started in November 2008 with a budget of 2.3 million Euro for the duration of 18

months. It will be dealing with a conceptual level of judicial reform and the advancement

of the penitentiary system. It is also engaging with the legal draftsman department of the

Ministry of Justice and supporting enforcement of court decisions. It also has 3 million

Euro for assistance on improvement of prison conditions (2 million to refurbish the prison

and 1 million for NGOs, this component is implemented by UNODC) and on long-term

imprisonment (implemented by OSCE). Geographically, the focus is on the country‟s

periphery.

A number of other organizations such as the OSCE, the Danish Institute of Human Rights,

the Open Society Institute (Soros Foundation), the Swiss Development and Cooperation

Office (SDC), UNDP and the World Bank have developed programmes in the legal and

justice fields in cooperation with the government and NGOs.

International training and technical assistance providers to the judiciary have made

efforts to develop a systematic approach to the needs of the beneficiaries by meeting

periodically in Bishkek. One observer reported that, since five years the international

actors finally have established a practice of meeting more regularly to strengthen their

cooperation. This practice has reduced risks of duplicating activities. Many contacts and

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meetings took place in which the IDLO/EBRD Project management participated. A

multiparty meeting took place in December 2008, where a division of labor among donors

for putting in place the training programme for candidate judges was agreed. However,

according the interviewed representatives of such organizations, effective donor

coordination has some way to go.

Such coordination has largely relied on the initiative of the most active agencies, e.g.

DPK Consulting, and has been often limited to information sharing on technical matters,

with strategic decisions being taken mostly at the headquarters level. DPK Consulting is

also engaged in curriculum development and institutional support for the JTC, and noted

a duplication of activities with IDLO/EBRD in this respect.60

Recommendations for Linkages and Partnerships

Ensure a collaborative approach through a relationship building strategy with

other organizations operating in the field of legal reform (beyond training

provision);

Devote further efforts to increase the level of strategic consultation and

transparency, thus maximizing the cumulative impact of donor endeavors;

Work closely with DPK Consulting to avoid an overlap in assessment of JTC

curriculum needs and strategic plan refinement;

Advocate, together with other donors and agencies, for access to court rulings

through an improved database system and for a transparent assessment of

judicial competence.

4.5.2 IDLO/EBRD Project in the National and International Context

The institutional collaboration with the Supreme Court and the Council of Judges

proceeded very positively and enabled development of new ideas and initiatives.

However, linkages at the political level were not proactively sought. The Ministry of

Justice was involved at the onset and its representative was included in the Steering

Committee,61 but it last met in summer 2008.62 The team did not find evidence of

linkages with the parliament: an interview with Alisher Sobirov,63 a member of the

Parliament and former Chair of the parliamentary committee on legal affairs and judicial

reform (until December 2007), revealed no knowledge of IDLO/ EBRD Project.

Presently, IDLO/ EBRD is perceived by key national and international actors as a

technical training provider rather than a strategic leader in judicial reform process. The

team did not find the Project strategically positioned to influence wider policy

development within institutions, in which a stronger and a more inclusive Steering

Committee could perhaps have played a bigger role. When larger political and legal

changes happened in 2007 and 2008, modifications in the design and in relations with

stakeholders occurred to a limited remit. A more proactive intervention could have

opened new avenues for the Project, capitalizing on the momentum the change offered.

From the Project Management perspective, this was not part of their brief as per the

Action Plan.

The team feels that some emerging opportunities for the organization were missed, as

other donors and implementers were better positioned to grasp them. For example, had

60 Interview with Jamilya Nurumbetova and Daniel Deja, DPK Consulting,Bishkek, February 2009. 61 The Steering Committee consisted of 3 parties: IDLO Programme Manager, Head of the Legal Transition and Knowledge Management Team at EBRD and a representative of the Ministry of Justice. 62 An interview with the former Steering Committee member from the Ministry of Justice could not be organised during the mission. 63 House of Parliament, Bishkek, February 2009.

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IDLO/EBRD had more of a strategic vision, it could have benefited from the funding that

vastly increased in 2008. The explanation might be that the organization lacked

communication, partnerships and human resources experienced in international

development to see the openings in the field.

Recommendations for linkages at national level

Dedicate greater attention to building cooperation with the legislative and

executive branches of power in the Kyrgyz Republic in addition to the engagement

with the judiciary. Linkages with major political stakeholders in Kyrgyzstan in the

government and in parliament would foster a higher degree of collaboration by the

authorities.

Keep up with policy developments, as training requires continuous monitoring of

legislative and political change.

Establish a representative Steering Committee with composition of membership

beyond the judiciary, and clarify its function.

4.5.3 Communication and Outreach

The IDLO/ EBRD Project made steps towards public outreach by organizing a regional

conference in Hyatt hotel in 200664, giving interviews to the media and publishing press

releases either directly or through the Supreme Court.65 The Project Management

appeared on a TV breakfast show. The IDLO website contains several articles and press

releases dating 2006 and 2007, but not from 2008 onwards, nor does it have the

schedule of past and planned courses, and there is no information in Russian apart from

a link to the bench book.

Based on the interviews with the main stakeholders in the judicial reform, the evaluation

findings are that visibility of the IDLO/ EBRD Project outside of the judiciary and other

international training providers is not very high. The International Crisis Group Report

does not mention the IDLO/EBRD Project, although it outlines major initiatives

undertaken by other assistance providers (GTZ, OSCE, USAID-funded DPK Consulting,

Open Society Institute).66 This was because national and international interlocutors

interviewed by the ICG for the report did not mention it to the researcher.67 UNDP which

has a project in legal empowerment, was not familiar with it,68 and the same applies to

the OSCE Office in Bishkek.69

The team‟s conclusion is that networking outside immediate Project areas was insufficient

for potential synergy. Distribution of Project information and communication tools were

not developed to a full potential. Visibility appears to have followed events rather than

had a deliberate strategy behind it.

