NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of March 2, 2000

According to the petition of Kyrgyzkilem joint-stock company for recognition to unconstitutional and inappropriate Articles 4, 19, 38, 79, to Item 2 of Article 83 and Item 1 of article 86 of the Constitution of the Kyrgyz Republic of the law-enforcement practice established by determination of judicial board on civil cases of the Supreme Court of the Kyrgyz Republic of November 25, 1998 on case on the claim Zheng of Nikolay, Zheng of Boris, Zheng Alexandra, Zheng Nadejda to Zheng to Robert Nikolaevich, Zhayylsky district finance division and Kyrgyzkilem joint-stock company about property exception of the act of the inventory

Constitutional court of the Kyrgyz Republic as a part of the 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 Alymkulov M. S., the parties: the special administrator of Kyrgyzkilem joint-stock company Omurakunov Mukambet Karybekovich and the representative of this society Sultanbekov Ilya Esenovich who is acting on the basis of the power of attorney of November 16, 1999, the signed special administrator of Kyrgyzkilem joint-stock company, the representative of the Supreme Court of the Kyrgyz Republic, the judge Azhibraimova Ayzhamal Musuratbekovny who is acting on the basis of the power of attorney of December 3, 1999, the signed Chairman of the Supreme 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", article 11 of the Law "About the Constitutional Legal Proceedings of the Kyrgyz Republic", considered in proceeding in open court the petition of Kyrgyzkilem joint-stock company for recognition to unconstitutional and inappropriate Articles 4, of 19, of 38, of 79, to Item 2 of Article 83 and Item 1 of article 86 of the Constitution of the Kyrgyz Republic of the law-enforcement practice established by determination of judicial board on civil cases of the Supreme Court of the Kyrgyz Republic of November 25, 1998 on case on the claim Zheng N., Zheng B., Zheng A., Zheng N. to Zheng R. N., Zhayylsky district finance division and Kyrgyzkilem joint-stock company about property exception of the act of the inventory.

Having heard the report of the judge Esenaliyev K. E., speeches of the special administrator of Kyrgyzkilem joint-stock company Omurakunov M. K. and representative of this society Sultanbekov I. E., representative of the Supreme Court of the Kyrgyz Republic, judge Azhibraimova A. M., having researched case papers, the Constitutional court of the Kyrgyz Republic

ESTABLISHED:

In the Constitutional court of the Kyrgyz Republic on November 19 and on November 29, 1999 the petition of Kyrgyzkilem joint-stock company for recognition to unconstitutional and inappropriate Articles 4, of 19, of 38, of 79, to Item 2 of Article 83 and Item 1 of article 86 of the Constitution of the Kyrgyz Republic of the law-enforcement practice established by determination of judicial board on civil cases of the Supreme Court of the Kyrgyz Republic of November 25, 1998 on case on the claim Zheng N., Zheng B., Zheng A., Zheng N. to Zheng R. N., Zhayylsky district finance division and Kyrgyzkilem joint-stock company about property exception of the act of the inventory arrived.

The following arguments are given to reasons for the petition. Having considered case according to the procedure of supervision, the judicial board on civil cases of the Supreme Court of the Kyrgyz Republic as a part of three judges, determination of November 25, 1998, cancelled determination of judicial board on civil cases of the Chuya regional court of August 12, 1998 and upheld the decision of Zhayylsky district court of July 7, 1998 on the specified case.

The judicial board on civil cases of the Supreme Court of the Kyrgyz Republic violated requirements of Item 2 of article 83 of the Constitution of the Kyrgyz Republic which determined that only the Supreme Court of the Kyrgyz Republic exercises supervision of judicial activities regional Bishkek city, district, city and public courts of the Kyrgyz Republic, consideration of the case according to the procedure of supervision, violated requirements of Item 2 of article 79 of the Constitution of the Kyrgyz Republic which determined that courts of the Kyrgyz Republic are the Constitutional court of the Kyrgyz Republic, the Supreme Court of the Kyrgyz Republic, the Supreme Arbitration Court of the Kyrgyz Republic and local courts (courts of areas, the city of Bishkek, areas, cities, Arbitration Courts of areas and the city of Bishkek, military courts). Creation and organization of emergency, special courts and positions of judges is not allowed. Actually judicial board the actions founded and created emergency or special court.

