NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

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 for recognition unconstitutional and inappropriate to Articles 12, 79, to Item 3 of Article 84, to Item 1 of Article 87, to Item 2 of Article 88 and article 90 of the Constitution of the Kyrgyz Republic of Articles 154, 157, 158, 159 and 161 Arbitral Procedure Codes of the Kyrgyz Republic and the law-enforcement practice established by determinations of the Supreme Arbitration Court of the Kyrgyz Republic of March 4 and on June 3, 1999, the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of July 16, 1999 on case on the claim of joint commercial Industrial Construction Bank of the Kyrgyz Republic to Kyrgyzenergo joint-stock company and Naryngidroenergostroy joint-stock company about collection of credit debt in the amount of 30 million 608 thousand 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 Zhetigen of kyza Aynur, parties: the chairman of the board of joint commercial Industrial Construction Bank of the Kyrgyz Republic Mukashev Muratbek Osmonaliyevich and the representative of this bank, Sadykov Nurlan Berikovich who is acting on the basis of the power of attorney of September 23, 1999, the signed chairman of the board of joint commercial Industrial Construction Bank 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 January 12, 2000, signed Toraga of General Court of Jogorku Kenesh of the Kyrgyz Republic 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 July 30, 1999, the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic signed by the acting as, 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 commercial Industrial Construction Bank of the Kyrgyz Republic for recognition unconstitutional and inappropriate to Articles 12, of 79, to Item 3 of Article 84, to Item 1 of Article 87, to Item 2 of Article 88 and article 90 of the Constitution of the Kyrgyz Republic of Articles 154, of 157, of 158, 159 and 161 Arbitral Procedure Codes of the Kyrgyz Republic and the law-enforcement practice established by determinations of the Supreme Arbitration Court of the Kyrgyz Republic of March 4 and on June 3, 1999 the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of July 16, 1999 on case on the claim of joint commercial Industrial Construction Bank of the Kyrgyz Republic to Kyrgyzenergo joint-stock company and Naryngidroenergostroy joint-stock company about collection of credit debt in the amount of 30 million 608 thousand som.

Having heard the report of the judge Esenaliyev K. E., speeches of the chairman of the board of joint commercial Industrial Construction Bank of the Kyrgyz Republic Mukashev M. O. and representative of this bank Sadykov N. B., representative of General Court of Jogorku Kenesh of the Kyrgyz Republic Koychumanova A. T., 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 on June 20, on September 24, on November 29 and on December 28, 1999 the petition of joint commercial Industrial Construction Bank of the Kyrgyz Republic for recognition unconstitutional and inappropriate to Articles 12, of 79, to Item 3 of Article 84, to Item 1 of Article 87, to Item 2 of Article 88 and article 90 of the Constitution of the Kyrgyz Republic of Articles 154, of 157, of 158, 159 and 161 Arbitral Procedure Codes of the Kyrgyz Republic and the law-enforcement practice established by determinations of the Supreme Arbitration Court of the Kyrgyz Republic of March 4 and on June 3, 1999, the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of July 16, 1999 on case on the claim of joint commercial Industrial Construction Bank of the Kyrgyz Republic to Kyrgyzenergo joint-stock company and Naryngidroenergostroy joint-stock company about collection of credit debt in the amount of 30 million 608 thousand som arrived.

The following arguments are given to reasons for the petition. The solution of the Constitutional court of the Kyrgyz Republic of February 3, 1999 acknowledged unconstitutional and inappropriate to Article 12, to Items 1, 2 and 4 Articles 79, to Item 3 of article 84 of the Constitution of the Kyrgyz Republic Article 153 of the Arbitral Procedure Code of the Kyrgyz Republic and law-enforcement practice established by the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of September 4, 1998 on case on the claim of joint commercial Industrial Construction Bank of the Kyrgyz Republic to Kyrgyzenergo joint-stock company about collection of credit debt in the amount of 30 million 608 thousand som. Ignoring this judgment, the Supreme Arbitration Court of the Kyrgyz Republic determination of June 3, 1998 according to the statement of Kyrgyzenergo joint-stock company repealed on newly discovered facts the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of September 4, 1998 and adopted the statement of Kyrgyzenergo joint-stock company for reconsideration of the case according to the procedure of supervision.

