NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of April 5, 2000

According to the petition of the State customs inspection under the Ministry of Finance of the Kyrgyz Republic about recognition unconstitutional and inappropriate to Articles 79, 84, 87 and 90 Constitutions of the Kyrgyz Republic of Articles 154, 157, 158 and 161 Arbitral Procedure Codes of the Kyrgyz Republic and the law-enforcement practice established by the decision of Arbitration Court of the city of Bishkek of February 12, 1999 and the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of May 20, 1999 on case on the claim of Savitar joint-stock company to the State customs inspection under the Ministry of Finance of the Kyrgyz Republic about collection of 529140 US dollars

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., Esenkanova K. E. and Esenaliyeva K. E.,

with participation of the court clerk Aydaraliyeva Zh. R.,

parties: the director of the State customs inspection under the Ministry of Finance of the Kyrgyz Republic Kangeldiyev Azamat Nurkaziyevich and the representative of this inspectorate Sydykov Abdylda Askarovich, 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 February 29, 2000, the signed Chairman of the Supreme Arbitration Court of the Kyrgyz Republic who is acting on the basis of the power of attorney signed by it of March 1, 2000, 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 State customs inspection under the Ministry of Finance of the Kyrgyz Republic about recognition unconstitutional and inappropriate to Articles 79, of 84, 87 and 90 Constitutions of the Kyrgyz Republic of Articles 154, of 157, 158 and 161 Arbitral Procedure Codes of the Kyrgyz Republic and the law-enforcement practice established by the decision of Arbitration Court of the city of Bishkek of February 12, 1999 and the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of May 20, 1999 on case on the claim of Savitar joint-stock company to the State customs inspection under the Ministry of Finance of the Kyrgyz Republic about collection of 529140 US dollars.

Having heard the report of the judge A. Sutalinov, speech of the director of the State customs inspection under the Ministry of Finance of the Kyrgyz Republic Kangeldiyev A. N. and representative of this inspectorate Sydykov A. A., representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I., having researched case papers, the Constitutional court of the Kyrgyz Republic

ESTABLISHED:

In the Constitutional court of the Kyrgyz Republic the petition of the State customs inspection arrived on February 10, 2000 under the Ministry of Finance of the Kyrgyz Republic about recognition unconstitutional and inappropriate to Articles 79, of 84, 87 and 90 Constitutions of the Kyrgyz Republic of Articles 154, of 157, 158 and 161 Arbitral Procedure Codes of the Kyrgyz Republic and the law-enforcement practice established by the decision of Arbitration Court of the city of Bishkek of February 12, 1999 and the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of May 20, 1999 on case on the claim of Savitar joint-stock company to the State customs inspection under the Ministry of Finance of the Kyrgyz Republic about collection of 529140 US dollars.

The following arguments are given to reasons for the petition. In case of adoption of the resolution of May 20, 1999 on the specified case, the Supreme Arbitration Court of the Kyrgyz Republic was guided by Articles 154, of 157, 158 and 161 Arbitral Procedure Codes of the Kyrgyz Republic which regulate hearing of cases according to the procedure of supervision not by the Supreme Arbitration Court of the Kyrgyz Republic, and judicial structure of supervising instance. These Articles contradict Articles 79, of 84, 87 and 90 Constitutions of the Kyrgyz Republic and are unconstitutional. Also law-enforcement practice established by the decision of Arbitration Court of the city of Bishkek of February 12, 1999 as in defiance of requirements of Article 14 of the Arbitral Procedure Code of the Kyrgyz Republic about inadmissibility of repeated participation of the judge in consideration of the case, the judge Zakiryaev O. T. is unconstitutional. made this decision though on this case, earlier he decided the decision of May 27, 1998.

In judicial session director of the State customs inspection under the Ministry of Finance of the Kyrgyz Republic Kangeldiyev A. N. and representative of this inspectorate Sydykov A. A. ask to satisfy the petition.

Representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I., without having agreed with the petition, 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 that the petition is subject to satisfaction partially on the following bases.

From the provided materials it is visible that the decision of Arbitration Court of the city of Bishkek of February 12, 1999 from the State customs inspection under the Ministry of Finance of the Kyrgyz Republic for benefit of Savitar joint-stock company exacts 256100 US dollars, 235181 som 21 тыйын and the state fee 93784 som of 19 tyyyn and 25 som postage expenses. The claim of Savitar joint-stock company is satisfied partially.

