law

Presidential Immunity v. Equality before the Law: the Case of the Kyrgyz Constitutional Chamber

Case Analysis from the Perspective of Aharon Barak’s Legal Theory

On April 18, 2018 the petition was submitted by Mr. N. Toktakunov (“the Applicant”) to the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic (“the Constitutional Chamber”) on recognition of Article 12 of the Law of the Kyrgyz Republic “On Guarantees of the Activities of the President of the Kyrgyz Republic” (“Law on Guarantees of President”) as contradicting Article 16 (3) of the Constitution of the Kyrgyz Republic (“KR”).[1]

According to Article 12(1) of the Law on Guarantees of President, the ex-president of the KR has a legal immunity: “he cannot be held criminally and administratively liable for acts or omissions committed by him during the period in which the powers of the President of the KR are exercised, and also detained, arrested, interrogated, or personally inspected”.[2]

The position of the Applicant is reasoned by the uncertain structure of the article that the ex-president has the immunity even in the event of the discovery of criminal acts committed after the end of his presidential term. That, according to the Applicant, contradicts Article 16(3) of the Constitution of the KR, which guarantees uniform and equal application of the law to all citizens, regardless of their occupation or status in society.[3]

In the case, two categories of competing rights are conflicting:

  • the constitutional provision on the equality of all before the law;
  • the right of the ex-/Head of the State for immunity from criminal and administrative liability.

According to Pr. Aharon Barak, the principle of proportionality embodies a formula involving a purpose and the means used to achieve such purpose.[4] In this essay we will hold to Barak’s 4 stages balancing analysis, and will see what result it will lead in the corresponding case.

  1. Proper Purpose

Firstly, we should identify whether there was a proper purpose in the legal provision. Particularly, this phase involves the requirement of a prima facie legitimate justification for the restriction of a fundamental or constitutional right.[5]

It could be confirmed that the provision has a legitimate aim supported by Articles 16 of Constitution of KR and Article 12 of the Law on the Guarantees of the President.

Any state can grant certain exclusive rights and privileges to separate category of persons, and thus, shows that this group is primarily important for the state and society. In particular, the state has the right to establish certain exemptions from the general order for individuals, depending on the functions performed, the protected interest and other circumstances that must be lawful and proportionate to the generally significant constitutional goals, which include the immunity of the head of state.[6]

The position of the head of state is subject to specific protection in all modern democratic states. Thereby, according to the UN Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents 1973, the heads of states are internationally protected. [7]

In this case, the goal of the legislator by providing these guarantees for the head of state was to stimulate effective, positive legal behavior of the current President of the KR, who firmly will be aware that he will not be prosecuted for his actions after the end of his presidential mandate.[8] Moreover, endowing the ex-president with legal immunity warrants with increased protection after he resigns the presidential office.

Considering all above mentioned, we can say that the limitation placed on the constitutionally protected right or fundamental right is prima facie legitimate and justified not only by internal, but also by the international legal practice.

2. Rational Connection

Further, pursuing Pr. Barak’s methodology, we should answer the question: are the means chosen by the limiting law capable of advancing the law’s underlying purpose?[9]

To point out, the means used in the corresponding case are sufficiently appropriate to achieve the above-mentioned goal of the law, and restriction of the right to equality can contribute to the achievement of the goal pursued.

Specifically, the tool of legal immunity was used as method to achieve the set objective. “Legal immunity” is a legal mean by which the state provides enhanced legal protection for a certain circle of officials performing publicly important functions on behalf of the state, and is a legal regime that establishes special, sophisticated, different from the general rules, legal procedure re legal liability. The meaning of legal immunity is to provide its holders with guarantees of immunity from unreasonable invasion on their independence, which can affect the established mode of decision-making.[10]

As a result, legal immunity should be considered as a legitimate exception from the principle of equality of all before the law in the field of legal accountability. However, legal immunity does not in any way imply that the holder obtains absolute immunity from legal responsibility for the offenses committed.[11]

Therefore, this exercise presents the evidence of a link between the means and the goal, and it can be confirmed that “the use of such means would rationally lead to the realisation of the law’s purpose”.[12]

3. Necessity

On this phase, in line with Pr. Barak, the measures undertaken should be necessary in that there were no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation.[13]

Based on the meaning and content of the Constitution of the KR, deviation from the principle of equality is possible due to the need to provide legal immunity to certain officials with constitutional status and performing publicly important functions.[14]

In this regard, the legislator, when settling this sphere of legal relations, should take into account the amount of necessary protection for a person who has stopped performing the duties of the head of state, which will, firstly, protect him from unreasonable prosecution after he resigns his powers, secondly, to ensure compliance inevitability of punishment for offenses committed by him. Otherwise, an unconditional prohibition on criminal prosecution of the ex-president would contradict the constitutional principles of equality of all before the law and the court and the inevitability of punishment for the criminal act committed.[15]

Hitherto, we can assume that the third stage of the proportionality test is fulfilled.

