NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of April 26, 2000

According to the petition of joint-stock production and commercial company "Usta" for recognition of Article unconstitutional and inappropriate to Item 2 7, to item 4 of Article 15, to Items 1 and 2 of Article 38, to Article 79, to Item 3 of Article 84 and Item 2 of article 88 of the Constitution of the Kyrgyz Republic of the law-enforcement practice established by the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 6, 1998 on case on the claim of joint-stock production and commercial company "Usta" to Kyrgyzstan joint stock bank about recognition invalid transactions

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 CEO of joint-stock production and commercial company "Usta" Yuldashov Abdisalam Tairovich and the acting on the basis of the powers of attorney signed by it of December 17, 1999 and on March 27, 2000, representatives of this society Shentsov Vladimir Petrovich and Kachalova Olga Vladimirovna, 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 January 11, 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-stock production and commercial company "Usta" for recognition of Article unconstitutional and inappropriate to Item 2 7, to item 4 of Article 15, to Items 1 and 2 of Article 38, to Article 79, to Item 3 of Article 84 and Item 2 of article 88 of the Constitution of the Kyrgyz Republic of the law-enforcement practice established by the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 6, 1998 on case on the claim of joint-stock production and commercial company "Usta" to Kyrgyzstan joint stock bank about recognition invalid transactions.

Having heard the report of the judge Kenensariyev A. S., speeches of the CEO of joint-stock production and commercial company "Usta" Yuldashov A. T., representatives of this society Shentsov V. P. and Kachalova O. V., 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-stock production and commercial company "Usta" for recognition of Article unconstitutional and inappropriate to Item 2 7, to item 4 of Article 15, to Items 1 and 2 of Article 38, to Article 79, to Item 3 of Article 84 and Item 2 of article 88 of the Constitution of the Kyrgyz Republic of the law-enforcement practice established by the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 6, 1998 on case on the claim of joint-stock production and commercial company "Usta" to Kyrgyzstan joint stock bank about recognition invalid transactions arrived on December 21, 1999.

The following arguments are given to reasons for the petition. The decision of Arbitration Court of the city of Bishkek of August 12, 1998 acknowledged invalid the credit agreement and the pledge agreement of November 1, 1995 concluded between department "Uchkun" of Kyrgyzstan joint stock bank and joint-stock production and commercial company "Usta". The resolution of October 6, 1998, judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic (the presiding Alpiyeva A. N., judges Makarov N. V. and Dzhumashev K. O.), cancelled this judgment. The law-enforcement practice established by this resolution is unconstitutional and does not correspond to Item 3 of article 84 of the Constitution of the Kyrgyz Republic providing that supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek performs the Supreme Arbitration Court of the Kyrgyz Republic, but not its judicial structure from three judges. Besides, requirements of item 4 of article 79 of the Constitution of the Kyrgyz Republic are violated, the binding judge to submit only to the Constitution and the law, and Items 1 and 2 of article 79 of the Constitution of the Kyrgyz Republic providing that 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. Unconstitutional law-enforcement practice violates constitutional rights of shareholders of joint-stock production and commercial company "Usta", stipulated in Item 4 articles 15 of the Constitution of the Kyrgyz Republic that human rights and freedoms are acting in the Kyrgyz Republic. They as such determine sense, content and application of the laws, oblige the legislative, executive authority, local self-government and the constitutional principle, stipulated in Item 2 articles 38 of the Constitution of the Kyrgyz Republic according to which the Kyrgyz Republic guarantees judicial protection of all rights and freedoms of the citizens fixed by the Constitution and the laws are provided with justice, and also.

In judicial session CEO of joint-stock production and commercial company "Usta" Yuldashov A. T. and representatives of this society Shentsov V. P. and Kachalova O. V. 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 leave it without satisfaction, and 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 August 12, 1998 the credit agreement and the pledge agreement of November 1, 1995 concluded between department "Uchkun" of Kyrgyzstan joint stock bank and joint-stock production and commercial company "Usta" are recognized as invalid.

The judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic consisting of three judges the resolution of October 6, 1998 cancelled the specified decision of Arbitration Court of the city of Bishkek and refused the claim of joint-stock production and commercial company "Usta" for recognition invalid the credit agreement and the pledge agreement of November 1, 1995 concluded between department "Uchkun" of Kyrgyzstan joint stock bank and joint-stock production and commercial company "Usta".

The judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic from three judges is not the constitutional judicial body as according to Items 1 and 2 of article 79 of the Constitution of the Kyrgyz Republic 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.

The right of implementation of supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek, is provided by Item 3 of article 84 of the Constitution of the Kyrgyz Republic to the Supreme Arbitration Court of the Kyrgyz Republic, but not its judicial structure.

Under the specified circumstances, the Constitutional court of the Kyrgyz Republic considers that the law-enforcement practice on this case established by unconstitutional judicial body is unconstitutional and contradicts Items 1 and 2 of Article 79, to Item 3 of article 84 of the Constitution of the Kyrgyz Republic, violating the constitutional rights of shareholders of joint-stock production and commercial company "Usta" 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 unconstitutional and inappropriate to Items 1, 2 Articles 79 and to Item 3 of article 84 of the Constitution of the Kyrgyz Republic the law-enforcement practice established by the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 6, 1998 on case on the claim of joint-stock production and commercial company "Usta" to Kyrgyzstan joint stock bank about recognition invalid transactions.

Satisfy the petition of joint-stock production and commercial company "Usta".

2. The resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 6, 1998 about partial allowance of the application of the acting as the chairman of the board of Kyrgyzstan joint stock bank about review according to the procedure of supervision of the decision of Arbitration Court of the city of Bishkek of August 12, 1998 is not subject to execution; to cancellation of the decision of Arbitration Court of the city of Bishkek of August 12, 1998 about recognition invalid the credit agreement and the pledge agreement of November 1, 1995 concluded between department "Uchkun" of Kyrgyzstan joint stock bank and joint-stock production and commercial company "Usta" and refusal in the claim of joint-stock production and commercial company "Usta" to Kyrgyzstan joint stock bank about recognition invalid transactions between joint-stock production and commercial company "Usta" and department "Uchkun" of Kyrgyzstan joint stock bank.

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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