The Supreme Arbitration Court of the Kyrgyz Republic the resolution of May 20, 1999, changed the specified decision of Arbitration Court of the city of Bishkek, under the Ministry of Finance of the Kyrgyz Republic for benefit of Savitar joint-stock company exacted from the State customs inspection 150626, 36 US dollars of losses, from them 128000 US dollars of expenses on payment of penalty, 22626, of 36 US dollars of lost profit, the state fee 48676, of 70 som and 25 som of postage expenses.

Accepting this resolution, the Supreme Arbitration Court of the Kyrgyz Republic, really was guided by Articles 154, of 157, 158 and 161 Arbitral Procedure Codes of the Kyrgyz Republic which constitutionality is disputed in the petition which arrived on February 10, 2000 in the Constitutional court of the Kyrgyz Republic.

The decision of February 24, 2000 the Constitutional court of the Kyrgyz Republic, according to earlier arrived petition of joint commercial Industrial Construction Bank of the Kyrgyz Republic, already recognized unconstitutional and inappropriate to item 4 of Article 79 and Item 3 of article 84 of the Constitution of the Kyrgyz Republic, 158 and 161 Articles of the Arbitral Procedure Code of the Kyrgyz Republic disputed in the petition 154, of 157, and cancelled their action.

With respect thereto, according to part 4 of article 22 of the Law "About the Constitutional Legal Proceedings of the Kyrgyz Republic", the constitutional legal proceedings initiated according to the petition of the State customs inspection under the Ministry of Finance of the Kyrgyz Republic regarding recognition unconstitutional Articles 154, of 157, 158 and 161 Arbitral Procedure Codes of the Kyrgyz Republic are subject to the termination.

As stipulated in Item 4 articles 82 of the Constitution of the Kyrgyz Republic, establishment of illegality of the laws the Constitutional court not only are repealed by their action in the territory of the Kyrgyz Republic, but also cancels operation of the acts based on the laws recognized as unconstitutional.

Under the specified circumstances, the Constitutional court of the Kyrgyz Republic considers that the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of May 20, 1999 on this case is not subject to execution as based on the provisions of the law recognized as unconstitutional.

The constitutional legal proceedings initiated according to the petition of the State customs inspection under the Ministry of Finance of the Kyrgyz Republic regarding recognition of the unconstitutional law-enforcement practice established by the decision of Arbitration Court of the city of Bishkek of February 12, 1999 on this case are subject to the termination behind not jurisdiction to the Constitutional court of the Kyrgyz Republic as consideration of question of violation of Article 14 of the Arbitral Procedure Code of the Kyrgyz Republic is under authority of the Supreme Arbitration Court of the Kyrgyz Republic.

Based on stated and being guided by 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 22, 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. Satisfy partially the petition of the State customs inspection under the Ministry of Finance of the Kyrgyz Republic, having stopped the constitutional legal proceedings initiated according to the petition of the State customs inspection under the Ministry of Finance of the Kyrgyz Republic regarding recognition unconstitutional and inappropriate to Articles 79, of 84, 87 and 90 Constitutions of the Kyrgyz Republic of Articles 154, of 157, 158 and 161 Arbitral Procedure Codes of the Kyrgyz Republic and the law-enforcement practice established by the decision of Arbitration Court of the city of Bishkek of February 12, 1999 on case on the claim of Savitar joint-stock company to the State customs inspection under the Ministry of Finance of the Kyrgyz Republic about collection of 529140 US dollars.

2. The resolution of the Supreme Arbitration Court of the Kyrgyz Republic of May 20, 1999 about change of the decision of Arbitration Court of the city of Bishkek of February 12, 1999 on case on the claim of Savitar joint-stock company to the State customs inspection under the Ministry of Finance of the Kyrgyz Republic about collection of 312140 US dollars and collection from the State customs inspection under the Ministry of Finance of the Kyrgyz Republic for benefit of Savitar joint-stock company is not subject to execution 150626, of 36 US dollars of losses, from them 128000 US dollars of expenses on payment of penalty, 22626, of 36 US dollars of lost profit, the state fee 48676, of 70 som and 25 som of postage expenses.

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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