Transparency International - Kyrgyzstan took part in a meeting of the Constitutional Chamber of the Supreme Court concerning non-compliance with the requirements of the Constitution and the Criminal Code.

Constitutional Chamber of the Supreme Court was considering the case of conflicting dispositions in parts 1 and 2 of Art. 308-1 of the Criminal Code regarding the "illegal enrichment" principles, with reference to the presumption of innocence and equality of all citizens before the law, namely, Section 3, Article 16; Section 1 article 20; and Section 2 and 4 article 26 of the Constitution of the Kyrgyz Republic. According to the petitioner, this article is indicative and not completely clear, as it obliges that officials need to prove their innocence first and foremost. Due to the fact the legislative language uses the word ‘justify', which is very close in the sense to "prove" it is a direct violation of the Constitution which states that the burden of proof in a criminal case rests with the prosecutor following the principle of ‘innocent until proven guilty'. Moreover, according to the applicant, the contested provisions clearly violate the principle of equality before the law and the courts, as prescribed in the main law of the country. In particular, this article does not cover those public servants who do not fall under the category of public "officials" (which does not necessarily encompass all government employees) further complicating matters and allowing for loopholes.

Invited to this meeting by the Constitutional Chamber itself, a representative of Transparency International Kyrgyzstan submitted his comments regarding international experience of the system of declaration of assets and income of public officials, namely regarding the effectiveness of penalties for "illicit enrichment".

 

"... A citizen who wishes to implement their constitutional right to engage in some activity within the state or local authorities, voluntarily accepts the conditions, limitations and advantages, which are linked to their newly acquired legal status as a public official should comply with the relevant requirements under the statutory procedure, and this does not involve restrictions or violations of the constitutional rights of him as a citizen. Further provisions regarding the adoption of certain obligations as a public official should also be reflected in the law...

... Furthermore, the current situation in Kyrgyzstan with the reform of law enforcement in general, as well as the skill level and quality of law enforcement, contains the risk that this article of the Criminal Code can be used as a tool for selective exposure...
Another challenge would be in the implementation of this part of the Criminal Code, in our country there is a culture strong family ties and wider relationships which must also be taken into account when implementing the requirements for the declaration of income and assets... "

Whilst deliberating, the judges found that a crime would only occur when the official cannot reasonably justify a significant increase in their assets exceeding his or her legitimate income. The process of justification and proof of origin of such assets should be established outside the criminal justice system, and made a part of his or her obligations as an official holding public positions. Upon presentation of official proof of acquisition of a property, for example, this would negate the basis for bringing criminal proceedings. Accordingly, the duty of a public officer to prove a significant increase in its assets in excess of its legitimate income, is already part of his or her obligations and is carried out in the framework of his official activities.

Thus, the contested provisions of the Criminal Code, during the meeting of the Constitutional Chamber were identified as not being contrary to the Constitution.