64 The Conference “Towards a regional strategy for improving judiciaries – increasing judicial capacity in Central Asia” was organized on 10 April 2006 by EBRD /IDLO in collaboration with the Judicial Training Centre in Bishkek in the Hyatt Regency Hotel and had more visibility. Judges and representatives of the Judicial Training Centres from Kyrgyzstan, Kazakhstan, Mongolia, Tajikistan and Uzbekistan took part. The conference was followed by at least two articles in the national press commenting on its purpose and quoting the Project Management‟s statements. 65 See list of consulted documents in Annex II. 66 See the International Crisis Group Report “Kyrgyzstan: the Challenge of Judicial Reform”, Asia Report No. 150, 2008. 67 Interview with Saniya Sagnaeva, the ICG report author, February 2009, Bishkek. 68 Interview with Alexandr Koshkarev, UNDP, February 2009, Bishkek. 69 Interview with Lilian Darii, OSCE Deputy Head of Office, February 2009, Bishkek.

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Recommendations for communication and outreach

Develop a communication plan.

Make the IDLO website an updated and interactive tool, providing sufficient

visibility for the Project.

Encourage the judiciary to work upon improving their public image by making the

judiciary aware that changing public perceptions of them as a professional group

is also their responsibility, as well as help them to work with the media, politicians

and civil society more effectively.

Establish an IDLO Alumni Association. IDLO has been able, through its network of

Alumni Associations throughout the world, not only to foster visibility of its

activities, but also sustain them in the long run.

4.5.4 Prospective Avenues for Future Design

Should the Project keep the same goal of „business enabling environment‟, then an

additional objective of contributing to empowerment of business people and

strengthening the capacity of the attorney‟s community can be included. This approach

would be more in line with other technical assistance providers (i.e. GTZ and, formerly,

ARD Checchi) who attempt to tackle the legal culture and community outside the

judiciary in addition to training. This may cover, as an example, commercial law training

programmes for lawyers, a technical assistance programme for the BAR Association,

publication of legal journals dealing with business matters, radio/TV programmes or press

columns dedicated to free legal counseling on economic cases.

One of the weaknesses of the justice sector in the Kyrgyz Republic is the

underdevelopment of a legal debate either through the mainstream media channels or

through professional legal journals as a means for holding the judiciary more accountable

for its decision-making. The team identified this as being a niche for future development

assistance, which remains unexplored by other donors.

Currently, these „checks and balances‟ are insufficient in the country because the legal

education of people is significantly low. Without such pressures, the risk is that the

beneficiary judges would feel too comfortable since few demands were placed upon them

within the context of the Project. Another crucial reason for tackling the legal education

of the society is the pursuance of legal compliance by businesses and a more responsible

conduct of the latter to make the practice of offering undue incentives to judges by

litigants unacceptable. This need and the request that donors give it more emphasis was

stressed constantly by most of the interviewees, not only judges.

Further options for future project programming

Given a lack of specialized legal resources on commercial matters and debate in

the country, assess the feasibility of sponsoring a commercial law journal, such as

the one which was developed by ARD Checchi with the BAR Association, and for

which there is still a high demand among judges and attorneys.

Consider launching publications by sponsoring competitions on essays or articles

on legal issues which are of high interest. Journals comparing rulings on similar

cases could be useful and have a preventative effect on unfair judgments.

Likewise, commentaries on new laws may contribute to a more uniform

interpretation of the laws.

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5. EVALUATION CONCLUSIONS AND LESSONS

The IDLO/EBRD Project was a largely well-executed and well-resourced operation, but

narrowly designed and interpreted in relation to its overarching goal of enabling the

Kyrgyz business environment. It met a substantial demand in commercial law education

for the judiciary, which has been mostly neglected by the state, by satisfying an appetite

for new knowledge and clarifying the existing laws. It gave an impulse to a more uniform

application of the applicable provisions which has already started to contribute to more

predictable rulings. The Project also enabled the judges to gain a sense of belonging to a

united professional category, increased nation-wide interaction between them, and

fostered a better understanding by the Supreme Court leadership of the needs and

capacities of the lower courts.

The Project has demonstrated strength in knowledge transfer and in development of a

productive collaboration with the Supreme Court and the judiciary more broadly. Training

already started stimulating wider and increased competence. Still, provision of high-

quality trainings without responsibility and accountability of the beneficiary judges for

their performance can deliver limited outcomes. Efforts in training are more effective

when they are reinforced by other measures targeting monitoring of outcomes and an

incentive system.

The Project has been most successful in the areas where execution was under its direct

control, such as training delivery, apprenticeships and the bench book. The team

identified some points for improvement in these components, but they are fairly minor

against the scale of the overall good performance. However, although an institutional

partnership with the Supreme Court is no doubt a major achievement, the side of the

Project which has to do with empowerment, relationship-building and communication

performed less well.

The Project needs to think through its identity, e.g. whether it remains an exemplary

training provider, - and then it has to examine how training can be further improved

through increased monitoring of outcomes, - or whether it seeks to position itself on a

higher level of intervention to foster a wider judicial and legal change in the country.

Thus, it faces a strategic choice on whether it should concentrate mostly on the inputs

under its direct control and leave other tasks to other international actors who have

emerged, or continue to develop both sides of the Project.

Lastly, interests of a wider group of stakeholders and impacts of training on the business

environment have been insufficiently thought through at the design and implementation

stages. This weakened the Project‟s linkages with the users of the justice system as a

whole.

The key lessons for programming in Kyrgyzstan and in the region are:

Capacity building and training delivery are different types of activity and require

different skills and approaches.

Training programmes need to have a solid mechanism of verification of whether

they indeed lead to improvements.

Knowledge, skills and standards are interrelated sides of judicial competence and

cannot be viewed in isolation, but comprise an integrated package.

Validity of perspectives of stakeholders in the society outside of the judiciary has

to be acknowledged and respected, even when such perspectives are not accepted

at face value.

Monitoring of outcomes needs to be tied up with judicial reform objectives and the

evolution of a wider political and institutional context.