The resolution of July 16, 1999 the Supreme Arbitration Court of the Kyrgyz Republic cancelled according to the procedure of supervision the decision of Arbitration Court of the city of Bishkek of July 22, 1998 and the resolution of appellate instance of Arbitration Court of the city of Bishkek of July 23, 1998, and left the action for declaration of joint commercial Industrial Construction Bank of the Kyrgyz Republic without satisfaction. Having repealed determination of June 3, 1999 the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of September 4, 1998, and then both the decision and the resolution of appellate instance of Arbitration Court of the city of Bishkek by the same list of judges, the Supreme Arbitration Court of the Kyrgyz Republic violated not only the requirement of Article 14 of the Arbitral Procedure Code of the Kyrgyz Republic about inadmissibility of participation of the judge in trial de novo, but also requirements of Item 3 of article 84 of the Constitution of the Kyrgyz Republic according to which the Supreme Arbitration Court of the Kyrgyz Republic has no right to exercise supervision of own decisions.

Besides, the Supreme Arbitration Court of the Kyrgyz Republic mistakenly considers newly discovered fact the solution of the Constitutional court of the Kyrgyz Republic of February 3, 1999.

In case of decision making on July 16, 1999 the Supreme Arbitration Court of the Kyrgyz Republic was guided by the unconstitutional Articles 154, 157, 158, 159 and 161 Arbitral Procedure Codes of the Kyrgyz Republic contradicting Articles 12, of 79, to Item 3 of Article 84, to Item 1 of article 87 of the Constitution of the Kyrgyz Republic, regulating questions of procedure and limits of hearing of cases, power and other questions of unconstitutional body - judicial structure of supervising instance, but not the Supreme Arbitration Court of the Kyrgyz Republic.

The law-enforcement practice established by determinations of March 4, on June 3, 1999 and the resolution of July 16, 1999 of the Supreme Arbitration Court of the Kyrgyz Republic, is unconstitutional and contradicts Items 2 and 4 of Article 79, to Item 3 of Article 84, to Item 2 of Article 88 and article 90 of the Constitution of the Kyrgyz Republic and violates constitutional rights of joint commercial Industrial Construction Bank of the Kyrgyz Republic on property, on the equal legal protection and providing the rights with justice guaranteed by Item 1 of Article 4, item 4 of Article 15, Item 2 of article 19 of the Constitution of the Kyrgyz Republic.

In judicial session the chairman of the board of joint commercial Industrial Construction Bank of the Kyrgyz Republic Mukashev M. O. and the representative of this bank Sadykov N. B. ask to satisfy the petition.

Representative of General Court of Jogorku Kenesh of the Kyrgyz Republic Koychumanova A. T., agreed with petition arguments regarding recognition unconstitutional Articles 154, of 157, of 158, 159 and 161 Arbitral Procedure Codes of the Kyrgyz Republic.

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 solution of the Constitutional court of the Kyrgyz Republic of February 3, 1999 acknowledged unconstitutional and inappropriate to Article 12, to Items 1, 2 both 4 Articles 79 and to Item 3 of article 84 of the Constitution of the Kyrgyz Republic Article 153 of the Arbitral Procedure Code of the Kyrgyz Republic and law-enforcement practice established by determinations of the judge of the Supreme Arbitration Court of the Kyrgyz Republic from 20, on July 21, 1998 and the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of September 4, 1998 on case on the claim of joint commercial Industrial Construction Bank of the Kyrgyz Republic to Kyrgyzenergo joint-stock company and Naryngidroenergostroy joint-stock company about collection of 30 million 608 thousand som.

