NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of December 4, 2000

According to the petition of the Kyrgyz union of consumer societies and cooperatives for recognition unconstitutional and inappropriate to Articles 4, 15, 19, 38, 84 and 88 Constitutions of the Kyrgyz Republic of the law-enforcement practice established by the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of November 24, 1999 on case on the claim of Association of cooperatives of the Kyrgyz Republic to Zhayylsky Beer Factory joint-stock company and Zhayylsky district public administration about cancellation of the resolution No. 1331 of December 24, 1996 "About registration of Zhayylsky Beer Factory joint-stock company, and also Item 3 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic

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 Zhetigen of kyza Aynur, the parties: the chairman of the board of the Kyrgyz union of consumer societies and cooperatives Esenaliyev Mukash Abdrayevich, 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 July 21, 2000, the signed Chairman of the Supreme Arbitration Court of the Kyrgyz Republic, the representative of General Court of Jogorku Kenesh of the Kyrgyz Republic Koychumanova Aynagul Turarbekovny who is acting on the basis of the power of attorney of October 26, 2000, signed Toraga of General Court of Jogorku Kenesh 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 the Kyrgyz union of consumer societies and cooperatives for recognition unconstitutional and inappropriate to Articles 4, of 15, of 19, of 38, 84 and 88 Constitutions of the Kyrgyz Republic of the law-enforcement practice established by the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of November 24, 1999 on case on the claim of Association of cooperatives of the Kyrgyz Republic to Zhayylsky Beer Factory joint-stock company and Zhayylsky district public administration about cancellation of the resolution No. 1331 of December 24, 1996 "About registration of Zhayylsky Beer Factory joint-stock company, and also Item 3 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic.

Having heard the report of the judge Esenkanov K. E., speeches of the chairman of the board of the Kyrgyz union of consumer societies and cooperatives Esenaliyev M. A., representatives: Supreme Arbitration Court of the Kyrgyz Republic of Tyurin V. I. and General Court of Jogorku Kenesh of the Kyrgyz Republic of Koychumanova A. T., having researched case papers, the Constitutional court of the Kyrgyz Republic

ESTABLISHED:

In the Constitutional court of the Kyrgyz Republic on June 20 and on August 14, 2000 the petition of the Kyrgyz union of consumer societies and cooperatives for recognition unconstitutional and inappropriate to Articles 4, of 15, of 19, of 38, 84 and 88 Constitutions of the Kyrgyz Republic of the law-enforcement practice established by the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of November 24, 1999 on case on the claim of Association of cooperatives of the Kyrgyz Republic to Zhayylsky Beer Factory joint-stock company and Zhayylsky district public administration about cancellation of the resolution No. 1331 of December 24, 1996 "About registration of Zhayylsky Beer Factory joint-stock company, and also Item 3 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic arrived.

The following arguments are given to reasons for the petition. The meeting of authorized consumer cooperatives of the Kyrgyz Republic resolved on September 28, 1996 sale of property of the Kara-Balta beer factory on residual cost. In defiance of requirements of the Regulations on conditions and procedure for realization of property of system of Association of cooperatives of the Kyrgyz Republic, the buyer did not provide to Association of cooperatives of the Kyrgyz Republic the corresponding accounting and technical documentation of this object, did not pay its estimated value and did not draw up the purchase and sale agreement. The Zhayylsky Beer Factory joint-stock company made unreasonable property acquisition of the company by illegal registration in public administration of Zhayylsky district.

Claims of the Kyrgyz union of consumer societies and cooperatives were satisfied with the decision of Arbitration Court of Chuy Region of April 2, 1999 also the resolution of public administration of Zhayylsky district No. 1331 of November 24, 1999 "About registration of Zhayylsky Beer Factory joint-stock company was nullified. The specified decision is left by the resolution of appellate instance of Arbitration Court of Chuy Region of June 10, 1999 without change.

However, the Supreme Arbitration Court of the Kyrgyz Republic, being guided by Item 3 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic, having considered the application of Zhayylsky district public administration, cancelled the above-named court decrees and made on case the new and final decision on refusal in the claim of Association of cooperatives of the Kyrgyz Republic. This decision is unconstitutional as adoption of the new decision by supervising instance violates the right of defense of citizens unitholders of Kyrgyzpotrebsoyuz provided by articles 38 and 88 of the Constitution of the Kyrgyz Republic and contradicts article 84 of the Constitution of the Kyrgyz Republic as the Supreme Arbitration Court of the Kyrgyz Republic shall exercise only supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek.