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ANNEX I: Evaluation Terms of Reference

Evaluation of Commercial Law

Judicial Capacity Building Project

in Kyrgyz Republic

I. Project Background

Kyrgyzstan is one of five independent states of the former Soviet Union that make up the

region of Central Asia. Following its independence from the Soviet Union in 1991,

Kyrgyzstan has focused on building sustainable democratic institutions and becoming a

regional center for commerce and investment. Following the Tulip Revolution of 2005,

however, progress has been slowed by continuing instability.

In terms of the judicial system, while many Kyrgyz laws have been modernized, more

work is required to ensure that the legislation is fully implemented. There is still no

effective mechanism to prepare new judges for their duties. There is also a need to build

the professional capacity of sitting judges, as well as the capacity of the institutions

mandated to support this.

To assist the Kyrgyz Government with addressing these problems, the European Bank for

Reconstruction and Development (EBRD) is collaborating with IDLO to implement a

judicial capacity building project with the following objectives:70

To enhance the competence of judges in commercial law in order to ensure

greater efficacy, uniformity and predictability of court rulings;

To assist in the creation of a business enabling environment in Kyrgyzstan; and

To help build lasting institutions which are capable of providing effective capacity

building programs for the judiciary.

The core activities include:

Institutional support to strengthen the Kyrgyz Judicial Training Center;

Training Kyrgyz judges who deal with commercial and civil-commercial matters;

An apprenticeship of 24 Kyrgyz judges with the Supreme Court of Kazakhstan and

commercial courts of Russian Federation;

Developing and equipping a commercial law library in the Supreme Court; and

Preparing and disseminating a bench book relating to key pieces of the

commercial law framework.

The project beneficiaries are approximately 270 Kyrgyz judges that deal with commercial

and civil-commercial matters, and a select group of bailiffs, tax officials, and court

consultants.

The logic model in Annex 1 provides an overview of the project design.

In preparation for the project, in May 2005 a survey was administered to 194 judges in

Kyrgyzstan. The survey produced: a professional profile of the respondents; an

indication of their knowledge of commercial law; an assessment of judicial skills and

abilities; an overview of training needs; and their perceptions of the functioning of the

judicial system. These data will serve as the baseline for a follow-up questionnaire under

the proposed evaluation.

II. Evaluation Objectives

The purpose of the evaluation is to:

Document the results of the project in Kyrgyzstan;

70 The project has three phases: Phase I: January to October 2005; Phase II: March 2006 to June 2008; Phase III: September 2008 to February 2009 (6 mos).

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Make recommendations to guide the implementation of a possible Phase IV

project; and

Identify lessons to inform the design of similar projects in other former CIS

countries71.

III. Scope of the Evaluation

The evaluation will cover all phases of the project from 2005 up to February 2009.

IV. Users of the Evaluation Results

The main users of the evaluation results will be: EBRD and IDLO project staff and

management; project implementing partners and beneficiaries; and the project donors.

V. Proposed Key Issues (to be read in conjunction with the project logic model,

Annex 1)

Relevance

1. Is the project based on an adequate analysis of need?

2. Are the project objectives valid and in line with the relevant Kyrgyz legal reform

objectives?

2.1. Are they appropriate to the country and cultural context?

3. Are the activities and outputs consistent with the intended outcomes of the project?

3.1. Are project outputs mutually re-enforcing and adequately linked?

4. Has the project responded flexibly to changing circumstances over time?

5. Is the intervention consistent with IDLO‟s and EBRD‟s mandate and strategic

priorities?

Effectiveness

6. To what extent has the project delivered the planned outputs? If not, why not?

What unplanned outputs has it delivered?

7. Is the project achieving its objectives (intended outcomes)?

8. To what extent is training contributing to the intended outcomes?

8.1. Have individual knowledge and skills increased?

8.2. Is performance in the workplace changing?

8.3. To what extent has IDLO training influenced the capacity of the

target institutions?

8.4. To what extent has IDLO training enabled judges to resist pressure

by making better, well-informed decisions based on a solid

understanding of the law?

9. Is the project achieving progress within a reasonable timeframe?

10. Are gender issues being adequately taken into account?

Efficiency

10. Is the project delivering its outputs and outcomes in an efficient manner in the

Kyrgyzstan context (results against costs)?

11. Were project resources appropriately allocated in order to obtain the expected

results?

Impact72

13. What are the positive and negative, intended and unintended, short-term and

lasting results?73

71 As the first judicial capacity building project to be supported by both EBRD and IDLO in the region, it is considered a „pilot‟ for possible replication in other countries. 72 Due to the project design and timing of the evaluation, this exercise will not attempt to measure the „impact‟ of the project; rather, it will focus on whether the immediate results are contributing to the desired impact.

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13.1. What changes are happening, or are likely to happen as a result of

the project? What difference have the activities made to the

beneficiaries and other stakeholders?

13.2. How is the project already affecting the broader society, and what

are the likely future impacts?

Sustainability

14. Are the necessary steps being taken to build ownership of the project and

sustainable outcomes?

14.1. To what degree are the project outcomes and outputs being

integrated into local processes?

14.2. Will the institutions being developed and supported survive the

project? Are they being used?

15. Will the resources necessary for continued implementation of project activities be

forthcoming from national or international sources?

Linkages

17. Are efforts aimed at promoting individual changes in behavior, skills and attitudes

linked with supporting efforts at the institutional and political levels?

18. Does the project adequately link up with and complement other related activities in

Kyrgyzstan and in the region?

19. Did the project encourage regional collaboration, to the benefit of the Kyrgyz legal

system?

VI. Evaluation Methodology

Phase 1. Administer Project Outcome Questionnaire to Trained Judges (Nov-Dec

08)

All 270 judges trained under the project will come together for a series of workshops

from 10 November to 10 December 2008. During this training, an evaluation

questionnaire will be administered to determine the cumulative benefits of the project

training74. The results will then be compared to the findings of a survey administered to

194 judges in May 2005.

The overall findings from these questionnaires will be taken into account when preparing

the evaluation mission (in particular the design of focus group and key informant

interviews).

