The Constitutional Court of Kyrgyzstan has reviewed a petition filed by the lawyer of former president Kurmanbek Bakiyev and issued its opinion.
Earlier, lawyer Ikramidin Aytkulov asked the Constitutional Court to assess certain provisions of the Criminal Procedure Code for their compliance with the Constitution in the case against the deposed head of state Kurmanbek Bakiyev.
The lawyer did not challenge the verdicts themselves, but rather the constitutionality of the Criminal Procedure Code norms, which were applied when Bakiyev was brought to criminal responsibility and when decisions were made on cases against him.
In particular, the lawyer believes that the lack of the possibility of reviewing a sentence in absentia in the appellate and cassation procedure with the direct participation of the convicted person violates the constitutional right to a fair trial, restoration of violated rights by all means provided by law, as well as the principle of equality and adversarial nature of the parties in legal proceedings.
The Constitutional Court of the Kyrgyz Republic believes that the use of criminal prosecution in absentia, including the filing of charges in absentia and subsequent referral of the case to court, is permissible, but in strictly defined cases.
"These cases must be due to the fact that the person intentionally evades justice and purposefully left the Kyrgyz Republic, and the exhaustive measures taken by the competent authorities, including international legal mechanisms for his extradition, have proven ineffective.
Thus, proceedings in absentia do not represent an arbitrary element of criminal proceedings, but, on the contrary, are an exceptional tool for protecting the public interest in ensuring law and order and the inevitability of punishment. At the same time, a verdict in absentia from a court of first instance allows for the consolidation of all evidence and testimony, preventing their loss over time, as well as the timely protection of the rights and interests of victims. In addition, it performs an important preventive function, forming in everyone, including a person evading justice, an awareness of the inevitability of punishment. In addition, the presence of a court sentence significantly increases the possibility of involving international institutions to apprehend the accused,” the Constitutional Court of the Kyrgyz Republic said in its conclusion.
At the same time, the Constitutional Court noted that, despite the indisputable importance of the purpose of proceedings in absentia, one must not forget that even if the state provides guarantees, including the right to defense through the participation of a lawyer, these guarantees cannot fully compensate for the absence of the accused.
Only his personal presence at the court hearing can ensure genuine competition and equality of the parties, the opportunity to assess the circumstances of the case and evidence from the point of view of the position and arguments of the accused himself.
"Accordingly, any person convicted in absentia, subject to arrival in the territory of the Kyrgyz Republic, regardless of whether he voluntarily decided to appear before the court or whether this was the result of the work of competent authorities, should have a real opportunity to review the case with his direct participation.
Only such legal regulation demonstrates commitment to the principles of the rule of law and guarantees of fair justice, and is also fully consistent with international standards and the sustainable practice of most democratic states,” the judges of the Constitutional Court of the Kyrgyz Republic believe.
It should be noted that Ikramidin Aitkulov stated that he does not challenge the legality of the sentences handed down, but only their constitutionality.
At the same time, he agrees that his actions are aimed at overturning the sentence, "if the Constitutional Court rules in our favor."
The lawyer also previously confirmed that Kurmanbek Bakiyev wants to come to Kyrgyzstan.