The Kyrgyzenergo joint-stock company appealed on March 3, 1999 to the Supreme Arbitration Court of the Kyrgyz Republic with the statement for review of the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of September 4, 1998 on newly discovered facts. The Supreme Arbitration Court of the Kyrgyz Republic determination of March 4, 1999 took cognizance of this statement and suspended execution of the decision of Arbitration Court of the city of Bishkek of May 22, 1998 and the resolution of appellate instance of June 23, 1998.

The application of Kyrgyzenergo joint-stock company is granted by determination of June 3, 1999, are cancelled:

the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of September 4, 1998 about cancellation of the decision of Arbitration Court of the city of Bishkek of May 22, 1998 and the resolution of appellate instance of Arbitration Court of the city of Bishkek of June 23, 1998;

determination of the judge of the Supreme Arbitration Court of the Kyrgyz Republic of July 20, 1998 about adoption of the statement of Kyrgyzenergo joint-stock company for review of the decision of Arbitration Court of the city of Bishkek of May 22, 1998 and the resolution of appellate instance of Arbitration Court of the city of Bishkek of June 23, 1998;

determination of the judge of the Supreme Arbitration Court of the Kyrgyz Republic of July 21, 1998 about suspension of execution of the decision of Arbitration Court of the city of Bishkek of May 22, 1998 and the resolution of appellate instance of Arbitration Court of the city of Bishkek of June 23, 1998;

the statement of Kyrgyzenergo joint-stock company for review according to the procedure of supervision of the decision of Arbitration Court of the city of Bishkek of May 23, 1998 and the resolution of appellate instance of Arbitration Court of the city of Bishkek of June 23, 1998 on this case is adopted to production;

consideration of the case is appointed to June 6, 1999;

execution of the decision of Arbitration Court of the city of Bishkek of May 22, 1998 and the resolution of appellate instance of Arbitration Court of the city of Bishkek of June 23, 1998 is suspended.

The Supreme Arbitration Court of the Kyrgyz Republic the resolution of July 16, 1999 cancelled the decision of Arbitration Court of the city of Bishkek of May 22, 1998 and the resolution of appellate instance of Arbitration Court of the city of Bishkek of June 23, 1998 on this case, the action for declaration of joint commercial Industrial Construction Bank of the Kyrgyz Republic about collection from the State-owned joint-stock holding power company (nowadays - Kyrgyzenergo joint-stock company) and Naryngidroenergostroy joint-stock company of 30608 thousand som - left without satisfaction.

In case of adoption of the specified resolution, the Supreme Arbitration Court of the Kyrgyz Republic was guided by Articles 154, of 157, of 158, 159 and 161 Arbitral Procedure Codes of the Kyrgyz Republic which constitutionality is disputed in the petition of joint commercial Industrial Construction Bank of the Kyrgyz Republic.

Apparently from the Arbitral Procedure Code of the Kyrgyz Republic, Articles from 148 on 163 regulate the procedure of hearing of cases by judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic: Article 154 provides procedure for hearing of cases by judicial structure of supervising instance; Article 157 - limits of hearing of cases by judicial structure of supervising instance; article 158 of power of judicial structure of supervising instance; article 159 of the basis to change and cancellation of the decision, resolution of Arbitration Court, and Article 161 - procedure for acceptance and execution of the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic.

Earlier Article 148 of the Arbitral Procedure Code of the Kyrgyz Republic providing to judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic right of review of decisions of the court orders which took legal effect is acknowledged unconstitutional and its action is cancelled by the solution of the Constitutional court of the Kyrgyz Republic of January 29, 1999 according to the petition of Kyrgyzenergo joint-stock company.

Illegality of judicial structures of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic was repeatedly stated in earlier made decisions of the Constitutional court of the Kyrgyz Republic. In this connection, General Court of Jogorku Kenesh of the Kyrgyz Republic the Law of November 16, 1998 "About introduction of amendments to the Law of the Kyrgyz Republic "About system of Arbitration Courts of the Kyrgyz Republic" made changes to the Law of the Kyrgyz Republic "About system of Arbitration Courts of the Kyrgyz Republic", having excluded the unconstitutional regulations determining procedure for forming of judicial structures of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic and their interaction with other degrees of jurisdiction of Arbitration Courts of the Kyrgyz Republic.