Phase 2. Review of Secondary Information (Jan 09)

During this phase, IDLO will make all relevant background and project documents (see

Annex 2) available to the evaluation team by 16 January. This includes the results of the

various training evaluations administered since the launch of the project (see Annex 3 for

complete list of questionnaires administered), and the results of the project outcome

questionnaire. IDLO will also provide the evaluation team leader with a project log frame

prior to the mission.

Based on this review, the evaluation team leader will propose refinements to the

evaluation TORs (to be discussed with the IDLO Head of M&E). She will finalize the key

informants and focus groups to be interviewed, and design the related interview tools. In

collaboration with the IDLO team in Bishkek, the evaluation team leader will propose an

interview schedule and travel program no later than 30 January 2009.

73 The analysis should also factor in the positive and negative impact of relevant factors external to the project (political situation, etc.) 74

The questionnaire will take into consideration the “outcome” information already collected by IDLO through a

questionnaire at the end of phase II in May 2008.

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IDLO Bishkek, in consultation with the evaluation team leader, will make all preliminary

arrangements for focus group and key informant interviews, and any related travel to the

provinces.

The Project Manager will request the project stakeholders (the project counterparts,

EBRD and IDLO) to collaborate with preparing for the evaluation. This includes:

providing input to the evaluation TORs; making information available to the evaluation

team; facilitating the set up of key informant and focus group meetings; hosting the

evaluation briefing and debriefing; and reviewing the final evaluation report.

Phase 3. In-country evaluation mission (Feb-Mar 09)

a. Inception report

Upon arrival in the country, the evaluation team will assess the information available and

propose any necessary revisions to the evaluation issues and methodologies outlined in

the TOR. Any changes to the TORs will be captured in a short inception report outlining

the reasons, to be incorporated into the final evaluation report. The final TOR will then be

presented to stakeholders at an evaluation briefing session during the first week of the

mission (tentatively scheduled for 16 February).

b. Field work

1. Key informant and focus group interviews

The evaluation team will develop interview questions, and hold key informant and focus

group75 interviews, covering but not limited to: the judiciary, Ministry of Justice, project

staff, legal professionals, business and banking community, donor representatives, and

other actors supporting judicial reform (see Annex 4 for tentative list of key informants

and possible focus groups).

Consideration will also be given to interviewing or administering a complementary

questionnaire to the judges of the Economic and Civic Panels of the Supreme Court, as

the final reviewers of all economic litigation in Kyrgyzstan.

2. Data Analysis

The evaluation team will analyze:

judicial management and administrative data (depending on availability);

the results of project participant surveys and questionnaires (2005 needs

assessment, course and activity evaluations, and end-of-course cycle

evaluation);

the results of the 2008 project outcome questionnaire; and

relevant data collected on and analyses of judicial sector performance by other

actors working on judicial reform.

The evaluation team will collect information in Bishkek, Osh and Karakol.76 IDLO Bishkek

will provide the team with administrative and interpretation support.

c. Debriefing of stakeholders prior to departure from Bishkek

An Aide-Mémoire (maximum 5 pages) will be prepared by the evaluation team at the end

of the mission, summarizing the team‟s tentative findings, conclusions and

recommendations (see Annex 5 for proposed format). It will be translated and presented

at a debriefing of all project stakeholders with a view to obtaining feedback. Based on

input from the meeting, the Aide Memoire will be revised and provided to IDLO Bishkek

and the Head of M&E prior to departure from the country.

75 Focus groups of trained judges can be arranged based on lists supplied by IDLO. This involves requesting the head of the relevant Kyrgyz institution to contact past participants, for which they require at least 7 days advance notice. 76 A tentative schedule of interviews, focus groups and travel to any locations outside of Bishkek should be prepared in full consultation with the evaluation team leader prior to travel to Kyrgyzstan.

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Phase 4. Prepare evaluation report and recommendations (Mar 09)

The evaluation report (maximum 40 pages, excluding annexes) should contain the

following sections:

I. Executive Summary (1-2 pp)

II. Evaluation purpose, methodology and limitations

III. History and overview of the project

IV. Analysis based on findings, conclusions, recommendations (to be organized

at the discretion of the team leader)

V. Lessons/recommendations for similar projects in other countries of the

former CIS Annexes

VI. TORs; inception report; itinerary; map; data/documents reviewed; people

interviewed

VII. Work Plan and Schedule

The evaluation will be carried out according to the following timeframe:

Prepare project information and training

data

IDLO M&E Unit/IDLO

Project Team

By early January

Prepare project outcome questionnaire IDLO M&E Unit By early

November

Administer questionnaire to 270 judges IDLO Project team 10 November – 10

December

In-country mission Evaluation team 12 February – 3

March 2009

- In-country briefing Evaluation team & project

stakeholders

16th February

- In-country debriefing (with Aide

Memoire)

Evaluation team & project

stakeholders

2 March 2009

Deadline for draft report, for comments

by IDLO/EBRD

Evaluation team leader, in

consultation with team

members

17 March

Deadline for final report Evaluation team leader, in

consultation with team

members

30 March 2009

VIII. Evaluation Outputs

Aide Memoire (maximum 5 pp), which summarizes findings, conclusions and

recommendations (draft presented at in-country debriefing for discussion, final

version provided to IDLO prior to departure)

Evaluation Report (maximum 40 pp, excluding annexes)

IX. Evaluation team Composition

Evaluation expert

Legal expert (international team member)

Legal expert (Kyrgyz team member)

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Logic Model for Kyrgyz Judicial Capacity Building Project

Disseminate

benchbook

AC

TIV

ITIE

SO

UT

PU

TS

OU

TC

OM

ES

270 judges trained in

specific issues of

commercial law

Legislative database

accessible from court rooms

Legislators receive

feedback from judges on

commercial law

GO

AL

Create a business enabling environment

in Kyrgyzstan

Enchanced competence of judges in

commercial law

Benchbook on

commercial law

Provide

access from

400

computers to

legislative

database

Train Kyrgyz

judges on

commercial and

civil-commercial

matters

Functioning Judicial

Training Center

Apprentiship

program in

commercial

courts of

similar

jurisdiction

Prepare

benchbook

on key

pieces of

commercial

law

framework

Sustainable training institution capable of

continued judicial capacity building

SP

AN

OF

IN

FL

UE

NC

E

Train JTC

management

Advise

JTC

staff

Train

trainers

(judges)

