ODIHR Legal Reviews, Assessments
Variety of useful resources and tools prepared by ODIHR to support legal reform in OSCE participating States. It includes legal reviews of draft and exisiting national legislation and assessments of legislative process.
This Opinion analyses the draft Law of the Kyrgyz Republic on Amendments and Addenda to Some Legal Acts against the background of its compatibility with relevant international standards and OSCE commitments. It focuses mainly on this draft Law, and thus does not constitute a full and comprehensive review of all available framework legislation touching on freedom of association in the Kyrgyz Republic. In light of the short notice given in the request for legal review (due to the initial date of the parliamentary hearing), it has not been possible to carry out a fact-finding mission to the Kyrgyz Republic, and there thus have been no opportunities to discuss the Draft Law and its background with the authorities and civil society in the Kyrgyz Republic. For this reason, this opinion is an interim one based on a preliminary, abstract assessment of the Draft Law. It might be revised, once exchanges of views have taken place with the authorities and civil society of the Kyrgyz Republic.
This Opinion is based on an unofficial English translation of the draft Law. Errors from translation may result.
OSCE/ODIHR and the Venice Commission would like to make mention that this Opinion is without prejudice to any written or oral recommendations and comments to the Law or related legislation that OSCE/ODIHR and the Venice Commission may make in the future.
The Opinion welcomes the initiative of the Kyrgyz Republic to reform its NHRI legislation and notes a number of positive aspects, including the explicit reference to the Ombudsperson’s independence, the high standing of the Ombudsperson in the country and obligations to support the Ombudsperson’s office, the broad human rights mandate, and the institution’s human rights protection functions. At the same time, the Opinion recommends that certain aspects be addressed to guarantee the full independence of the Ombudsperson in line with the UN Paris Principles, including by providing a clear, transparent and participatory merit-based selection and appointment procedures for the NHRI’s senior leadership (Ombudsperson and deputies), revising the grounds and process for dismissal of the Ombudsperson and deputies and providing for the functional immunity to the Ombudsperson’s staff.
While noting some positive features of the Draft Law, particularly with respect to the prohibition of censorship and of media monopolization as well as guarantees of journalistic freedoms, the Joint Opinion concludes that a number of provisions raise concerns, as they may not correspond to internationally recognized freedom of expression standards and good practice in the OSCE region. Most notably, the regulatory system contemplated by the Draft Law fails to take into account the differences between the print and broadcast sectors and the Internet, in line with international recommendations and good practices. In particular, the press and online media should be excluded from the scope of compulsory registration; a voluntary registration or notification procedure for press and online outlets could be proposed instead, which could provide for additional benefits for the registered media outlets. Moreover, certain content restrictions proposed in the Draft Law are problematic from the point of view of freedom of expression since they do not appear to pursue a legitimate aim and/or are not formulated in a clear and precise manner. Additionally, the Draft Law includes provisions that could restrict the media’s ability to operate independently and investigate important issues by imposing stringent registration requirements on all mass media outlets. The Draft Law also does not introduce an independent media regulatory body; instead media regulation is fully concentrated under government bodies.
The Opinion considers that overall, the Rules of Procedure of the Jogorku Kenesh (RoP) appear to be quite comprehensive, and cover issues ranging from the roles of MPs, factions and committees to procedural matters, including the legislative process. At the same time, a number of aspects could be improved, especially to guarantee a more prominent role for the Jogorku Kenesh and its bodies in carrying out their core functions of oversight and representation. In particular, the provisions pertaining to the parliamentary oversight could be enhanced to make the process more transparent, effective and powerful. Similarly, the RoP would benefit from improvements for ensuring more open, transparent, effective and inclusive public participation and expert involvement in public consultation processes, both in the context of law-making and exercise of oversight functions. In addition, number of provisions on factions and political groups, role of the opposition, as well as on recalling parliamentary mandates would benefit from revision to ensure compliance with international human rights standards and OSCE commitments, though noting that this may also require amending the Constitution for that purpose, as underlined in the 2021 Joint Opinion. The RoP could also be improved with a view to insert more collegial decision-making rather than concentrating such powers in the hands of the Speaker of the Parliament, as well as to ensure a gender and diversity perspective throughout the RoP.
OSCE/ODIHR welcomes the initiative of the Kyrgyz Migration Service to seek international expertise in relation to the international obligations on non-citizens within the territory of a state and to nationals who are abroad in times of crisis administration. These subjects are relevant during all crisis situations, but have become particularly relevant during the COVID-19 pandemic. The Note provides an overview of the relevant international legal obligations of states to migrants during times of crisis, focusing primarily on international human rights law. The Note elaborates on possible derogations from human rights obligations, but underscores the utmost importance of such measures being exceptional, temporary, prescribed by law and proportionate as outlined in the Copenhagen Document (1990) and other international standards.
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