Асыл Осмоналиева

Total Post: 149

Courts are interested in the development of mediation

Courts are interested in the development of mediation

Courts dealing with a huge number of disputes will clarify the right to mediation.

On April 21-22, Bishkek hosted training for judges of local courts “Fundamentals of mediation. Role in the litigation. The training was held at the Higher School of Justice under the Supreme Court of the Kyrgyz Republic with the support of the European Bank for Reconstruction and Development (EBRD) and the International Development Law Organization (IDLO) as part of a project to develop commercial mediation in the Kyrgyz Republic.

The purpose of the training is to provide comprehensive knowledge about mediation: to teach how to determine the criteria for mediable situations, to study the procedural rules for formalizing the submission of a dispute for mediation, and to consolidate the results of mediation.

Referee training

According to the law, mediation is carried out on the basis of the principles of voluntariness, cooperation, and equality of the parties to mediation, neutrality, and confidentiality. Sending the parties to an information meeting does not violate the principle of voluntariness, since during the meeting the mediator gives the most complete information about the mediation procedure, and the parties independently decide to choose mediation or court.

Leading expert of the Mediation Center of the Ural State Law University, mediator, Galina Sheremetova says that the practical application of mediation is gaining momentum where the courts are actively working.

The judge of the Sverdlovsk district, Galina Shin, is sure that the development of mediation will reduce the burden on the courts.

How can mediation help resolve a conflict?

When resolving a conflict situation, judges are limited by the rule of law, while the mediator can be flexible.

 “In my judicial practice, there was a family dispute over the division of inheritance between father and daughter. We sent them to an informational meeting with a mediator. After a certain time, the parties were able not only to resolve the property dispute but also to restore good, family relations. The non-verbal behavior of the parties allowed the mediator to understand that both the father and the daughter were under the strong influence of other persons. The mediator involved relatives in the mediation procedure, and together they were able to resolve the inheritance issue, but the most important thing is to restore good family ties,” Shin said.

How to find a mediator?

One of the key questions for judges is which mediator to refer the parties to? According to the data of the Republican Register of Mediators on the website www.mediator.kg , more than 400 mediators are members of the Republican Community of Mediators (RCM). At the same time, there are many mediators who work without being members of the RUM. Judges note the lack of mediators in the regions.

“I think all the problems that exist now will be overcome as practical work progresses. The active referral of the parties to the mediation meeting will contribute to the development of mediation, and increase the professionalism of mediators through the development of practical experience,” Shin said.

Director of IDLO in the Kyrgyz Republic Dilbara Maksimbekova says that the EBRD and IDLO program will provide comprehensive support in training judges and mediators in order to improve the legal environment in Kyrgyzstan through the development of commercial mediation.

“Successful resolution of commercial disputes is the key to the investment attractiveness of the country,” Maksimbekova believes.

Judges study the role of mediation in litigation

Judges study the role of mediation in litigation

On April 21-22, in Bishkek, the Higher School of Justice under the Supreme Court of the Kyrgyz Republic hosted a training session for judges of local courts on “Fundamentals of mediation. Role in the litigation”. The training is supported by the European Bank for Reconstruction and Development (EBRD) and the International Development Law Organization (IDLO) as part of the Commercial Mediation in the Kyrgyz Republic (Phase 2): Response to COVID-19 Project.

Director of the Higher School of Justice Elmira Baitikova, in her welcoming speech, noted the importance of developing mediation in Kyrgyzstan.

Director of the IDLO branch Dilbar Maksimbekova noted that since 2005 the organization has been cooperating with the judiciary in key areas – comprehensive training of judges, and the introduction of digital technologies.

“Currently, together with the EBRD, we are working on a project to develop commercial mediation in the Kyrgyz Republic. Successful resolution of commercial disputes is the key to the investment attractiveness of the country,” Maksimbekova said.

It is the court, which faces a large number of disputes, that can provide clarifications on the mediation procedure and direct the parties to an information meeting with the mediator.

Trainers Galina Sheremetova, leading expert of the Center for Mediation of the Ural State Law University, mediator, associate professor of the Department of Civil Procedure of the Ural State University of Law, and Galina Shin, a judge of the Sverdlovsk District Court of Bishkek, reported that within two days the participants received information about the basics of mediation and its role in litigation.

“Judges must understand when it is necessary to send the parties to an information meeting with a mediator, how to give clarifications, and be able to document the results of mediation meetings and procedures,” Sheremetova said.

Upon completion of the training, participants received certificates.

Memorandum Signed Between KTRK and IDLO

Memorandum Signed Between KTRK and IDLO

On April 19, 2022, the signing of the Memorandum of Mutual Cooperation with the International Development Law Organization ( IDLO ) took place in the KTRK building.

Director-General of KTRK Kairat Imanaliev said that the signing of the Memorandum is of great importance for the participants.

“We welcome the unification of efforts for the development and prosperity of society, the desire to make a joint contribution to the formation of a lawful and just state,” said Imanaliev.

Director of IDLO in Kyrgyzstan Dilbara Maksimbekova said that KTRK, being the leading television and radio company with a 90-year creative history, provides socially significant information for all residents of Kyrgyzstan.

“IDLO is an intergovernmental organization promoting the rule of law that has been operating in Kyrgyzstan since 2005. We are currently implementing a European Bank for Reconstruction and Development (EBRD) project to develop commercial mediation in Kyrgyzstan. The project contributes to the improvement of the investment climate in Kyrgyzstan. Legal informing of the population is the most important link in the implementation of the project,” Maksimbekova said.

The management of KTRK also signed memorandums with the executive director of the Association of Crisis Centers, and the heads of the Ukuk Bulagy and Okuu Keremet projects.

Cooperation for the development of commercial mediation in the Kyrgyz Republic

Cooperation for the development of commercial mediation in the Kyrgyz Republic

On March 14, 2022, the members of the Board and the Supervisory Board of the Republican Community of Mediators (RCM) met with representatives of the International Development Law Organization (IDLO), headed by the head Dilbara Maksimbekova.

During the meeting, the parties discussed the potential for cooperation within the framework of the project “Commercial Mediation in the Kyrgyz Republic (Phase 2): Response to COVID -19” implemented by the European Bank for Reconstruction and Development (EBRD) in cooperation with IDLO.