SP

AN

OF

CO

NT

RO

L

Assess

needs

of JTC

Functioning commercial law

library at Supreme Court

Identify

and

procure

materials

Translate

benchbook

into Kyrgyz

Establish

contacts

with other

libraries

Train on

fundraising

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ANNEX II: List of Interviewees and Focus Group Participants

International Organizations

1. Nurlan Alymbaev, Component Leader Commercial Law, USAID-funded DPK

Consulting

2. Daniel Deja, Chief of Party, USAID Millennium Challenge Account

Threshold Program, Justice Component, USAID-funded DPK Consulting

3. Christoph von Harsdorf, GTZ-EC Project Team Leader

4. Gulsara Kenenbaeva, Project Officer, Business Advisory Service

Programme, Swiss Cooperation Office & EBRD

5. Alexandr Koshkarev, UNDP

6. Rustam Madaliev, project officer, “Legal and Judicial Reform support in

Central Asia”, GTZ

7. Tomoko Matsui, Community Empowerment, Participatory Development

JICA Expert Team

8. Jamilya Nurumbetova, Senior Legal Adviser, USAID/DPK Consulting

9. Saniya Sagnaeva, Senior Analyst, Central Asia, International Crisis Group

10. Lilian Darii, OSCE Deputy Head of Office

11. Yana Shumann, Legal Advisor and Coordinator of “Legal and Judicial

Reform support in Central Asia” project, GTZ

Institutions

12. Jyldyz Amandykova, staff member of the Judicial Training Center

13. Janyl Boronchieva, staff member of the Judicial Training Center

14. Aibek Davletov, Deputy Chairman Supreme Court

15.Djamasheva Feruza, Member of National Council of Judicial Affairs 16. Nazarova Gulya, staff member of the Judicial Training Center

17. Larisa Gutnichenko, Chair of the Council of Judges

18. Aida T. Jogoshtieva, Director, Judicial Training Centre

19. Elnura Karagulova, staff member of the Judicial Training Center

20. Ainura Karymbaeva, staff member of the Judicial Training Center

21. Kanat Kerezbekov, Rector of the Kyrgyzstan State Law Academy

22. Shamaral Maychiyev, Chairman of the International Arbitration Court of

Bishkek

23. Temirbek Nurmatov, staff member of the Judicial Training Center

24. Mairam Omorova, staff member of the Judicial Training Center

25. Adil Shaihitdinov, staff member of the Judicial Training Center

26. Alisher Sobirov, member of the Parliament and former Chair of the

parliamentary committee on legal affairs and judicial reform (until

December 2007)

27. Bakytbek Sydygaliev, Member of National Council of Judicial Affairs

28. Venera Toktobolotova, staff member of the Judicial Training Center

Judges

29. Ajibraimova, Judge in the Civil Panel, Supreme Court

30. Albanova Jumagul, judge, Bishkek City court

31. Alibaev Akmatali, Judge Osh Inter-District Economic court

32. Aidarbekova Chinara, Chuy Province Court

33. Aitbaeva Indira, Chuy Province Court

34. Asanova, Nurgul, judge, Bishkek

35. Davletbaeva, Madina, judge, Bishkek

36. Saralinova, Ainura, judge, Bishkek

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37. Akmatov, Bolotbek, Judge, Osh

38. Aknazarova, Chair Civil Panel of the Supreme Court, Judge

39. Assanova, Khalida, judge Yssyk-Kul,

40. Amanalieva, Judge in the Economic Panel, Supreme Court

41. Arapbaev Nurseit, Judge Osh

42. Dilfuza Boronbaeva, Judge and former Director of the JTC 43. Aibek Davletov, Deputy Chairman Supreme Court, Judge in the Economic

Panel

44. Onolbekov Damirbek, Judge Karakol

45. Chakanov Edilbek. Judge Jalalabad

46. Dilyara Mulukbayeva, Judge and former Director of the JTC

47. Gutnichenko Larisa, Judge of the Supreme Court

48. Gorshkovskaya, Irina, Bishkek city court

49. Kamchibekov, Sheraly Judge Osh

50. Kulmatova, Judge in the Civil Panel, Supreme Court

51. Azimjanov Madamin, Judge Karakol

52. Muhamedjanov, Judge in the Economic Panel

53. Melnikova, Margarita, judge, Bishkek

54. Mulukbayeva, Dilyara, Bishkek city court

55. Osmonaliev Kamil, Judge Osh

56. Rustambekova, Svetlana, Chuy city court

57. Ryskulova Aida, Judge Karakol

58. Rybalkina, Antonina, Judge, Bishkek city court

59. Sadykov, Judge in the Economic Panel, Supreme Court

60. Darkimbaev Talaibek, Judge Karakol

61. Djuldashev Talantbek, Judge Osh

62. Asanova Kalida Talipovna, Judge Karakol

63. Tokbaeva Ainash, Judge Osh

64. Toigonbaev Asanbek, judge, Tokmok court

65. 2 judges in Tyup district court

66. Umetalieva, Galina, Chuy province court

Lawyers

67. Mirbek Asylbekov, Lawyer, LARC, Tyup District Centre

68. Omurgul Balpanova, Lawyer, „Kalikova & Associates‟

69. Venera Boltobaeva, Lawyer and Education and Monitoring Specialist,

LARC.