In spite of the fact that judicial structures of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic were cancelled, in the Arbitral Procedure Code of the Kyrgyz Republic of Article 154, of 157, of 158, 159 and 161, the regulating procedures of hearing of cases by judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic were left without change though they contradict requirements of articles 12 and 84 of the Constitution of the Kyrgyz Republic providing the principle of rule of the Constitution and the right of implementation of supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek by the Supreme Arbitration Court of the Kyrgyz Republic. The Supreme Arbitration Court of the Kyrgyz Republic in case of adoption of the resolution of July 16, 1999 was guided by the specified unconstitutional regulations, contrary to requirements of articles 79 and 87 of the Constitution of the Kyrgyz Republic and established unconstitutional law-enforcement practice.

Implementation of powers, stipulated in Item 3 articles 84 of the Constitution of the Kyrgyz Republic, the Supreme Arbitration Court of the Kyrgyz Republic perhaps only in strict accordance with regulations of the procedural law regulating the procedure of the review of the judgments which took legal effect, caused by exclusively objective need and not depending on someone's subjective opinion.

In the current Arbitral Procedure Code of the Kyrgyz Republic there are no regulations regulating the procedure of consideration of the case according to the procedure of supervision and procedure for decision making of the Kyrgyz Republic by the Supreme Arbitration Court in case of review of the decisions of the courts which took legal effect. Implementation of the Kyrgyz Republic of powers by the Supreme Arbitration Court, stipulated in Article 84 Constitutions of the Kyrgyz Republic, being guided by Articles 154, of 157, of 158, 159 and 161 Arbitral Procedure Codes of the Kyrgyz Republic regulating action recognized inappropriate to the Constitution of the Kyrgyz Republic of judicial structure of supervising instance is unconstitutional.

Use of the Kyrgyz Republic of the solution of the Constitutional court of the Kyrgyz Republic by the Supreme Arbitration Court of February 3, 1999 about recognition unconstitutional and unliable to execution of judgments of judicial structure of supervising instance inappropriate to the Constitution of the Kyrgyz Republic for their review according to the procedure of supervision under the guise of newly discovered facts, also is unconstitutional as the ban imposed on application of the unconstitutional law by article 87 of the Constitution of the Kyrgyz Republic before application of any law demands from court of studying it regarding compliance of the Constitution of the Kyrgyz Republic and if when considering the case there was question of constitutionality of the law or other act on which the solution of case depends, then the court shall send inquiry to the Constitutional court of the Kyrgyz Republic.

The item 4 of article 79 of the Constitution of the Kyrgyz Republic obliges the judge to submit only to the Constitution and the law in this connection, recognition by the Constitutional court of the Kyrgyz Republic the decision of February 3, 1999 unconstitutional law-enforcement practice of the Supreme Arbitration Court of the Kyrgyz Republic established by determinations of the judge of the Supreme Arbitration Court of the Kyrgyz Republic of July 20 and 21, 1998; the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of September 4, 1998 in the claim of joint commercial Industrial Construction Bank of the Kyrgyz Republic to Kyrgyzenergo joint-stock company and Naryngidroenergostroy joint-stock company about collection of 30 million 608 thousand som, on the basis of the Constitution of the Kyrgyz Republic acting since May 5, 1993, cannot be for court newly discovered fact.

The specified unconstitutional law-enforcement practice of the Supreme Arbitration Court of the Kyrgyz Republic violates constitutional rights of joint commercial Industrial Construction Bank of the Kyrgyz Republic on the providing the rights with justice and judicial protection 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 unconstitutional and inappropriate to item 4 of Article 79, to Item 3 of Article 84 and article 87 of the Constitution of the Kyrgyz Republic of Article 154, of 157, of 158, 159 both 161 Arbitral Procedure Codes of the Kyrgyz Republic and the law-enforcement practice established by determination of the Supreme Arbitration Court of the Kyrgyz Republic of June 3, 1999 and the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of July 16, 1999 on case on the claim of joint commercial Industrial Construction Bank of the Kyrgyz Republic to Kyrgyzenergo joint-stock company and Naryngidroenergostroy joint-stock company about collection of 30 million 608 thousand som.