According to RCM representative Cholpon Omurakunova, with the program support of the EBRD and IDLO, success has been achieved in strengthening the institution of mediation in the country.

“Taking into account the new demands of society, we decided to improve the PCM website. Software support made it possible to create convenient access to the National Register of Mediators through the mobile version, and mediators, in turn, will be able to create their professional portfolios through their personal accounts. This simplifies the search and selection of a mediator for potential mediation clients,” Omurakunova said.

Director of IDLO Maksimbekova said that during the implementation of Phase 2 of the project for the development of commercial mediation in the Kyrgyz Republic, it is planned to carry out a set of activities in cooperation with RSM.

“We intend to hold information seminars on the topic of commercial mediation for representatives of small and medium-sized businesses. Effective settlement of disputes and disagreements will contribute to the sustainable growth and development of the country’s economy,” Maksimbekova said.

“Commercial Mediation in the Kyrgyz Republic (Phase 2): Response to COVID -19” is implemented by the European Bank for Reconstruction and Development (EBRD) in cooperation with IDLO and financed by the EBRD.

How to Find a Mediator in the Kyrgyz Republic?

How to Find a Mediator in the Kyrgyz Republic?

`The updated website of the Republican Community of Mediators (RCM) www.mediator.kg will facilitate the search and selection of a mediator.

On March 18, 2022, with the support of the European Bank for Reconstruction and Development (EBRD) and the International Development Law Organization in the Kyrgyz Republic (IDLO), within the framework of the project for the development of commercial mediation, together with RCM, a training was held for mediators on working with an updated resource.

Now the PCM website is available in a mobile version and adapted to all devices. Mediators will soon be able to open a Personal Account and fill out their professional portfolio by uploading their resume, and certificates, indicating their specialization, etc.

__________________________________________________________________________

According to official statistics, in 2020, there are 1,102 mobile phones per 1,000 people.

_____________________________________________________________________________

Director of IDLO in the Kyrgyz Republic Dilbar Maksimbekova says that the main goal of the innovations is to simplify the search and selection of a mediator for those who need their services.

“The project for the development of mediation in Kyrgyzstan was launched in 2017. The first phase of the project made it possible to train mediators, create a coordinating body – the Republican Community of Mediators and resolve certain commercial disputes. The goal of the second phase of the project is to support the government of Kyrgyzstan in promoting and facilitating the use of commercial mediation for small and medium-sized businesses,” Maksimbekova said.

What is special about commercial mediation?

Commercial mediation is an alternative mechanism for resolving disputes faster and more economically than is possible in the courts. The mediator helps the parties to find a mutually acceptable solution to the conflict through negotiations. The parties themselves develop a mutually acceptable agreement and are not subject to the decision of a third party. The principle of confidentiality is strictly observed here.

As a rule, commercial mediation includes four categories of disputes:

  • business-client (consumer disputes);
  • business – business (disputes from contractual relations);
  • intra-industrial disputes (labor disputes between the employer and the employee, disputes between employees, etc.);
  • corporate disputes (disputes between company members, between shareholders and a legal entity, etc.).

 

 Why consider commercial mediation?

In the Kyrgyz Republic, litigation requires the payment of state fees or fees of up to 5% of the amount of the claim in excess of legal fees (litigation costs in the Kyrgyz Republic are on average higher than in other countries of the region, and even compared to other high-income countries) , which could be a big blow to the profitability of SMEs.

The first phase of the project allowed SMEs to save up to 130,000 KGS (~ 1,500 GDP) in state duties and fees, in addition to achieving an amicable solution in 77% of cases and a subsequent higher level of voluntary enforcement of settlement agreements.

As part of the project, 35 commercial disputes were considered, 27 of which were successfully resolved through mediation.

 

Help for small and medium businesses

Director of the EBRD Small Business Consulting Program Bakai Zhunushev welcomes the possibility of resolving disputes through mediation.

“As part of our program, we help small and medium-sized businesses work with external consultants, and international experts to complete various business tasks. Our beneficiaries come from various industries – marketing, strategy, etc. Sometimes disputes and disagreements may arise, which are best resolved out of court, through commercial mediation,” Bakai Zhunushev believes.

The EBRD-IDLO project for the development of commercial mediation will allow entrepreneurs to avoid the costs of the services of a commercial mediator since these costs will be covered by the project.

Mediators learn how to effectively promote their services

Mediators learn how to effectively promote their services

On March 17 and 18, trainings were held for mediators on marketing services and working with the updated nationwide register of mediators on the website www.mediator.kg.

The trainings were held jointly with the Republican community of mediators with the support of the European Bank for Reconstruction and Development (EBRD) and the International Development Law Organization in the Kyrgyz Republic (IDLO) under the project for the development of commercial mediation in the Kyrgyz Republic.

During the first day of training, which took place both online and offline, experienced trainer Ulan Mukhamed taught the mediators key marketing techniques. The participants learned how to analyze and segment the mediator services market, position their personal brand and effectively promote their services. During the second day of the training, the participants got acquainted with the updates on the website of the Republican Community of Mediators www.mediator.kg .

A mobile version of the site has now been created, new functions allow mediators to access the Personal Account and fill out their portfolio – resumes, photos, certificates. This, in turn, facilitates the search and selection of a mediator for those who would like to resolve a dispute or conflict through mediation.

Mediator Elvira Borombayeva said that “now the site www.mediator.kg has become friendly and efficient.”

A qualitative update of the website and training of mediators became possible thanks to the support of the European Bank for Reconstruction and Development (EBRD) and the International Development Law Organization in the Kyrgyz Republic (IDLO) within the framework of the project “Commercial Mediation in the Kyrgyz Republic Phase 2: Response to COVID-19”.

