Name of the Kyrgyz Republic

DECISION OF THE CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF THE KYRGYZ REPUBLIC

of December 16, 2020

On the case of check of constitutionality of part 5 of Article 293 of the Code of penal procedure of the Kyrgyz Republic in connection with Toktakunov Nurbek Akbarovich's address.

The constitutional chamber of the Supreme Court of the Kyrgyz Republic in structure:

the chairman - Duysheev K. A., judges Bobukeeva M. R., Zhumabayev L. P., Kasymaliyeva M. Sh., Kydyrbayev K.Dzh., Oskonbayeva E. Zh., Saalayeva Zh. I., Sharshenaliyeva Zh. A., in case of Lobanova Zh. A. secretary.,

with participation:

the addressing party - Toktakunov Nurbek Akbarovich and his representative by proxy Malik of kyza Saykal;

other persons - Childebayev Tashtemir Abazovich, the representative of the Office of the President of the Kyrgyz Republic by proxy, Iskakov Erkin Bakburovich, the representative of the Supreme Court of the Kyrgyz Republic by proxy, Alchiyev Rysbek Karagulovich, the representative of the Prosecutor General's Office of the Kyrgyz Republic by proxy, the Kurmanbayevy Aida of Maratovna, the representative of the Ministry of Justice of the Kyrgyz Republic by proxy,

being guided by parts 1 and 6 of article 97 of the Constitution of the Kyrgyz Republic, Articles 4, of 18, of 19, 37 and 42 constitutional Laws "About the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic", considered case on check of constitutionality of part 5 of Article 293 of the Code of penal procedure of the Kyrgyz Republic in proceeding in open court.

Reason for consideration of this case was Toktakunov N. A. petition.

The basis to consideration of the case was the found uncertainty in question of whether there corresponds to the Constitution of the Kyrgyz Republic part 5 of Article 293 of the Code of penal procedure of the Kyrgyz Republic.

Having heard information of the judge-speaker Kasymaliyev M. Sh. who was carrying out preparation of case for judicial session and, having researched the provided materials, the Constitutional chamber of the Supreme Court of the Kyrgyz Republic

ESTABLISHED:

In the Constitutional chamber of the Supreme Court of the Kyrgyz Republic Toktakunov N. A. petition arrived on July 2, 2019. about check of compliance of part 5 of Article 293 of the Code of penal procedure of the Kyrgyz Republic of part of 1 Article 24, to parts 1, 2, to the offer to the first part 4 Articles 26, parts 3 of article 99 of the Constitution of the Kyrgyz Republic.

According to the applicant, the challenged regulation unreasonably limits constitutional right on freedom and security of person, and also breaks the principles of presumption of innocence, competitiveness and equality of participants in legal procedure.

As Toktakunov N. A. specifies. in the address, the formulation "in exceptional cases" containing in part 5 of Article 293 of the Code of penal procedure does not reveal, its essence is not deciphered. As a result the fact of impossibility to finish legal proceedings becomes at the scheduled time the "exceptional case" allowing to prolong measure of restraint including, in the form of detention. In turn, the formulation "over one year" containing in the same regulation allows to prolong measure of restraint for vaguely long time over one year. Restriction of deadline of application of measure of restraint is provided only in pre-judicial production by part 10 of Article 117 of the Code of penal procedure.

According to the applicant, one of components of right to liberty and security of person is "the right of each arrested on criminal charge of person to legal proceedings during reasonable time or on release" as it is fixed in part 3 of article 9 of the International Covenant on Civil and Political Rights. The above-stated right in the sense is inseparably linked with "the right to be judged without unjustifiable delay", guaranteed by the Item "with" of paragraph 3 of article 14 of this Pact.

Thus, as the subject of the address, part 5 of Article 293 of the Code of penal procedure notes, allowing to prolong measure of restraint for vaguely long time over one year with the formulation "in exceptional cases" without disclosure of its content, violates the right of arrested on criminal charge of persons to legal proceedings during reasonable time or on release, and also the right to be offender without unjustifiable delay. Thereby part 5 of Article 293 of the Code of penal procedure contradicts the right to liberty and security of person guaranteed by part 1 of article 24 of the Constitution.

According to Toktakunov N. A., opportunity to prolong measure of restraint in the form of detention for vaguely long time allows bodies of crown case to put over one year pressure upon the persons accused who are in custody, possibility of their vaguely long imprisonment, forcing them thereby, to recognition of fault or to other compromises, to the detriment of the rights and freedoms, punishing them for non-recognition of the fault. At least, this opportunity, without limiting justice system to reasonable times of legal proceedings without unjustifiable delay, promotes negligent attitude of bodies of crown case to accomplishment of task of the prosecutor, and judges to ensuring justice. As a result the burden is actually assigned to persons accused to prove the innocence, and from prosecutors considerable part of burden of proof of fault on criminal case is removed. In itself unrestricted the law duration of detention forces persons accused to prove actively the innocence,

does them more susceptible and prepared for various compromises in exchange for recognition of the fault. Respectively, it as much as possible facilitates to the prosecutor accomplishment of the fault burden of proof assigned to it on criminal case.

As the applicant believes if the law limited opportunity to prolong measure of restraint for vaguely long time, ordered requirements of legal proceedings during reasonable time, guaranteed the right to be offender without unjustifiable delay, such law would stimulate crown case to more operational, dedicated work.

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