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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)
1
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
6
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.
9
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.
11
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.
12
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.
13
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.
14
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”.
15
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.
16
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.
17
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
18
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.
19
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.
20
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.
21
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
22
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%).
23
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.
24
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.
25
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.
26
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.
27
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.
28
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.
29
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.
30
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.
31
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).
32
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.
33
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.
34
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.
35
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.
36
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
37
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.
38
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.
39
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.
40
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.
41
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).
42
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.
43
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.
44
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.
45
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)
International Development Law Organization
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
International Development Law Organization
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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%
International Development Law Organization
59
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)
International Development Law Organization
60
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