New “Handbook” as an effective tool for improving professional legal culture

New “Handbook” as an effective tool for improving professional legal culture

Feedback on “Reference book of documents required for filing a lawsuit in civil, economic and administrative cases”

Directory of documents required for filing a lawsuit in civil, economic, and administrative cases (hereinafter referred to as the Directory) under the general editorship of Maksimbekova D.I., Director of the branch of the International Organization for Development Law in the Kyrgyz Republic, Adviser on capacity building of the justice sector, ex Judge of the Supreme Court of the Kyrgyz Republic, prepared by highly professional lawyers of the Kyrgyz Republic, including recognized proceduralists, current and former judges of the Kyrgyz Republic:

  • Aitbaeva I.M., retired judge, teacher of the Higher School of Law under the Supreme Court of the Kyrgyz Republic (Chapters I-III, IV: 1-2, VII, X-XIV, XVII, XVIII: 2-3, XXXVIII, XXXIX);
  • Akhmetova A.K., Chairman of the Administrative Court of the Chui region (Chapters VIII, XIV, XXVIII: 1-15, XXIX-XXXV);
  • Kalybaev A.Zh., Chairman of the Pervomaisky District Court of Bishkek (Chapters II, XV, XVI);
  • Melnikova M.P., Judge of the Supreme Court of the Kyrgyz Republic (Chapters V, VI, IX, XVIII-1, XXXVII);
  • Rybalkina A.D., Judge of the Bishkek City Court (Chapters XVIII:4-11, XIX – XXVII, XXXVI).

The presented book is the first edition of the reference book, the first such publication in the recent history of jurisprudence of the Kyrgyz Republic, which best of all speaks of the value of this work.

The reference book is in demand, this is obvious since there are no analogs to it at present. The handbook consists of 39 chapters, each of which provides a brief but very capacious description of the minimum written evidence for various categories of cases attached to the statement of claim in accordance with part 4 of article 135 of the Code of Civil Procedure of the Kyrgyz Republic, which is necessary for its adoption by the court in accordance with article 136 of the Code of Civil Procedure of the Kyrgyz Republic. These lists of evidence are based on the general legislative rules of judicial proof, correlated with the practice of courts of general jurisdiction (and in some cases, arbitration). Comments on the relevant definitions are given, and signs of evidence, their types, and stages of proof are described.

The authors justifiably chose the classical system of organizing the material: according to the types of procedural actions, repeating the logic of presenting the material in the Code of Civil Procedure.

First, the action proceedings are presented (most of the material). Then there are cases arising from public relations. After that, the evidence in the proceedings is characterized – special (for example, on the establishment of facts) and executive, as well as a completely new category of claims for the domestic law enforcer – administrative.

The Directory also provides evidence-based on tax, customs disputes, and bankruptcy cases. At present, such information will be extremely useful for judges of district courts, who have only recently been transferred to this category of disputes, in order to improve the quality of legal proceedings in economic disputes, overcome the vicious practice of making decisions “by template” and emasculate the essence of justice.

Under these conditions, the Handbook will help improve the professional legal culture of judges of local courts of the Kyrgyz Republic, because the courts today primarily contribute to economic growth in the state, creating a predictable and fair legal environment through the adoption of lawful, fair and reasonable decisions, provide reliable protection of the rights of citizens and their associations, including property rights.

The need to resume economic growth in the Kyrgyz Republic and ensure long-term stability puts on the agenda the issue of improving the judicial system, and increasing the authority of the judiciary.

The book summarizes the considerable practical experience of the courts of general jurisdiction, and this is felt literally in every line of the text, although the authors practically do not give specific examples.

The value of a book, it seems to me, is determined by two factors.

  • Firstly, in preparing for the categories of cases considered in the book, representatives of the parties can directly use published developments and evidence schemes.
  • secondly, the work of the above lawyers contains valuable information on how to prove any – not only those considered in the book – claims within the framework of a civil process.

The handbook gives a very clear idea of ​​how evidence is organized in the courts of the Kyrgyz Republic. The authors systematized data on the subject and burden of proof, identification and collection of various types of evidence, and their study, evaluation, and verification of the correctness of proof during the revision of judicial acts. Moreover, the materials are presented from the point of view of an ideal judge. Emphasis is placed on how to build a system of proof in terms of established judicial standards. It is characteristic that the authors in the notes on each statement (claim) draw attention to typical situations in the study of evidence and the sequence of judicial appeal.

The book is very important for understanding the ideas of judges about proof in the civil process of the Kyrgyz Republic.

In my opinion, the first edition of the Handbook deserves the highest rating in professional literature and periodicals.

A directory of documents required for filing a lawsuit in civil, economic, and administrative cases is very useful to work, especially since it is published both in the state and in the official language, that is, it is available to all categories of the population, and above all, for lawyers, lawyers, judges, prosecutors, in other words, for all legal professions, when drafting claims and participating in civil courts.

I look forward to its subsequent reprints in the context of an acute shortage of such literature, since at present in the Kyrgyz Republic, except for the International Organization for Development Law in the Kyrgyz Republic, the United States Agency for International Development (USAID), no one professionally and systematically deals with the publication of specialized literature for lawyers.

pdf 23 23 Directory of documents required for filing a claim with a court in civil, economic and administrative cases
pdf 23 23 Reference to the documents required to file a lawsuit in civil, economic and administrative cases

T.I. Imankulov – 

Doctor of Law, Associate Professor, Professor of the Department of Theory and History of State and Law, Faculty of Law, Kyrgyz National University named after. J. Balasagyn                            

Source: https://www.knu.kg/ru/index.php?option=com_content&view=article&id=8621:2022-03-01-10-04-28&catid=124:2010-04-21-10-36- 57&Itemid=281 

Judges Learn the Basics of Mediation

Judges Learn the Basics of Mediation

On December 23, 2021, a two-day seminar for judges of local courts on the topic: “Fundamentals of mediation. Mediation in litigation”.

The workshop is supported by the European Bank for Reconstruction and Development (EBRD) and the International Development Law Organization (IDLO) as part of the project “Commercial Mediation in the Kyrgyz Republic Phase 2: Response to COVID-19”.

The Director of the Higher School of Justice, Elmira Baitikova, welcomed the participants of the seminar, noting the importance of developing mediation in the legal sphere.

Director of the IDLO branch Dilbar Maksimbekova informed that the second phase of the project for the development of commercial mediation in the Kyrgyz Republic has now begun, which includes a component on pilot mediation in courts.

“With project support, judges will send the parties to an information meeting with a mediator to resolve economic disputes. During the information meeting, the mediator will explain to the parties about the mediation procedure, and after receiving full information, the parties will have the right to choose or refuse mediation,” Maksimbekova said.

Experienced trainers were invited to train judges: Galina Sheremetova – leading expert of the Mediation Center of the Ural State Law University, mediator, associate professor of the Department of Civil Procedure of the Ural State Law University, Ph.D. and Judge of the Sverdlovsk District Court of Bishkek, Ph.D. Galina Shin.