Cancel operation of articles 154, of 157, of 158, 159 and 161 Arbitral Procedure Codes of the Kyrgyz Republic.

Satisfy the petition of joint commercial Industrial Construction Bank of the Kyrgyz Republic.

2. Are not subject to execution:

- determination of the Supreme Arbitration Court of the Kyrgyz Republic of March 4, 1999 about adoption of the statement of Kyrgyzenergo joint-stock company for review on newly discovered facts of the resolution of judicial structure of the Supreme Arbitration Court of the Kyrgyz Republic of September 4, 1998 and suspension of execution of the decision of Arbitration Court of the city of Bishkek of May 22, 1998 and the resolution of appellate instance of Arbitration Court of the city of Bishkek of June 23, 1998;

- determination of the Supreme Arbitration Court of the Kyrgyz Republic of June 3, 1999 about allowance of the application of Kyrgyzenergo joint-stock company about review on newly discovered facts of the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of September 4, 1999 and cancellation: resolutions of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of September 4, 1998 about cancellation of the decision of Arbitration Court of the city of Bishkek of May 22, 1998 and the resolution of appellate instance of Arbitration Court of the city of Bishkek of July 23, 1998; determinations of the judge of the Supreme Arbitration Court of the Kyrgyz Republic of July 20, 1998 about acceptance to production of the statement of Kyrgyzenergo joint-stock company for review of the decision of Arbitration Court of the city of Bishkek of May 22, 1998 and the resolution of appellate instance of Arbitration Court of the city of Bishkek of June 23, 1998 according to the procedure of supervision; determinations of the judge of the Supreme Arbitration Court of the Kyrgyz Republic of June 21, 1998 about suspension of execution of the decision of Arbitration Court of the city of Bishkek of May 22, 1998 and the resolution of appellate instance of Arbitration Court of the city of Bishkek of June 23, 1998 on case on the claim of joint-stock commercial Kyrgyzpromstroybank to Kyrgyzenergo joint-stock company about debt collection on credit to the amount of 30 million 608 thousand som; acceptance to production of the Supreme Arbitration Court of the Kyrgyz Republic of the statement of Kyrgyzenergo joint-stock company for review according to the procedure of supervision of the decision of May 22, 1998 and the resolution of appellate instance of Arbitration Court of the city of Bishkek of June 23, 1998 and purpose of case to consideration for July 6, 1999; suspension of execution of the decision of Arbitration Court of the city of Bishkek of May 22, 1998 and the resolution of appellate instance of Arbitration Court of the city of Bishkek of June 23, 1998 on case before consideration on the merits of the statement of Kyrgyzenergo joint-stock company for review according to the procedure of supervision of the decision of Arbitration Court of the city of Bishkek of May 22, 1998 and the resolution of appellate instance of Arbitration Court of the city of Bishkek of June 23, 1998;

- the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of July 16, 1999 about cancellation of the decision of Arbitration Court of the city of Bishkek of May 22, 1998 and the resolution of appellate instance of Arbitration Court of the city of Bishkek of June 23, 1998 on case on the claim of joint-stock commercial Kyrgyzpromstroybank to Kyrgyzenergo joint-stock company and Naryngidroenergostroy joint-stock company about debt collection on credit to the amount of 30608 thousand som and leaving without allowance of the application of joint commercial Industrial Construction Bank of the Kyrgyz Republic about collection from the state and joint-stock holding power company (nowadays JSC Kyrgyzenergo) and Naryngidroenergostroy joint-stock company of 30608 thousand som.

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", the Tuusu Kyrgyz, Slovo Kyrgyzstana, Erkin Too and Nasha gazeta newspapers.

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