70. Valentina and Grigorii Fedorovy, „Fedorovy‟ IP Protection Solicitors

71. Ahmatova Gulnara, Senior Lawyer, International Business Council

72. Nurlan Kenjebaev, Lawyer Osh

73. Talantbek Kultaev, Lawyer Osh

74. Jenysh Magdimov, Lawyer, Karakol

75. Mirlan, Company lawyer in Aktash construction company

76. Bahodyr Rassahodjaev, Lawyer

77. Nurbek N. Sabirov, Lawyer, „Kalikova & Associates‟

78. Vladimir Samarsky, Lawyer and Director of Samarsky Counsulting Agency

79. Nurlan, lawyer at LARC HQ, Bishkek

Other

80. Head of Research Department at the Supreme Court

81. Olga Bikhmuhamedova, Librarian at the Commercial Law Library

82. Uluk Kydyrbaev, Executive Director Bishkek Business Club and Chamber of

Tax Consultants

83. Nurlan Sadyrov, Director Constitutional Policy Institute

84. Irina Stepkicheva, Journalist, Legal Affairs Column, Slovo Kyrgyzstana

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85. Tatiana Vedeneva, External Relations Specialist, LARC

86. Chair of Companies‟ Shares Registrar Office, Osh

IDLO/EBRD

87. Alexandrine Brassart, Head of Project Unit, Global Finance Center, IDLO

Rome

88. Azizbek Dosmambetov, Legal Coordinator IDLO Bishkek

89. Nurlan Duisheev, Project Officer, IDLO Bishkek

90. Sandra Klavins, Director of Finance, IDLO Rome

91. Akyl Mamykeev, Finance Officer, IDLO Bishkek

92. Margarita Milikh, Project Officer, IDLO Rome

93. Kenji Nakazawa, Head of EBRD Bishkek Office

94. Michel Nussbaumer, Head of Legal Transition and Knowledge Management

Team, EBRD, London

95. Irina Rabinovich, Project Manager, IDLO Rome

96. Pekka Saavalainen, Chief Operating Officer and Managing Director, IDLO

Rome

97. Darlene Tymo, Manager, Evaluation Unit, IDLO Rome

98. Giulio Zanetti, Director for Strategic Networks (& IDLO trainer of trainers)

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ANNEX III: List of Documents Consulted

Project Documents:

Report on the Training Outcomes of the EBRD/IDLO Project, Vitosha

Research, December 2008

Analytical Report: Judicial Training Needs Assessment Survey, Kyrgyzstan,

Vitosha Research, May 2005

Action Plan for Commercial Law Judicial Capacity Building Project in the

Kyrgyz Republic, IDLO/EBRD, September 2005

Contract for Kyrgyz Republic: EBRD Commercial Law Judicial Capacity Building

- Phase II - IDLO/EBRD, 31 July 2006

Contract for Kyrgyz Republic: EBRD Commercial Law Judicial Capacity Building

- Phase III - Supplementary Action Plan, IDLO/EBRD, 16 July 2008

CLJCB Phase I Project Report and Phase II Project Reports 2 – 8

Quarterly Project Implementation Reports

Four project reports produced under Activity I/Phase II, two reports produced

under Activity I/Phase III (topics: Strategic Capacity Building, Financial

Management, Proposal writing, Budgeting, curriculum Development, Building

Capacity in the Faculty, Managing People). Phase II experts: Pasquale

Ferraro; Sergei Zamaschikov; Tetyana Fuley; Pasquale Ferarro. Phase III

experts: Sergei Zamaschikov; Tetyana Fuley.

Judicial training database 1998-2006 (prepared by Tetyana Fuley)

Data on usage of judicial commercial law library (IDLO Bishkek Office)

Summary of IDLO training evaluations and end of project questionnaire

results, May 2008 (IDLO Evaluation Unit)

USAID Memorandum addressed to EBRD/Dan Berg of January 12, 2005.

Other Documents:

Kyrgyzstan: the Challenge of Judicial Reform, ICG, Asia Report # 150, 10

April 2008

Judicial Reform Index for Kyrgyzstan, ABA/CEELI, June 2003

Functional Analysis of the Kyrgyz Republic Judicial System, USAID/DPK,

October 2008

Report on Assistance in Establishing the Legal and Institutional Framework

Necessary to Support a Market-based Economy, Kyrgyzstan and Tajikistan,

USAID/Checchi, June 2006

Doing Business Reports, World Bank, 2005- 2008

Transparency International country rankings, 2005-2008

Davos Forum Index on Judicial Independence (see Davos website)

Kyrgyz Investment Council Annual Report (2007 – in English on EBRD

website, in Russian on IC website)

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“Consistency of Court Judgment” quarterly indicators for 2004-08,

International Business Council

Resolutions of the IVth Congress of Kyrgyz Judges (in Russian), April 2008

Basic data on judges in 2005 and 2008 (total #, gender breakdown)

World Bank Report “Doing Business 2009”

Life in Transition, A Survey of People‟s Experiences and Attitudes, EBRD 2007

Presidential Decree no. 179

President Bakiyev‟s speech at the opening of the 6th Congress of Judges and

the Congress Resolution, adopted on 25 April 2008, available at

http://www.tazar.kg/news.php?i=8599 and 2007 Constitution of Kyrgyz

Republic.

Press and Promotional Materials

Presentation of the EBRD/IDLO Project on „Judicial Capacity Building‟ and

Press Release, 17 March 2006, Project Briefing.

Conference - “Towards a regional strategy for improving judiciaries –

increasing judicial capacity in Central Asia”, 4 April 2006.

Online articles in AkiPress on the Conference, 4 April 2006.

Conference coverage in Slovo Kyrgyzstana, 6 April 2006.

The Times of Central Asia newspaper article, 12 April 2006.

The Times of Central Asia newspaper article, 26 February 2007.

Information Agency Kabar online article, 25 June 2007.

Newspaper article on the Library opening, source and date unknown.

A review on EBRD work on empowering the Kyrgyz Judiciary, source and date

unknown.

Strengthening International Collaboration, Press release by the Supreme

Court, date unknown.

USAID Millennium Program Challenge Threshold Bulletin

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ANNEX IV: Library Users Survey

The survey ran for 3 weeks from 9 to 27 February 2009. 36 questionnaires were

returned. The results are:

How many times have you used the library?

Once – 1

Twice – 6

More than twice – 29

You looked for information on? (some respondents gave more than one

answer)

Commercial law, in general – 10

Litigation – 6

Bankruptcy – 14

Other - 24

Did you find what you were looking for?