4. Proportionality Strictu Sensu (Balancing)

The last stage of proportionality analysis, involving the assignment of weights, has balancing as its main aim. Based on Barak, balancing assumes the existence of conflict and finally, offering a solution to the conflict by attaching a variable weight to each conflicting principle.[16]

On the final step, we infer that the immunity of the ex-president is a logical continuation and an integral element of the constitutional provisions for the awarding of legal guarantees to the current head of state. Therefore, granting legal immunity to a person who has terminated the powers of the President, operates as a legal tool in ensuring the effective functioning of the presidency institution and does not contradict the Constitution of the KR.[17]

As we can see, following Pr. Barak’s approach we come to the conclusion that the concerned article does not contradict the сonstitutional principle of equality of all before the law.

______

However, the Constitutional Chamber recognized the article as contrary to the Constitution of the KR, to the extent that the contested provision:

  • firstly, does not provide for a procedure for overcoming the ex-president’s legal immunity from legal liability for actions committed during the period of presidential term, which gives to the ex-president’s immunity an absolute character and turns it into a personal privilege;
  • second, the vagueness and inaccuracy of the formulation of the norm in relation to the extension of legal immunity to acts committed by a person already in the status of an ex-president, creates uncertainty and may lead to law enforcement issues.[18]

In order to reach balance, the legal immunity of the ex-president should have a specific legal framework. Also, the final decision to overcome it, regardless of the preliminary procedures, should be no less elaborated than deciding on the dismissal of the incumbent President. Otherwise the legal mechanism under consideration will lose its original purpose, which is to fulfill the public, constitutionally significant task of ensuring the activities of the President of the KR.[19]

In this regard, as a way of solving the conflict between appropriate rights and to exclude a possible ambiguous understanding of the responsibility of the ex-president, in parallel with Pr. Barak’s final stage, the Constitutional Chamber fairly advised that the contested norm should undergo legal normalization by adopting by the Jogorku Kenesh of the KR corresponding amendments to the Law on Guarantees of the President.[20]


All in all, my view is inclined to see 2 sides of the coin in this case:

  • on the one hand, considering political history and previous presidential experience of our homeland, when 2 ex-Presidents were deprived of their “ex-President” status, I believe that amendments adopted by Kyrgyz Parliament are more than relevant;
  • on the other hand, taking into account that there are no guarantees of the judicial independence in Kyrgyzstan, there is always a risk that the Parliament and the Prosecutor General would abuse their rights under the Article 12 against last or current Presidents.

[1] Toktakunov v. Jogorku Kenesh (Parliament) of the  Kyrgyz Republic, № Т-22х Constitutional Chamber of Supreme Court of Kyrgyz Republic (3 October, 2018) http://constpalata.kg/wp- content/uploads/2018/10/Toktakunova-N.A.-resh..pdf

[2] The Law of the Kyrgyz Republic “On Guarantees of the Activities of the President of the Kyrgyz Republic”, art. 12 (18 July, 2003) http://cbd.minjust.gov.kg/act/view/ru-ru/1278?cl=ru-ru

[3] The Constitution of the Kyrgyz Republic, art.16, § 3 (27 June 2010)  http://cbd.minjust.gov.kg/act/view/ru-ru/202913?cl=ru-ru

[4] See Aharon Barak, Proportionality: Constitutional Rights and their Limitations (2012).

[5] Barak, supra note 4, at 251.

[6] Toktakunov, supra note 1, at 4.

[7] The United Nations Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, art. 1 § a (14 December 1973) http://legal.un.org/ilc/texts/instruments/english/conventions/9_4_1973.pdf

[8] Toktakunov, supra note 1, at 5.

[9] Barak, supra note 4, at 305.

[10] Toktakunov, supra note 1, at 10.

[11] Id. at 10.

[12] Barak, supra note 4, at 303.

[13] Id. at 3.

[14] Toktakunov, supra note 1, at 9.

[15] Id. at 14.

[16] Barak, supra note 4, at 346-347.

[17] Toktakunov, supra note 1, at 13.

[18] Id. at 13.

[19] Id. at 14.

[20] Id. at 14.

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