The judicial board on civil cases of the Supreme Court of the Kyrgyz Republic, adoption of the specified decision, violated the rights to judicial protection, protection of the property rights to property and their equal legal protections guaranteed by Item 2 of Article 38, articles 4 and 19 of the Constitution of the Kyrgyz Republic.

In judicial session special administrator of Kyrgyzkilem joint-stock company Omurakunov M. K. and representative of this society Sultanbekov I. E., ask to satisfy the petition.

Representative of the Supreme Court of the Kyrgyz Republic, judge Azhibraimova A. M. agreed with petition arguments.

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 Zhayylsky district court of July 7, 1998 excludes from the inventory from arrest of July 25, 1994 the house two-storeyed, unfinished of 8 rooms with constructions, Zheng Gui-Bon estimated for 10 thousand som, located down the street Garden 63, Kara-Balta, belonging. Zheng N., Zheng B., Zheng A., Zheng N. is prolonged the term of acceptance of heritable property.

This judgment is cancelled by determination of judicial board on civil cases of the Chuya regional court of August 12, 1998 and case is sent for new trial in the same court.

The judicial board on civil cases of the Supreme Court of the Kyrgyz Republic determination of November 25, 1998 cancelled the specified determination of the Chuya regional court and upheld the decision of Zhayylsky district court of July 7, 1998.

The constitutional court of the Kyrgyz Republic considers that the judicial board on civil cases of the Supreme Court of the Kyrgyz Republic is not the constitutional judicial body and its activities contradict Items 1 and 2 of article 79 of the Constitution of the Kyrgyz Republic according to which justice in the Kyrgyz Republic is performed only by court, and courts of the Kyrgyz Republic are the Constitutional court of the Kyrgyz Republic, the Supreme Court of the Kyrgyz Republic, the Supreme Arbitration Court of the Kyrgyz Republic and local courts (courts of areas, the city of Bishkek, areas, cities, Arbitration Courts of areas and the city of Bishkek, military courts). Creation and organization of emergency, special courts and positions of judges is not allowed.

Consideration of the case according to the procedure of supervision, the judicial board on civil cases of the Supreme Court of the Kyrgyz Republic violated the requirement of Item 2 of article 83 of the Constitution of the Kyrgyz Republic the right of implementation of supervision of judicial activities regional, Bishkek city, district, city and public courts of the Kyrgyz Republic, provided to the Supreme Court of the Kyrgyz Republic and determination of November 25, 1998 established unconstitutional law-enforcement practice.

Justice implementation by unconstitutional body violates the constitutional rights of Kyrgyzkilem joint-stock company and its shareholders on providing with justice and judicial protection of all rights and freedoms set by the Constitution and the laws guaranteed by item 4 of Article 15 and Item 2 of article 38 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 79 unconstitutional and inappropriate to Items 1 and 2 and Item 2 of article 83 of the Constitution of the Kyrgyz Republic the law-enforcement practice established by determination of judicial board on civil cases of the Supreme Court of the Kyrgyz Republic of November 25, 1998 on case on the claim Zheng of Nikolay, Zheng of Boris, Zheng Alexandra, Zheng Nadejda to Zheng to Robert Nikolaevich, Zhayylsky district finance division and Kyrgyzkilem joint-stock company about property exception of the act of the inventory.

Satisfy the petition of Kyrgyzkilem joint-stock company.

2. Determination of judicial board on civil cases of the Supreme Court of the Kyrgyz Republic of November 25, 1998 about cancellation of determination of judicial board on civil cases of the Chuya regional court of August 12, 1998 on this case, leaving in force of the decision of Zhayylsky district court of July 7, 1998 and satisfaction of the supervising claim Zheng A. is not subject to 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", "Erkin Too" and "Our newspaper".

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