International mediation trainer Galina Sheremetova says that the training of judges is an essential link in the development of the institution of mediation.

“The purpose of the training is to give knowledge about the essence of mediation, its principles, and differences from litigation; to teach how to determine the criteria for medialability of a situation, to interact with mediators and parties, to study the procedural rules for formalizing the transfer of a dispute for mediation, securing reconciliation in mediation, in general, the effect of mediation on litigation,” said Galina Sheremetova.

Singapore Convention: Settlement of Cross-Border Commercial Disputes

Singapore Convention: Settlement of Cross-Border Commercial Disputes

On December 20, 2018, the UN Convention on International Settlement Agreements Achieved in the Course of Mediation was adopted. This convention, known as the Singapore Convention, aims to facilitate international trade and promote the use of mediation to resolve cross-border commercial disputes.

To date, 53 States have signed the Convention.

Mediation has its own specifics in the settlement of disputes. This process is flexible. The parties themselves establish their own procedures and work on their own agreement, they can discuss legal as well as non-legal issues and find the most acceptable solution to their dispute. Since this procedure is tailored to the needs and concerns of the parties, it may require less time and resources than litigation.

The Singapore Convention guarantees that the settlement reached by the parties becomes binding and enforceable in accordance with a simplified and well-organized procedure. In doing so, it contributes to enhancing access to justice and strengthening the rule of law.

Prior to the adoption of the Singapore Convention, a frequently cited problem in the use of mediation was the lack of an effective and consistent framework for cross-border enforcement of settlement agreements reached through mediation. It is with this need in mind that the United Nations developed and adopted the Singapore Convention. In this context, the Convention contributes to the development of a mature, rule-based global business system.

Benefits provided by the Convention: The use of mediation provides significant benefits, such as:
– reducing the number of cases in which a dispute leads to the termination of commercial relations;
– facilitating the implementation of international transactions by participants in commercial activities;
– Achieving economies in the process of administration of justice by states.

The Convention contributes to the creation of a coherent legal framework for the fair and effective settlement of international investment disputes. As a binding international instrument, it will provide additional guarantees for the certainty and stability of this framework, thus contributing to the achievement of the Sustainable Development Goals.    

By becoming a Party to the Convention, a State or a regional economic integration organization agrees to apply the Convention to international settlement agreements reached as a result of mediation (Article 1 of the Convention).

The Convention provides that States, by signing the Convention, express their consent to be bound by it, subject to subsequent ratification, acceptance or approval.

The signature clause, subject to subsequent ratification, allows States to seek domestic approval of the Convention and enact any legislation necessary for the domestic implementation of the provisions of the Convention before it becomes legally bound by the Convention at the international level.

According to professional mediators, the Singapore Convention promotes the development of economic relations at the international level.

“British business mediator Bill Marsh, one of the top ten mediators in the world, considered the adoption of the Convention as a fact of strengthening the confidence of the international community in mediation and strengthening the influence of mediation on business processes and the investment attractiveness of states,” the Lawyer portal reports.

Sources : https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/ru/v1808436_russian_revised.pdf

Radion Tegay, the business mediator: We need a constructive approach to resolving disputes and conflicts”

Radion Tegay, the business mediator: We need a constructive approach to resolving disputes and conflicts”

Radion Tegay is confident that the use of mediation in business will help to avoid unjustified losses. He shares his experience as a mediator on the Danaker platform.

How did I get into mediation? 

As a lawyer, I was already involved in business negotiations and took part in the consideration of various disputes, and the conclusion of settlement agreements, which, in fact, is very close to mediation. But in mediation, a different approach is needed: for example, if you participate in negotiations in the interests of one of the parties, then in mediation it is necessary to maintain neutrality, helping the parties to make their own decisions.  

Mediation is one of the alternative dispute resolution technologies with its own specific principles and rules, with the participation of a neutral party not interested in this conflict – a mediator who helps the parties to develop a specific agreement on the dispute.  

Protracted conflict 

Since I have been working with commercial structures for a long time, it was business disputes that were the focus of my attention. One of the latest cases that were resolved through mediation was a dispute between a large construction holding and its shareholder. The dispute lasted more than four years: the parties went through the court and had a decision in their hands that came into force, but its execution did not move forward. The conflict reached such intensity that the parties did not even want to greet each other.  

To resolve this situation, I was first involved as a lawyer, and only after a while, after several rounds of negotiations, did I suggest that the parties resolve the dispute through mediation. Negotiations between the parties went on for almost two months, during this period they took pauses, revised their requirements, calculated the risks and opportunities, and ultimately, they came to a mediation agreement.

Why is a mediator needed?

It would seem: what prevented the parties from reaching an agreement on their own, without resorting to the services of a mediator? But in reality, this is very difficult to do. After all, each side has its own motives, its own benefits, and they see the situation only through the prism of their own interests. Confrontation can drive them to a dead end. And in this situation, the mediator can help the parties find points of mutual interest.

So far, business is poorly informed about mediation. Meanwhile, mediation allows the parties not only to make a decision but to actively work on its development themselves. At the same time, the parties signing a mediation agreement are more responsible for its implementation. 

I hope that the new phase of the project of the European Bank for Reconstruction and Development (EBRD) and the International Development Law Organization (IDLO) to develop commercial mediation will increase the effectiveness of dispute resolution in the country. 

Business understands that a constructive approach is needed in resolving disputes and conflicts, no one needs confrontation. Yes, at the very beginning of the conflict, resentment and anger can prevail, which extinguishes common sense, but when a person calms down and receives more information for analysis, he will ultimately try not only to avoid significant losses but also to maintain normal relations in the future.

Business and mediation: a new concept of dispute resolution

Business and mediation: a new concept of dispute resolution

Conflicts and disputes in business can lead to financial and reputational losses. The goal of Phase II of the EBRD -IDLO project “Development of commercial mediation in the Kyrgyz Republic: response to COVID -19” is to assist small and medium-sized businesses in resolving disputes.

Director of the International Development Law Organization (IDLO) Dilbar Maksimbekova says that the project will carry out comprehensive work:

“The key objectives of the project are to increase the capacity of mediators, train judges to identify mediable cases, and assist businesses in resolving commercial disputes,” Maksimbekova informed

Specificity of commercial mediation

Commercial mediation is an alternative dispute resolution procedure in which the mediator, through negotiations, helps the parties find a mutually acceptable solution to the conflict.

