An aksakal court docket

In the months since my last post, I’ve been translating documents from Kyrgyzstan’s Courts of Elders. One of the most fascinating so far is one judge’s summary of a year’s worth of cases in his village of about 5,000 residents. His list is representative of the dockets of many village Courts of Elders, as it is of Kyrgyz village life. I’ve removed the names and changed the initials of the parties involved but otherwise left the materials unchanged. Of the 16 cases that the court heard in 2012,

  • 6 involved undocumented transactions, primarily loans of cattle or cash or failures to render promised services. Because the claimants lack documentation, their cases would likely be thrown out in a formal court proceeding.
  • Several involved use of communal resources, such as irrigation streams, pastures and farmland.
  • The court tended to impose cash fines for breaches of a municipal ordinance but not to pay back a damaged private party. Instead, private claimants would receive a court-mediated agreement covering shared use of resources, fulfillment of a contract or a simple apology where appropriate.
  • Three cases resulted in forwarding the dispute to another justice institution, whether the police or district court.

Taken as a whole, the cases demonstrate the procedural rule-bending of the Courts of Elders: their multifaceted and time intensive evidence-gathering, openness to hearing cases that would be barred in a formal court (such as those without evidence or arising years after the dispute in question took place), encouragement of negotiation and acceptance of settlements markedly divergent from actual damages. The docket also illustrates the court’s readiness to engage formal law and formal legal institutions. This Court of Elders seems to be trying to navigate a middle ground between flexible, highly contingent dispute resolution tailored to its village’s residents and adherence to uniform, formal law where possible. The left column is a translation of cases, while the right column contains some of my notes and explanations.

Aksakal Court of Village of K—, Cases heard in 2012
  • On Feb. 6, 2012 T brought a complaint against M. [M] took 1,700 som [from T], saying that he’d bring [T] the “Winter Mountain” pasture [registration]. Up to this time, he still hasn’t given it.
  • On the same day – Feb. 6, 2012 – the same M took 3,000 som from B, promising that he would give her [the registration for] B.T. pasture. When I followed up with the complainant, she said she had gotten it.
  • Undocumented transactions: payment for pasture access

Context: after the fall of the Soviet Union, broad swaths of pasture previously owned by collective farms devolved to the Kyrgyz state. Municipal governments now register these lands to specific users each year and collect fees and taxes in return. It sounds like M sold T his pasture access permit, but failed to deliver the documents that would make the agreement effective.

  • T wrote a complaint against C. In 2007, С took a mare, saying that he would breed it. From 2008 to 2009, it gave birth to two foals. In 2010, C gave T a female kid [baby goat], saying that he had thereby escaped any duty to give back the mare. After reviewing the case, the Court required C to give T an additional 1.5 hectares of land and 1 calf by September.
  • Undocumented transaction: loan of cattle (mare)
  • Dispute ongoing for 4 years before case is initiated (initial dispute: failure to give back mare in 2008; escalation in 2010 with renunciation of debt after inferior payment)
  • Remedies: negotiated, not strictly equivalent to complainant’s loss (1.5 hectares of land and 1 calf plus the kid for 1 mare)
  • A submitted a complaint against S. In the complaint, A says that S refuses to pay him back 1,700 som. A’s son in law and daughter acted as witnesses, saying that their father’s complaint was unfounded and that he made his complaint while drunk.
  • Undocumented transaction claimed: cash loan
  • Witness testimony used in absence of documentation
  • Remedies: none; complaint was deemed to be false

 

  • On Mar. 25, 2012 we received a complaint from S. T took one ram [from S], saying that he would secure an army certification for S’s eldest son. But he [S’s eldest son] has received no army certification. 10 years have passed. Without the army certification, he cannot enter university or work. At court, T said he would complete the certification himself.

 

  • Undocumented transaction: cash for future services
  • Remedies: public agreement to fulfill the services as promised, no compensation for the 10 year delay (presumably this was a negotiated resolution)

Context: All male citizens of Kyrgyzstan must serve in the army. After serving, they receive a certification. Some instead pay (bribes) for certification, without having served. This aksakal court did not raise the unlawfulness of the underlying oral contract to purchase army certification, instead enforcing specific performance.

  • In Sep. 2011 J submitted a complaint against M. This Court reviewed and threw out the case several times at each of its meetings. He maintained the case up to April 17 [2012]. [By law] we were required to forward the case on to the district court.
  • Formal law involvement: case forwarded to the formal court despite aksakals’ view of its lack of merit. An example of aksakals acting out of their self-perceived duty to follow the formal law, though their 8-month delay in forwarding the case contravened the Law on Aksakal Courts.
  • On Apr. 28, 2012, M, T and V wrote a complaint against K. The complaints falsely claimed that their grandfather sold his house without consulting them. According to the relevant documents with the village government, AA [T’s brother] is the heir to the house. The documents on which we base our decision include the village government decisions of Jun. 5 and Jul. 24, 2004, stating that AA was heir, and on the notarized property registration of 2006.
  • Documented transaction: property inheritance
  • Formal law involvement: official government documentation upheld
  • Remedies: aksakal court issues a decision on the merits, based on official government documentation


