NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of March 2, 2001

According to the petition of joint Kyrgyz Russian-Cyprian limited liability company "AYR-Aviat Company" for recognition of Article unconstitutional and inappropriate to item 4 79, to Item 3 of Article 84 and article 87 of the Constitution of the Kyrgyz Republic of the law-enforcement practice established by the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of November 9, 1999 on case on the claim of AYR-Aviat Company joint business to the State tax authorities under the Ministry of Finance of the Kyrgyz Republic about recognition invalid notifications of August 7, 1998 on the amount 326003 som of August 7, 1998 on the amount of 26446 som and of August 10, 1998 on the amount of 116370 som

Constitutional court of the Kyrgyz Republic in structure: Chairman Bayekova Ch. T., vice-chairman Sutalinov A. A., P.N., Kenensariyev A. S. sudeydryzhaka., Togoybayeva Zh. Zh., Esenaliyeva K. E. and Esenkanova K. E.,

with participation of the court session secretary Soodanbekov U. S., parties: the CEO of joint Kyrgyz Russian-Cyprian limited liability company "AYR-Aviat Company" Turdumatov Karabaya, the representative of this society Zhdanova Oksana Nikolaevna who is acting on the basis of the power of attorney of September 13, 2000 and the representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin Vladimir Ivanovich who is acting on the basis of the power of attorney of October 3, 2000, the signed Chairman of the Supreme Arbitration Court of the Kyrgyz Republic, being guided by article 82 of the Constitution of the Kyrgyz Republic, article 13 of the Law "About the Constitutional Court of the Kyrgyz Republic" and article 11 of the Law "About the Constitutional Legal Proceedings of the Kyrgyz Republic", considered in proceeding in open court the petition of joint Kyrgyz Russian-Cyprian limited liability company "AYR-Aviat Company" for recognition of Article unconstitutional and inappropriate to item 4 79, to Item 3 of Article 84 and article 87 of the Constitution of the Kyrgyz Republic of the law-enforcement practice established by the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of November 9, 1999 on case on the claim of AYR-Aviat Company joint business to the State tax authorities under the Ministry of Finance of the Kyrgyz Republic about recognition invalid notifications of August 7, 1998 on the amount 326003 som of August 7, 1998 on the amount of 26446 som and of August 10, 1998 on the amount of 116370 som.

Having heard the report of the judge Dryzhak P. N., performance: CEO of joint Kyrgyz Russian-Cyprian limited liability company "AYR-Aviat Company" Turdumatov K., representative of this society Zhdanova O. N., representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I. and having researched case papers, the Constitutional court of the Kyrgyz Republic

ESTABLISHED:

In the Constitutional court of the Kyrgyz Republic the petition of joint Kyrgyz Russian-Cyprian limited liability company "AYR-Aviat Company" for recognition of Article unconstitutional and inappropriate to item 4 79, to Item 3 of Article 84 and article 87 of the Constitution of the Kyrgyz Republic of the law-enforcement practice established by the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of November 9, 1999 on case on the claim of AYR-Aviat Company joint business to the State tax authorities under the Ministry of Finance of the Kyrgyz Republic about recognition invalid notifications of August 7, 1998 on the amount 326003 som of August 7, 1998 on the amount of 26446 som and of August 10, 1998 on the amount of 116370 som on September 15, 2000 arrived.

The following arguments are given to reasons for the petition. The specified resolution the Supreme Arbitration Court of the Kyrgyz Republic cancelled the decision of Arbitration Court of the city of Bishkek of January 20, 1999 about satisfaction of the claim of AYR-Aviat Company joint business and the resolution of appellate instance of Arbitration Court of the city of Bishkek of March 4, 1999 about leaving of this decision without change. Having made the new decision, it refused the claim to joint Kyrgyz Russian-Cyprian limited liability company "AYR-Aviat Company". This resolution the Supreme Arbitration Court of the Kyrgyz Republic established the unconstitutional law-enforcement practice which is not corresponding to item 4 of Article 79, to Item 3 of Article 84 and Item 1 of article 87 of the Constitution of the Kyrgyz Republic, having violated constitutional rights of founders of this society on property, providing with justice and the judicial protection of the rights and freedoms fixed by item 4 of Article 15, Items 1, 2 Articles 16, Article 19 and Item 2 of article 38 of the Constitution of the Kyrgyz Republic as made the new decision which took legal effect immediately and not subject to appeal.

At the same time it was guided by the unconstitutional Articles 154, 157, 158 and 161 Arbitral Procedure Codes of the Kyrgyz Republic providing the procedure of hearing of cases by judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic, having broken the principle of subordination of court of the Constitution and to the law set by item 4 of article 79 of the Constitution of the Kyrgyz Republic. The specified Articles of the Arbitral Procedure Code of the Kyrgyz Republic are acknowledged as the solution of the Constitutional court of the Kyrgyz Republic of February 24, 2000 unconstitutional and their action is cancelled.

In judicial session the CEO of joint Kyrgyz Russian-Cyprian limited liability company "AYR-Aviat Company" Turdumatov K. and the representative of this society Zhdanova O. N. ask to satisfy the petition.

Representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I., without having agreed with petition arguments, asks to stop the constitutional legal proceedings.

Constitutional court of the Kyrgyz Republic, having discussed arguments of the parties and having researched case papers, considers the petition subject to satisfaction on the following bases.

From the provided materials it is visible that the decision of Arbitration Court of the city of Bishkek of January 20, 1999 satisfies the claim of AYR-Aviat Company joint business to the State tax authorities under the Ministry of Finance of the Kyrgyz Republic, notifications of August 7, 1998 on the amount 326003 som, of August 7, 1998 on the amount of 26446 som and of August 10, 1998 on the amount of 116370 som, all on the amount of 468819 som are acknowledged invalid.