Commercial mediation is a confidential procedure that saves money and time. And, perhaps, the most important difference between commercial mediation and all other systems is that here the parties themselves develop a mutually acceptable agreement, and are not subject to the decision of a third party.

As a rule, commercial mediation includes four categories of disputes:

  1. Business – client (consumer disputes);
  2. Business – business (disputes from contractual relations);
  3. Intra-industrial disputes (labor disputes between employer and employee, disputes between employees, etc.);
  4. Corporate disputes (disputes between company members, between shareholders and a legal entity, etc.).

Business Perspective

According to an online survey of representatives of the business community, 45.2% of respondents noted that other entrepreneurs and business entities are on the opposing sides in their disputes. In 40.5% of cases, the other side in the dispute is the state (regulatory) authorities, and the rest marked the answer option – others.

To date, the Republican Community of Mediators (RCM) has been established in Kyrgyzstan. On the community website, you can find legal information, and study the portfolio of mediators operating in Kyrgyzstan.

As the mediators themselves note, mediation is a relatively new technology for resolving disputes in Kyrgyzstan.  

“In order to achieve success, it is necessary to work on improving the professionalism of mediators, as well as informing the public about the benefits of mediation,” says mediator Gulchekhra Murzakmatova.

She welcomes the launch of the project, expressing confidence that the project support will improve the quality of settlement of disputes and conflicts in the business environment.

The project “ Development of Commercial Mediation in the Kyrgyz Republic: Response to COVID -19” funded by the  EBRD is being implemented jointly with the International Development Law Organization (IDLO) in cooperation with the Supreme Court of the Kyrgyz Republic, the Higher School of Justice under the Supreme Court and the Republican Community of Mediators of the Kyrgyz Republic.

A program aimed at improving the quality of justice

A program aimed at improving the quality of justice

On September 28, 2021, the official closing of the USAID-IDLO Trusted Judiciary program took place in Bishkek. Participants were welcomed by USAID Democracy and Governance Division Director Noel Bauer and President of the Supreme Court of the Kyrgyz Republic Nurgul Bakirova.

Director of the IDLO branch in the Kyrgyz Republic Dilbar Maksimbekova outlined the key program achievements for 2011-2021.

Thus, during the project period, assistance was provided in the development and promotion of the I (2014-2017) and II (2019-2022) State Target Program (STP) for the development of the judicial system.

This strategic document, adopted with the agreement of all branches of government, provides for an increase in the financing of the judiciary, improvement of the infrastructure of buildings, development of vocational training, wage increases, and the introduction of digital technologies.

Digitalization of the judicial system

According to IDLO consultant in the Kyrgyz Republic Viktor Albrecht, program support in the digitalization of the judicial system was built taking into account an integrated approach.

“Firstly, this is the development of plans for digitalization, the relevant areas and budget were fixed in STP1 and STP2 and detailed in the Strategic plans for the development of information technologies for 2014-2018 and 2019-2022. Secondly, the program provided organizational technical assistance: it helped to establish the Adilet Sot Information Technology Institution and the Data Processing Center to implement and service the IT needs of the judiciary. Thirdly, the program helped expand and modernize the network and communication infrastructure of the courts and purchase part of the computer equipment. It should be emphasized that the purchase of AVT equipment and the introduction of digital technologies were carried out at the expense of the state budget. Fourthly, the Software Assistance made it possible to develop and implement software in key areas:

  • E-Court: An electronic document management system was developed and implemented in the SC of the KR, case and legal proceedings systems in the SC of the KR, which improve the processes of case management and documentation.
  • Register of Acts:  The Program supported the development of the site http://www.act.sot.kg and its expansion to a full-featured system “State Register of Judicial Acts”. Today, almost 90% of all decisions are published on this public resource, which allows the public to see the quality and validity of court decisions.

Currently, a contextual keyword search has been launched in test mode, which will allow you to search or summarize identical judicial acts on this site. The updated system will automatically depersonalize and publish judicial acts in the State Register of Judicial Acts. (Except for those whose publication is not provided for by law).

The participants of the final presentation were able to see on the demo screen how the system automatically depersonalizes and publishes judicial acts in the State Register of Judicial Acts.

Demonstration of new technologies

The participants were presented with an apparatus for remote interrogation of a witness. The compact device will allow remote interrogation of the witness during the trial. This method of interrogation may be necessary if the personal presence of a witness in court is associated with certain risks. Employees of the PEC “Adilet sot” demonstrated in real-time how to conduct a remote interrogation, while there are functions that allow you to hide your face, and change the voice of a witness during remote interrogation.

The next system that is being introduced to increase the transparency and accountability of the judiciary is the audio and video recording system (AVT).

This system allows you to draw up the minutes of the court session with the greatest accuracy, thereby preventing possible violations and corruption.

To introduce new technologies, employees of the judicial system were trained, and assistance was provided in changing the legislative framework.

Analysis of judicial acts based on open data

With the support of the program, Methodological recommendations for the generalization of judicial practice in Russian and Kyrgyz languages ​​were developed and approved by the Supreme Court of the Kyrgyz Republic. This allowed the legal community to analyze judicial acts, including using the data posted on the act.sot.kg website.

  • Civil legal community carried out:

10 analyzes of judicial acts in civil, criminal cases, and tax disputes,

  • Judges from the regions conducted a generalization of judicial practice in cases of establishing legal facts and crimes against sexual integrity.
  • The Association of Lawyers of Kyrgyzstan and the Association of Markets, Trade and Services Enterprises of Kyrgyzstan analyzed the problems of participation of government agencies in litigation.

The programmatic work on the digitalization of the judicial system was awarded the prestigious DIGITAL DEVELOPMENT AWARDS.

 

Professional development of judges

With the support of the Program, a platform has been created for the systematic, continuous professional development of judges and court staff.

According to the director of the Higher School of Law Elmira Baitikova, with program support, it was possible to introduce a comprehensive training program for current and newly appointed judges.

The USAID-IDLO program, together with the Higher School of Justice, conducted a pilot mentoring project this year. In seven courts of the republic, 26 mentors were distributed, which were qualified judges, as well as ex-judges.