  • I, M, B, K, Y, S, N and NY submitted a complaint against D. In it, they complain that he is not allowing water to reach their crops. The stream runs about 15-20 meters from the complainants’ house, with D’s house in between. They say that D says that his house is cracking [from water seeping into the ground and destroying the house foundations], and that he refuses to account for their needs. D says that he is alone in this world. What can be done with his salary from the village government.
  • Irrigation / property dispute
  • Remedies: outcome is unclear, appears that the respondent may be asked to compensate complainants out of his salary

 

 

 

  • On Aug. 7, 2012 B submitted a complaint against D. The two are brothers. Their fight has been ongoing since 2006. After he submitted his complaint, the two of us went to the police inspector. The police inspector said that the two brothers had resolved the dispute between themselves.
  • Category of dispute unspecified
  • Formal law involvement: case forwarded to the police

 

 

  • Last year and Sep. 2, 2012, B submitted a complaint. When B went to collect his cow, K’s sons hit him. We invited the boys’ parents to Court and the boys wrote a letter promising not to commit such disorderly conduct again.
  • Disorderly conduct by minors
  • Remedies: written promise to cease behavior, parents brought to court
  • On Aug. 29, 2012, A submitted a complaint against M. A grew barley on the near side of the stables in the village pasture. Once the barley had grown, M’s horse and sheep ate it. I, along with the Court members X and Y, went to look. We levied a 2,000 som fine against him for not taking his animals to “S. pasture” [a high mountain pasture] as required by the village government, and had him write a letter promising not let them enter [A’s field] again.

 

 

 

  • Property, community herding obligations dispute
  • Aksakal evidence gathering as a group, travelling to disputed premises to verify complaint
  • Remedies: fine levied against respondent for his breach of municipal ordinance [and paid to municipality], no compensation to complainant apart from a written promise to cease behavior

Context: Every year, each village requires shepherds to take their herds from the village fields to the mountain pastures by a certain date. Those who fail to remove their animals – and thus place a higher burden on village resources – are fined if their breach is discovered.

  • On Oct. 16, 2012 J wrote a complaint against S. In it, he writes that S had his cattle graze on land that J had rented. Once we came to the truth, S’s [documents] are in the wrong. It’s not J but other people who have the land below S’s stream. The people pay taxes on it. Seeing as you two [J and S] say differently, I’ll tell the mayor that the people who are currently occupying that land can’t stay and have to move by May 10.
  • Property / land use dispute
  • Judge’s notes are too sparse to understand the content of the case; the most that can be said is that formal land registrations were key to the outcome

 

 

  • On Oct. 20, 2012 D submitted a complaint against A. Because: A failed to properly care for D’s animals as part of his communal herd, and some of them were eaten by a wolf. Specifically, 4 of D’s mules and 4 of his rams were eaten. We invited A to court and requested that he pay D 1 sheep and 1 lead goat [a special castrated goat with the ability to lead a herd]. A promised to pay.

 

 

 

  • Failure to (properly) fulfill a service contract
  • Respondent freely admits own guilt
  • Remedies: negotiated, not equivalent to complainant’s loss but likely the most that the respondent was able to pay, payment in-kind rather than cash

Context: Many families lack the expertise or time to bring their own herds to mountain pasture. Others lack money and/or land. Some thus pay others to care for their animals; joint agreements among multiple families to use a single herder can help overcome problems of economies of scale. The respondent in this case is one such hired herder.

  • On Nov. 12, 2012, D submitted a complaint against J. In 2009, J took D’s stallion, saying he would give back a pregnant mare. From 2010-2011 J gave two foals. Then when J went with the mare, D refused to take it saying it was a heifer. When J went again with the mare, E intervened and said that he would take it to D. Apparently E and the mare’s owner [J] agreed to deal with the problem. I made E promise in writing to give a mare to D.
  • Undocumented transaction: cattle swap / loan
  • Aksakal Court is happy to outsource the dispute resolution to an intervening third party; judges express no sense of a requirement/duty that the case be heard in the aksakal forum in which it was initiated

 

 

  • On Jul. 23, 2012, S wrote a complaint against T, saying that he won’t give S necessary access to a road. All of the court members went to the land to investigate. Indeed, S has not been able to access his weed-covered land even with a mule-drawn cart. And T has planted potatoes on the disputed land. But ultimately we cannot resolve this dispute. We told S to put his harvest by the bridge over the stream, and then to go to the government register and properly register his land use.
  • Property / land use dispute
  • Aksakal evidence gathering as a group, first-hand investigation of the circumstances alleged in the complaint
  • Formal law involvement: Aksakal Court feels this case to be beyond its powers, as it apparently relies on official land registrations
  • Resolution: Aksakal court advises the complainant on how to reach his ultimate goal (finding land for his crops) and legal advice (registration with local government)
  • On Oct. 9, 2012, B submitted a complaint against S regarding a stable. When L was alive, he regularly used the stable. Afterwards, his wife took ownership of the stable, paid taxes on it, and according to documents in the government registry later sold it to M’s son A. The registry was notarized. We reviewed the receipt of sale. But because the two sides could not be reconciled, we sent the case to the district court for review.
  • Property / inheritance dispute
  • Formal law involvement: (1) aksakals consult both the official land registry and tax receipts to determine legal ownership, (2) forwarded to the district court

 

 

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