Yes – 28

Not quite – 8

You are a:

Judge – 6

Lawyer – 25

Law Student – 2

Used the library out of general interest – 3

Did you find the library well equipped?

Yes – 12

No – 20

Not sure – 4

Did you find the library staff helpful?

Yes – 36

Missing resources identified by interviewees are:

• Legal documents one cannot find in Toktom, especially in Kyrgyz

legislation

• Internet resources

• Online library catalogue

• Legal literature

• Commentaries to codes

• Systematic updating with Russian legal books and periodicals

• Literature on land law

• Printer, Xerox machine and a scanner

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ANNEX V: Survey of Business Community

Conducted by BISHKEK BUSINESS CLUB & EVALUATION TEAM

Introduction

The questionnaire was designed in English by the Team Leader during the field

mission, with inputs from an English-speaking team member. The Team leader

translated the questionnaire into Russian and solicited the input from the other

team member. Two questions were added by the Bishkek Business Club, which

also added a request to specify the type and size of enterprises surveyed. The

questionnaires were distributed by the Bishkek Business Club among the

members of the National Alliance of Business Associations and members of the

Bishkek Business Club, 23 business associations altogether. The number of

contacted businesses was approximately 200. 23 questionnaires in Russian and 2

in English were returned. The responses were collected and completed

questionnaires were sent electronically to the Team Leader who manually

processed and analyzed them.

25 questionnaires were returned.

Type of enterprises surveyed: legal services, micro crediting, bakery, soft

drinks production & distribution, tourism, trade, shuttle trade, notary, event

management and services, financial services, law firm, sewing business, trade,

loans and business consultancy, legal services, legal services, interpreting

service, private hotel, insurance company, service.

Size of enterprises:

Small -8

Medium -15

Large -2

I. Did you have personal experience of dealing with courts on a

commercial law matter in the last 4 years?

1. No – 14

2. Once - 5

3. More than twice - 6

_________________________________________________________________

II. If yes, were you satisfied with the quality and speed of

judgments?

1. Very satisfied - 3

2. Fairly satisfied – 3

3. Not very satisfied -3

4. Very unsatisfied -2

Comments:

No case ever been ruled on merit: either money or external pressure

decides.

The ruling was formally correct, but justice was not done.

_________________________________________________________________

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III. Did people whom you know personally deal with courts on a

commercial law matter in the last 4 years?

1. No – 11

2. Once – 5

3. More than twice – 9

_________________________________________________________________

IV. If yes, were they satisfied with the quality and speed of

judgments?

1. Very satisfied - 2

2. Fairly satisfied – 6

3. Not very satisfied – 2

4. Very unsatisfied - 3

Comments:

Quality and speed of judgments depends on a case.

Practicing lawyers who represent clients tell us that state courts are run as

a well-established business operation [determined to get money out of

clients].

It is possible to win a case in court, but one has to spend a lot

[presumably, in terms of time and money].

Waste of time, money and energy exceeded satisfaction of winning the

case.

Courts not always take legal argumentation seriously into account.

Decisions are not always made correctly, i.e. according to the existing

legislation [have no legal basis].

_________________________________________________________________

V. Have you or people whom you personally know ever used other

ways of access to justice?

1. arbitration courts – 6

2. negotiations through lawyers/ middlemen – 17

3. aksakal courts - 1

4. other (please specify) -2

Comments:

Only settle disputes through personal channels; in the past I got together

with guys, we talked and settled.

The use of personal connections in law-enforcement bodies and

inspectorates is the most effective, quick and reliable way to solve

problems in business.

I managed to settle my dispute through lawyers‟ mediation without going

to court.

There is a lot of foot dragging, there are instances of extraction of bribes

for favorable rulings.

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VI. If you have a dispute, how likely you are to go to a state court?

1. Very likely - 6

2. Fairly likely – 7

3. Only if I completely exhaust others means of settlement – 12

4. I‟d better accept a loss than go to court – 0

Comments:

Generally, litigation takes a lot of time and requires money which exceeds

the gains of winning a trial. I prefer to settle outside of a court.

Not all types of disputes are allowed to be referred to arbitration courts, so

we have to take some cases to the state courts.

Court is not the most rational choice to solve business problems.

Going to court is troublesome, time consuming and I am not sure that a

ruling would be fair.

_________________________________________________________________

VII. Have the following roles of courts improved or worsened in the

last 4 years:

1. Judges behave on a more rule-based way:

- Improved – 2

- Worsened - 4

- No change – 15

Comments:

The judges‟ knowledge of law has improved, and their unfair rulings

cannot be explained away by ignorance (they are more conscious that

they rule unfairly).

The judges are always the same people, why should they start behaving

differently?

2. Judges provide clear judicial opinions:

- Improved – 2

- Worsened – 4

- No difference - 16

Comments:

Courts can make rulings without any real motivation, or motivated in such

way as to disguise an unfair ruling.

3. Judges overrule an illegal government or local authorities‟ actions:

- Improved - 2

- Worsened – 2

- No difference – 16

Comments:

It depends on the case

This is improbable without a bribe.

It is possible to get a ruling against a state body, but only if one knows

how….

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VIII. In which way is the situation generally changing?

1. Getting better – 3

2. Getting worse - 3

3. No big change – 18

Comments:

Judges now listen more to the high-powered figures from the executive

and become more susceptible to political pressure.

Judges act at will of the White House or to line their own pockets.

As far as I am aware, one still needs connections, money, a good lawyer,

much time and nerves to win a case.

_________________________________________________________________

IX. In your view, are courts accessible to the business community?

1. Yes – 11

2. No quite – 6

3. No – 3

Comments:

The changes in state tariffs made courts more accessible and filing a

lawsuit is not a problem.

Formally yes, but there are other barriers.

It is not hard to go to court, but this has to be balanced against time and

money to be spent

Accessible yes, but how effective?

Engaging in a lawsuit is hard, expensive and takes time.

A change in the law on court duties made it easier to file a case in court.