How to file a claim?

With program support, a Directory of Documents Required for Filing a Statement of Claim with a Court in Civil, Economic and Administrative Cases has been published.

The handbook published in Kyrgyz and Russian languages ​​can be used by judges, lawyers, prosecutors, students, teachers of higher educational institutions, practicing lawyers, and citizens who apply to the courts to protect their rights, freedoms, and legally protected interests. This, in turn, facilitates citizens’ access to justice.

Enhancement of legal education

The program helps to improve the system of legal education. The Moot Court Course was introduced in six universities across the country. Annual inter-university competitions in drafting judicial acts and conducting a trial have improved the quality of legal education in the country.

Moot Court

Information work

The program supported initiatives aimed at informing the public about the activities of the judiciary.

  • During the project period, 12 episodes of the legal TV program “Achyk Aikyn” were launched in Kyrgyz and Russian languages, which were broadcast on KTRK and regional TV channels.
  • Platforms Expert cafe, Danaker talkuu were created to discuss legal topics
  • Trained judges and press secretaries of the judiciary on interaction with media representatives.

Decrease in violence in society

Sharing the values ​​underlying the global action “16 Days of Activism Against Gender Violence”, the Program supported activities aimed at raising the legal awareness of young people and reducing violence in society.

Thus, from November 25 to December 10, with the support of USAID and IDLO, within the framework of the Trusted Judiciary program, in partnership with the Supreme Court of the Kyrgyz Republic and the Association of Legal Clinics, the action “There is no justification for violence” was held.

This action was timed to coincide with the global campaign “16 days of activism against gender-based violence”. Seven student teams interviewed 917 respondents and developed social videos based on the information they collected. All videos were posted in the public domain on the Instagram platform under the single hashtags #ZombuluktuAktaba #JashtarTendikUchun. The students’ videos have received more than 15,000 views.

From February 25 to April 8, 2020, a large-scale republican competition among schoolchildren of Kyrgyzstan “There is no excuse for violence” was held, which was organized by the ALE “Association of Legal Clinics of Kyrgyzstan” with the support of the USAID-IDLO Trusted Judiciary program in partnership with the Ministry of Education and Science of the Kyrgyz Republic.

As part of the competition, with the involvement of lawyers and experts, online seminars were held for participants on the topic: “What is gender and family violence and how to deal with it?”.

In the course of a large-scale online survey on gender-based violence, the participating teams interviewed 12,411 respondents throughout the country and, based on the information collected, prepared 145 social videos that received massive support from youth and society through youtube platform, the total views of which exceeded 120,000.

USAID-IDLO Program Helping to Develop Mediation in Kyrgyzstan

USAID-IDLO Program Helping to Develop Mediation in Kyrgyzstan

Mr.Khait Aikynov, a resident of the Batken region, completed the Basic Mediation Course organized last year with support from the USAID-IDLO Trusted Judiciary program. As a member of an Aksakal court (court of elders), he wanted to explore new dispute resolution models. 

“The mediation approach expands the range of possibilities, and most importantly, it increases the responsibility of the parties, forcing them to make a mutually-beneficial final decision,” says Aikynov. 

He claims his new mediation knowledge enabled him to successfully resolve a dispute between two neighbors that had lasted more than 20 years. 

“Twenty years ago, the residents of Batken received their land shares. One of the allocated parcels was located near the central road. At that location, one of the residents built a car repair service. Business flourished: a good location was one of the success factors. Problems, however, started a few years later. It turned out that the owner of the car repair shop had built the shop on his neighbor’s land. Of course, the rightful owner began to claim the profitable land,” says Aikynov. 

According to the mediator, residents were supposed to have carefully studied the map during the initial stage (after the allocation). 

“But then, the villagers by virtue of their legal nihilism, established approximate boundaries of the plots without going into details, especially since the plots adjoined each other. So the legal owner of the land discovered a discrepancy with the map only when collecting permits for building a house after several years. After that, he demanded the establishment of legal boundaries,”Aikynov explains. 

However, it was not easy to return the plot: the owner of the car repair shop believed that he had invested a lot of money in developing the business. The dispute between the neighbors came to a standstill: neither side wanted to make compromises. 

“Then the parties went to court. But the judge advised them to use mediation,” Aikynov notes. 

The mediation procedure lasted a month and as a result, the parties came to an agreement. The owner of the car workshop is returning the plot to the rightful owner, absorbing his own expense, and the rightful owner of the site is not pursuing his claims against the other for using the site for 20 years. 

“It is difficult to imagine that such an agreement could be reached in court, where a verdict is issued in favor of only one of the parties,” says Aikynov. 

The Law on Mediation, which entered into force in February 2018, gave impetus to the development of mediation in the Kyrgyz Republic. During this period, mediators held the first congress and created the National Community of Mediators (NCM). 

The USAID-IDLO Trusted Judiciary program helped develop special training guides and train mediators. More than 80 people attended four basic mediation training courses and the program also supported two additional trainings on restorative mediation. 

Armed with their acquired knowledge, the participant-mediators further examined and resolved 23 cases on family disputes, mostly concerning the payment of alimony and child custody. Another nine cases concerned the division of property and debt repayment, and one case concerned dividing a company between two founders. 

According to the Head of the NCM, Ms.Gulsina Kozhoyarova, the Trusted Judiciary Program’s support has been essential in establishing and strengthening the institution of mediation. 

“We are ready to raise development of mediation to a new level now,” she said. 

According to Mr. Aikynov, mediation opens up new possibilities for resolving disputes and conflicts. 

“Mediation is clear for our people. Aksakal courts (courts of elders) are based on the recognition of the authority of the elders, while in mediation, although the dispute is also resolved with the help of a neutral person, the final decision is made by the parties to the dispute. This increases their responsibility,” Aikynov said. 

Mr.Aikynov is confident that the development of mediation will reduce conflicts in society, which, ultimately, will lead development of the country in a constructive direction. 

Court users start to asses the quality of trials

Court users start to asses the quality of trials

The plaintiffs, the defendants, the accused, the victims, the defense and prosecution representatives will assess the work of the judiciary. The Trusted Judiciary Program launched the survey in twenty-five courts of Kyrgyzstan on May 13.

The program will analyze the results of the survey and the quality of the services provided to develop recommendations for improving the work of the judiciary.