In judicial session chairman of the board of the Kyrgyz union of consumer societies and cooperatives Esenaliyev M. A. asks to satisfy the petition.

Representative of General Court of Jogorku Kenesh of the Kyrgyz Republic Koychumanova A. T. agreed with arguments of the petition for recognition unconstitutional Item 3 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic.

Representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I. did not agree with arguments of the petition and asks the constitutional legal proceedings to stop on this case.

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 claim of Association of cooperatives of the Kyrgyz Republic (Kyrgyzpotrebsoyuz) to public administration of Zhayylsky district is satisfied with the decision of Arbitration Court of Chuy Region of April 2, 1999 also the resolution of public administration of Zhayylsky district No. 1331 of December 24, 1996 "About registration of Zhayylsky Beer Factory joint-stock company is nullified.

The specified decision is left by the resolution of appellate instance of Arbitration Court of Chuy Region of June 10, 1999 without change.

The Supreme Arbitration Court of the Kyrgyz Republic satisfied with the resolution of November 24, 1999 the petition of Zhayylsky district public administration for recovery of term for filing of application about review according to the procedure of supervision of the decision of April 2, 1999 and the resolution of appellate instance of June 10, 1999 of Arbitration Court of Chuy Region. Cancelled the above-stated court decrees. Made the new decision on case. To Zhayylsky Beer Factory joint-stock company and Zhayylsky district public administration about cancellation of the resolution No. 1331 of December 24, 1996 "About registration of Zhayylsky Beer Factory joint-stock company refused the claim of Association of cooperatives of the Kyrgyz Republic.

The Supreme Arbitration Court of the Kyrgyz Republic in case of adoption of this decision was guided by Item 3 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic which when considering the case according to the procedure of supervision granted it the right to change or cancel the decision, resolution of Arbitration Court and to make the new decision, without submitting the case on new trial.

Investment with the legislator of the Supreme Arbitration Court of the Kyrgyz Republic in Item 3 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic the specified right with adoption of the new decision without case referral on new trial which the judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic had earlier, violates constitutional right on protection of citizens unitholders of Kyrgyzpotrebsoyuz, stipulated in Item 2 articles 38 of the Constitution of the Kyrgyz Republic.

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 the possibility of the right to appeal of the final decision made by court on the merits of the case.

Under the specified circumstances, the Constitutional court of the Kyrgyz Republic considers that Item 3 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic granting the right to the Supreme Arbitration Court of the Kyrgyz Republic of adoption of the new decision on case without submitting the case on new trial, contradicts Item 2 of Article 38 and Item 2 of article 88 of the Constitution of the Kyrgyz Republic, breaking the constitutional guarantees for protection in any stage of process of the rights of the citizens who are unitholders of the Kyrgyz union of consumer societies and cooperatives.

Based on stated and being guided by the subitem 1 of Item 3 and item 4 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 unconstitutional and inappropriate to Item 2 of Article 38 and Item 2 of article 88 of the Constitution of the Kyrgyz Republic Item 3 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic and to cancel its action.

Satisfy the petition of the Kyrgyz union of consumer societies and cooperatives.

2. The resolution of the Supreme Arbitration Court of the Kyrgyz Republic of November 24, 1999 about satisfaction of the petition of Zhayylsky district public administration for recovery of term for filing of application about review according to the procedure of supervision of the decision of April 2, 1999 and the resolution of appellate instance of June 10, 1999 of Arbitration Court of Chuy Region is not subject to execution, about cancellation of the decision of April 2, 1999 and the resolution of appellate instance of Arbitration Court of Chuy Region of June 10, 1999 in the matter of No. Ch-07-55/99-s2 in the claim of Association of cooperatives of the Kyrgyz Republic to Zhayylsky district public administration and Zhayylsky Beer Factory joint-stock company about recognition invalid resolutions of Zhayylsky district public administration No. 1331 of December 24, 1996 "About registration of Zhayylsky Beer Factory joint-stock company and adoption of the new decision on refusal in the claim of Association of cooperatives of the Kyrgyz Republic to Zhayylsky Beer Factory joint-stock company and Zhayylsky district public administration about cancellation of the resolution No. 1331 of December 24, 1996 "About registration of Zhayylsky Beer Factory joint-stock company and collection from Association of cooperatives of the Kyrgyz Republic (The Kyrgyz union of consumer societies and cooperatives) for benefit of public administration of Zhayylsky district 250 som of the state fee.

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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