________________________________________________________________

X. With which cases you will go to a state court?

1. Dispute between an individual party and the state – 5

2. Dispute between two individual entrepreneurs – 14

3. Disputes between a private company and the state – 5 (especially tax

inspectorate)

4. Dispute between two private companies – 13

Comments:

I will never sue state bodies as it is useless and can be dangerous, but I

can go to court if this is a private business matter.

I won‟t dare to go against state bodies.

It depends on the nature of dispute.

________________________________________________________________

XI. In your view, is legislation sufficiently clear?

1. Yes – 5

2. No – 11

3. Don‟t know – 7

Comments:

Legislation was clear only after I spent plenty of time studying it.

I don‟t understand legislation and I need to hire a lawyer for that.

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_________________________________________________________________

XII. Whose interest the courts are most likely to protect?

1. Business community - 2

2. State bodies – 11

Comments:

The interests of the business community are protected only in case there

are material incentives on offer and there is no political pressure.

I have examples when courts ruled against state bodies‟ decisions, but this

was not in commercial law.

It all depends on who is better connected.

Can‟t tell for sure.

Both.

There is no precise answer. In some cases there is „behind the scenes‟

pressure from the state apparatus.

________________________________________________________________

XIII. Do you know of an example of case rulings which affect the

business community as a whole?

1. Yes - 1

2. No – 20

3. This is not likely to happen – 2

Comments:

This is impossible in our legal system as law is not based on precedents.

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ANNEX VI: Court Statistics

(OFFICIAL SOURCE - Supreme Court of Kyrgyzstan)

TYPES OF JUDICIAL CASES DECIDED BY THE SUPREME COURT

Cases Decided

year 2006 2007

criminal cases 1336 1493

civil cases 896 1091

economic cases 395 380

administrative cases 415 447

administrative judicial relationship cases 20 26

TOTAL 3062 3437 Rulings on economic cases

Rulings overturned 101 131

of 1st instance courts (Rayon, City and Economic Courts inter-district)

38 73

of 2nd instance courts (Appeal decisions) 42 34

of 2nd instance courts (Cassaton decisions) 21 24

Rulings modified 11 12

of 1st instance courts 6 5

of 2nd instance courts (Appeal decisions) 5 5

of 2nd instance courts (Cassation decisions) 0 2

Breakdown of types of cases 226 242

partial or non-fulfilment of contractual obligations 68 92

charges, fines and other formes of sanctions 13 7

annullement of illegal administrative acts 90 116

recognition of validity and invalidty of admin. acts 55 27

Rulings on economic cases by local courts as considered through the review of complaints

submitted to higher courts Rulings of 1st instance courts which were appealed

172 174

Confirmed 103 102

correlation, % 59.9% 58.6%

Decisions of 2nd instance courts which were appealed

73 69

confirmed 38 31

correlation, % 52.1% 44.9%

Decisions of cassation which were appealed 50 60

confirmed 23 29

correlation, % 46.0% 48.3%

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BREAKDOWN OF ECONOMIC CASES BY REGIONS FOR 2006-2007

Regional Court (Oblast)

Bishkek City

Talas region

Chui region Naryn region

Issyk-Kul region

Osh region Jalalabat

region Batken region

year 2006 2007 2006 2007 2006 2007 2006 2007 2006 2007 2006 2007 2006 2007 2006 2007

Rest at the beginning of year

161 178 2 10 93 135 8 9 15 22 67 32 35 26 9 13

Cases received within reporting period

1322 1346 225 226 794 877 92 178 344 493 692 686 476 562 269 209

Total 1483 1524 227 236 887 1012 100 187 359 515 759 718 511 588 278 222

Considered cases with verdict

704 693 165 154 427 445 57 115 182 221 425 392 313 283 108 117

Rejected 296 404 1 17 100 146 11 8 68 120 154 175 60 186 60 56

Sent to another court

11 11 0 4 8 5 2 3 1 2 2 0 5 2 4 5

Dropped 91 83 9 24 71 101 10 9 6 16 32 23 24 24 53 8

Remained wth consideration

203 203 42 27 146 183 11 19 80 101 114 89 83 76 40 31

Rest at the end of the year

178 130 10 10 135 132 9 33 22 55 32 39 26 17 13 5

(OFFICIAL SOURCE - Supreme Court of Kyrgyzstan)

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ANNEX VII: IDLO / EBRD Training Data

SUMMARY OF ALL IDLO TRAININGS IN KYRGYZSTAN, MAY 2006 - FEB 2009

Training Events Dates

# of Training

Days Description Participants # of Participants

# of Completed end-of-course Evaluations*

# of Invited Participa nts

1 Training of Trainers May-08 3 days judges 15 No data provided

by project team No list

provided

Training of Trainers Mar-08 3 days judges 15 No data provided

by project team 15 2 Bankruptcy 12 -20 Jun 06 3 days judges 90 84 87 3 Secured Transactions I 3 - 30 Sept 06 3 days judges 162 164 268 4 Secured Transactions II 17 Sept - 10 Oct 07 3 days

judges 179 180

5 Bailiff Training 11-13 Dec 06 3 days bailiffs 22 28 33 6 Real Estate Law 1- 25 April 07 3 days judges 203 224 218 7 Contracts Law 4 - 27 June 07 3 days judges 192 190 232 8 Accounting Law 17 Sept - 10 Oct 07 3 days

judges 179 161 182 9 Arbitration Law 3 – 17 Dec 07 3 days judges 66 65 68

10 Tax Law 3 – 17 Dec 07 3 days judges 66 66 68 11 Competition Law 15 - 28 Feb 08 3 days judges 62 62 280 12 Securities Law 15 - 28 Feb 08 3 days judges 70 47 280 13 Business Organizations 11 Feb - 14 Mar 08 3 days judges 204 216 280 14 Computer/Internet literacy 10 Nov - 10 Dec 08 1 day judges 270 196 270

15 Judicial Opinion/decision-writing 10 Nov - 10 Dec 08 2 days judges 270 202 270

16 **Administrative Process 09 - 14 Feb 09 3 days judges 90 83 90