The survey will cover all regions of the Kyrgyz Republic in civil, criminal, administrative and economic legal proceedings.

In August 2018, the Supreme Court, with the support of the USAID-IDLO Trusted Judiciary Program (Increasing Public Trust in the Judiciary Program), conducted a pilot “Court Users’ Satisfaction Index” survey during which the methodology and data collection system were tested and, based on the results, improved.

A Senior in Law That Rushes to Mock Court

A Senior in Law That Rushes to Mock Court

Tazagul Mambetalieva, a senior in law, rushes on Saturdays to the Kyrgyz National University (KNU) to attend her favorite class—the mock court. Along with 15 fellow students, she tries on different roles—a judge, lawyer, prosecutor, plaintiff, and defendant, in an auditorium set up as a courtroom.

This opportunity, provided by the USAID-IDLO Trusted Judiciary Program (IPTJ), seeks to improve Kyrgyz legal education and helps Tazagul and her classmates become better lawyers.

The mock court course allows law students to simulate what occurs in lower court trials and to learn about the legal system in a competitive manner. Tazagul believes that this course allowed her to hone her legal skills before working in the legal system.

“A perfect lawyer should be righteous, that is who I want to be,” says Tazagul. “Before judging someone, you have to ask yourself whether you are fair and objective.”

She gained this understanding during her semester enrollment with the mock court course, which, in addition to allowing students to understand the roles of various participants in trial procedures, provides them an opportunity to analyze judicial cases. The cases are drawn from the www.act.sot.kg platform, which contains about 130,000 court decisions published online and was launched with the support of the USAID-IDLO Judicial Strengthening Program six years ago.

“Today’s students will make justice tomorrow. Without a just state it is impossible to make progress,” says Alisher Madalinov, KNU professor. That is the reason for IPTJ’s active involvement in developing and scaling the mock court discipline in various higher educational institutions, including through a National Mock Court Competition, during which the best performances will be videorecorded as an educational guide.

Tazagul knows the exact reasons why she decided to enroll in this optional course.

Supreme Court: direct interaction with the media

Supreme Court: direct interaction with the media

On April 2, 2019, the Chairwomen of the Supreme Court of the Kyrgyz Republic Gulbara Kaliyeva met with the editors and leading journalists of the local media under the framework of the USAID-IDLO Trusted Judiciary Program.

“I wanted to discuss ways to interact with the media, to hear your opinions and suggestions,” said Gulbara Kaliyeva.

It was important for journalists to discuss problems related to lawsuits against the media, access to information and to know more about the course of judicial reform

Responsibilities of both sides

Editors were interested in position of the Chairwoman of the Supreme Court on legal proceedings against the media. In particular, they touched upon certain instances when the media were held accountable for the fact that the interlocutor voiced conflicting information. Kaliyeva expressed her personal opinion; a journalist should not be held accountable for “holding a microphone”. https://outlook.office.com/owa/?realm=idlo.int&exsvurl=1&ll-cc=1049&modurl=0.

Journalists also wanted to know the position of the Chairwoman in criminal cases regarding judges, including judges of the Supreme Court of the Kyrgyz Republic. In this regard, Kaliyeva called for the presumption of innocence to be respected.

Court decisions should be published 

Journalists raised the issue of access to judicial information, in particular, the lack of court decisions on high-profile cases on the website www.act.sot.kg. Currently, there are over 166 thousand cases, almost 230 thousand judicial acts are published on the site.

 New technologies in the judicial system

Questions were raised on the introduction of digital technology. According to Kaliyeva, the system of audio and video fixations, automated distribution of cases, and the publication of court decisions is being actively implemented today.

“Certain mechanisms aimed at reducing corruption are being introduced, perhaps we say little about it,” said Kaliyeva.

Kaliyeva said she would welcome analytics, objectivity and balance in journalistic materials and assured that the Supreme Court, in turn, will strive for transparency.

Disciplinary Commission: How are Judges Judged?

Disciplinary Commission: How are Judges Judged?

1700 complaints against judges were received by the Disciplinary Commission for the first year of work as a separate constituent body. This was reported by the Chairperson of the Disciplinary Commission at the Council of Judges of the Kyrgyz Republic Kymbat Arkharova during an ExpertCafe meeting on January 31, 2019.

In fact, it was the first public report of the Commission on the work done.

According to Arkharova, 1060 cases out of the total number of complaints received were returned, according to 246 complaints an internal investigation was conducted.

“According to the results of the official investigation, disciplinary action was taken against 74 judges. According to 172 complaints, it was denied consideration due to the absence of the judge’s guilt and evidence, as well as the expiry of the term for bringing to disciplinary responsibility, ”Arkharova said.

The Commission made submissions on the early release from office in respect of 5 judges.

Powers of the Disciplinary Commission

According to Chinara Musabekova, Deputy Chairman of the Commission, the Disciplinary Commission cannot consider the legality of court decisions; only disciplinary offenses are considered here.

“Most citizens mistakenly believe that the Commission will review judicial decisions. No, we are considering disciplinary offenses, but if there was a systematic violation of service discipline and procedural norms, or the judge allowed interference in his work, we can introduce a notion of early dismissal from his post, as was done in respect of 5 judges. ” explained Musabekova.

Last year, on the basis of submissions, five judges were prematurely dismissed from office: Judge of the Oktyabrsky District Court Gulchekhra Omorov, Chairman of the Sverdlovsk District Court Elvira Zharkeeva, Judge of the Sverdlovsk District Court Dotolotbek Turdukozhoyev, Judge of the Moscow District Court Marles Felix and Judge of the Naryn City Court Aynagul Joschul Jougul J.

In 2018, the Disciplinary Commission agreed with the Prosecutor General on bringing four judges to criminal responsibility.

Reference:

Bringing a judge to criminal responsibility is allowed with the consent of the Disciplinary Commission at the Council of Judges on the proposal of the Prosecutor General. In order to obtain this consent, the Prosecutor General makes a submission to the Council of Judges indicating the circumstances of the criminal case, the applicable criminal law articles and requests for consent to be brought to criminal responsibility as an accused. The decision of the Disciplinary Commission on consent or disagreement on bringing a judge to criminal or administrative responsibility is not subject to appeal.

Commission member Kanat Turganbekov said that now 80% of the judges are new judges.