This judgment is left by the resolution of appellate instance of Arbitration Court of the city of Bishkek of March 4, 1999 without change, and the claim of the State tax authorities under the Ministry of Finance of the Kyrgyz Republic without satisfaction.

The Supreme Arbitration Court of the Kyrgyz Republic the resolution of November 9, 1999, and the resolution of appellate instance of Arbitration Court of the city of Bishkek of March 4, 1999 on this case cancelled the decision of Arbitration Court of the city of Bishkek of January 20, 1999, having made the new decision, refused the claim to joint Kyrgyz Russian-Cyprian limited liability company "AYR-Aviat Company" about recognition invalid notifications of the State tax authorities under the Ministry of Finance of the Kyrgyz Republic of August 7, 1998 on the amount 326003 som, of August 7, 1998 on the amount of 26446 som and of August 10, 1998 on the amount of 116370 som.

Accepting the specified resolution, the Supreme Arbitration Court of the Kyrgyz Republic was guided by Articles 150, of 151, of 154, of 156, of 157, Item 3 of Article 158 and Article 161 of the Arbitral Procedure Code of the Kyrgyz Republic.

By the time of acceptance by the Supreme Arbitration Court of the Kyrgyz Republic of the resolution disputed regarding constitutionality, in the Arbitral Procedure Code of the Kyrgyz Republic in general there were no regulations determining procedure for hearing of cases and limits of powers of the Supreme Arbitration Court of the Kyrgyz Republic in supervising instance.

Afterwards, Articles 154, of 157, of 158, 159 and 161 Arbitral Procedure Codes of the Kyrgyz Republic providing procedure for hearing of cases and decision making by supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic were acknowledged unconstitutional, their action was cancelled by the solution of the Constitutional court of the Kyrgyz Republic of February 24, 2000 according to the petition of joint commercial Industrial Construction Bank of the Kyrgyz Republic.

Being guided by unconstitutional regulations of the Arbitral Procedure Code, the Supreme Arbitration Court of the Kyrgyz Republic violated requirements of item 4 of article 79 of the Constitution of the Kyrgyz Republic, the binding judge to submit only to the Constitution and the law and Item 1 of article 87 of the Constitution of the Kyrgyz Republic prohibiting application by court of the regulations contradicting the Constitution of the Kyrgyz Republic.

Implementation by the Supreme Arbitration Court of the Kyrgyz Republic of the constitutional powers fixed by Item 3 of article 84 of the Constitution of the Kyrgyz Republic shall not break the constitutional guarantees of protection of the rights of citizens.

According to Item 2 of article 88 of the Constitution of the Kyrgyz Republic protection is not violated right of person at any stage of process of consideration of legal case. Indispensable condition of right of defense in court is opportunity availability at citizens of the right to appeal of the decision made by court on the substance of dispute.

The Supreme Arbitration Court of the Kyrgyz Republic the resolution of November 9, 1999, having made the new decision, unliable to appeal, broke the constitutional guarantees of the rights of the citizens for protection at any stage of process of consideration of legal case who are founders of joint Kyrgyz Russian-Cyprian limited liability company "AYR-Aviat Company", stipulated in Item 2 Articles 38 and Item 2 of article 88 of the Constitution of the Kyrgyz Republic.

Based on stated and being guided by the subitem 8 of Item 3 of article 82 of the Constitution of the Kyrgyz Republic, articles 13 and 14 of the Law "About the Constitutional Court of the Kyrgyz Republic", articles 10, of 11, of 13, of 14, of 24, of 25, 29 and 30 Laws "About the Constitutional Legal Proceedings of the Kyrgyz Republic", the Constitutional court of the Kyrgyz Republic

DECIDED:

1. Recognize Article unconstitutional and inappropriate to item 4 79, to Item 3 of Article 84 and Item 1 of article 87 of the Constitution of the Kyrgyz Republic the law-enforcement practice established by the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of November 9, 1999 on case on the claim of AYR-Aviat Company joint business to the State tax authorities under the Ministry of Finance of the Kyrgyz Republic about recognition invalid notifications of August 7, 1998 on the amount 326003 som of August 7, 1998 on the amount of 26446 som and of August 10, 1998 on the amount of 116370 som.

Satisfy the petition of joint Kyrgyz Russian-Cyprian limited liability company "AYR-Aviat Company".

2. The resolution of the Supreme Arbitration Court of the Kyrgyz Republic of November 9, 1999 is not subject to execution about: recognition of joint Kyrgyz Russian-Cyprian limited liability company "AYR-Aviat Company" by the legal successor of joint business of AYR-Aviat Company limited liability company; to cancellation of the decision of Arbitration Court of the city of Bishkek of January 20, 1999 and the resolution of appellate instance of Arbitration Court of the city of Bishkek of March 4, 1999 in the matter of No. 514/8; adoption of the new decision on refusal in the claim to AYR-Aviat Company limited liability company about recognition invalid notifications of the State tax authorities under the Ministry of Finance of the Kyrgyz Republic of August 7, 1998 on the amount 326003 som, of August 7, 1998 on the amount of 26446 som and of August 10, 1998 on the amount of 116370 som; collection from the account of AYR-Aviat Company limited liability company for benefit of the state tax authorities under the Ministry of Finance of the Kyrgyz Republic of 750 (seven hundred fifty) som of the state fee and issue of writ of execution.

3. The final decision, is not subject to appeal. Surely to execution by all state bodies, officials and citizens.

4. The decision to publish in "Sheets of Jogorku Kenesh of the Kyrgyz Republic", newspapers: "Tuusu's Kyrgyz", "Word of Kyrgyzstan" and "Erkin Too".

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