“It’s not that they all know the procedural code well. Consideration of disciplinary offenses by our commission and their publication on the website increases the responsibility of judges, ”Turganbekov said.

On July 28, 2017, the Law of the Kyrgyz Republic “On the Disciplinary Commission under the Council of Judges of the Kyrgyz Republic” was adopted. “According to the new Law, the Disciplinary Commission is a separate constituent body authorized to consider issues of disciplinary responsibility of judges.” The Disciplinary Commission consists of nine members, the structure is formed by the President, the Jogorku Kenesh and the Council of Judges of the Kyrgyz Republic, 1/3 of the commission, respectively. The Disciplinary Commission is considered eligible after forming at least 2/3 of its membership, currently, there are eight members of the Commission.

[This content was automatically translated from Russian language]

On The Development of Businesses and Mediation

On The Development of Businesses and Mediation

Entrepreneurs welcome the introduction of alternative dispute resolution, in particular, the development of commercial mediation. The most active aspire to get the second profession of a mediator. This was announced on November 30 during a panel discussion on the Danaker platform on the topic: “How will mediation help in business development?”.

During the meeting, business representatives and key experts of Danaker: Dilbara Maksimbekova, adviser on judicial reform of the International Development Law Organization (IDLO) in the Kyrgyz Republic, representative of small hydropower plants, mediator Elvira Borombaeva and director of the International Center for Alternative Dispute Resolution ADR Center International in Romania Konstantin Adi Gavrila discussed issues related to the resolution of commercial disputes.

Mediation for business

Dilbara Maksimbekova informed that at the beginning of the year, they were approached by businessmen with a request to organize a separate training on commercial mediation.

“Businessmen wanted to know what possibilities the meditation opens up, how the procedure itself is carried out, what is its peculiarity? We saw that businessmen are not only interested in the alternative resolution of disputes, moreover, but they themselves also want to mediate. And this is justified: who knows the problems of business better than they do? We decided to support the initiative and invited an international trainer from Minsk Liliya Vlasova to conduct a special course on commercial mediation for business representatives, ”said Dilbara Maksimbekova.

During the five-day Commercial Mediation Course, more than 20 entrepreneurs received a mediator certificate. Gulnara Uskenbaeva, President of the Association of Suppliers, Manufacturers and Distributors, believes that mediation of dispute resolution can become one of the sought-after extrajudicial procedures.

“As a rule, disputes in business are resolved in the process of negotiations or in court. But in court cases are considered for a long time, and waiting for a business is too expensive. The negotiation process may also come to a standstill. And the presence of the neutral side of the mediator can qualitatively affect the negotiation process. I saw a great perspective in mediation and decided to go through special training, ”said Uskenbayeva.

Alternative solution

The law on mediation came into force in early 2018. A feature of mediation is the resolution of disputes with the participation of a neutral person – the mediator. According to experts, an alternative method of resolving disputes will relieve the courts and thereby contribute to improving the quality of courts.

According to official data, the average workload per judge of the first instance is 43.2 cases, the average workload per judge at the second instance is 6.7 cases.

But, the state courts for the recognition of the entrepreneurs themselves are the “last resort”. According to the head of the alliance, Uluk Kydyrbekov, now the cumbersome handling of cases in state courts and, most importantly, the introduction of state fees pushes business away from them

Entrepreneur Kubat Rakhimov asked the order in which he prefers to resolve commercial disputes by building the following order: negotiations, arbitration, and only then the courts. According to Elvira Borombaeva, entrepreneurs somehow have to face conflict situations.

“Mediation has certain tools that will allow us to constructively resolve conflicts, maintain partnerships, and this is very important in business,” says Borombaeva.

How to create demand supply?

To date, the Republican community of mediators has been created and 72 trained mediators have already received a mediator certificate. In addition, there are two mediation centers in the country – the National Center for Mediation and the Center for Mediation and Negotiation. 85 mediators were trained under the project of the European Bank for Reconstruction and Development and IDLO “Development of Commercial Mediation in the Kyrgyz Republic”.

But between the mediators and the business has yet to create a mutually beneficial path of cooperation based on supply and demand. Now, most mediators have little practical experience in resolving commercial disputes, and business has little information about mediation. In addition, there are legal restrictions: mediation cannot resolve disputes if one of the subjects is the state. Meanwhile, entrepreneurs have repeatedly talked about the problems of interaction with government agencies, the contradictions associated with tax and customs issues.

Taking into account the current situation, IDLO within the framework of the EBRD project “Development of Commercial Mediation in the Kyrgyz Republic” is ready to provide support to businesses and take the costs of paying for mediator services.

“Now there is little information in society about the opportunities that are being created in the right field. And we all have to do a lot of work in this direction, ”said Dilbara Maksimbekova.

[The original language of the article is Russian, and this post is translated automatically.]

Criminal Cases Against Judges by the Prosecutors

Criminal Cases Against Judges by the Prosecutors

According to the website www.prokuror.kg, from the beginning of the year, the prosecutor’s office of the Kyrgyz Republic initiated 13 criminal cases. Danaker has studied open data for the past seven years in order to compare quantitative and qualitative indicators.

According to the website of the prosecutor’s office, the largest number of cases against judges were initiated this year – 13 cases, with three of them against judges of the Supreme Court of the Kyrgyz Republic. At the same time, 12 cases are criminal, most of which relate to the imposition of knowingly unjust sentences and decisions – Article 328 of the Criminal Code of the Kyrgyz Republic. The smallest number of cases against judges, namely three cases, was initiated in 2017.

The procedure for bringing a judge to criminal and administrative responsibility is clearly stated in the legislation of Kyrgyzstan: the decision to institute criminal proceedings against a judge is taken by the Prosecutor General. Bringing a judge to criminal responsibility is allowed with the consent of the Disciplinary Commission at the Council of Judges on the proposal of the Prosecutor General.

In order to obtain this consent, the Prosecutor General makes a submission to the Council of Judges indicating the circumstances of the criminal case, the applicable criminal law articles and requests for consent to be brought to criminal responsibility as an accused. The decision of the Disciplinary Commission on consent or disagreement on bringing a judge to criminal or administrative responsibility is not subject to appeal. The law of the Kyrgyz Republic clearly defines the procedure for bringing a judge to criminal, administrative responsibility.

[This content was automatically translated from Russian language]

Older Posts