NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of February 3, 1999

According to the petition of joint commercial Industrial Construction Bank of the Kyrgyz Republic for recognition unconstitutional and inappropriate to item 4 of Article 79, to Item 3 of Article 84, to Item 2 of Article 89 and article 90 of the Constitution of the Kyrgyz Republic of Items 1 and 4 of Article 153 of the Arbitral Procedure Code of the Kyrgyz Republic and law-enforcement practice established by determinations of July 20 and 21, 1998 and the resolution of September 4, 1998 of the Supreme Arbitration Court of the Kyrgyz Republic 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., Osmonova K. E., Satybekova S. S., Togoybayev..., Esenaliyeva K. E. and Esenkanova K. E.,

with participation of the court session secretary Kasymaliyev A. N., 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 February 1, 1999, the signed chairman of the board of joint commercial Industrial Construction Bank of the Kyrgyz Republic, the representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin Vladimir Ivanovich, acting on the basis of the power of attorney of October 23, 1998, the signed Chairman of the Supreme Arbitration Court of the Kyrgyz Republic and the representative of General Court of Jogorku Kenesh of the Kyrgyz Republic Ziyatdinov Bektemir Kamytovich who is acting on the basis of the power of attorney of October 28, 1998, 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 joint commercial Industrial Construction Bank of the Kyrgyz Republic for recognition unconstitutional and inappropriate to item 4 of Article 79, to Item 3 of Article 84, to Item 2 of Article 89 and article 90 of the Constitution of the Kyrgyz Republic of Items 1 and 4 of Article 153 of the Arbitral Procedure Code of the Kyrgyz Republic and law-enforcement practice established by determinations of July 20 and 21, 1998 and the resolution of September 4, 1998 of the Supreme Arbitration Court of the Kyrgyz Republic 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 Osmonov K. E., speeches of the chairman of the board of joint commercial Industrial Construction Bank of the Kyrgyz Republic Mukashev M. O. and the representative of this bankasadykov of N.B., representatives of the Supreme Arbitration Court of the Kyrgyz Republic - Tyurina V. I. and General Court of Jogorku Kenesh of the Kyrgyz Republic - Ziyatdinova B. K., having researched case papers, the Constitutional court of the Kyrgyz Republic ESTABLISHED:

In the Constitutional court of the Kyrgyz Republic on October 12 and on December 3, 1998 the petition of joint commercial industrially construction stock bank of the Kyrgyz Republic for recognition unconstitutional and inappropriate to item 4 of Article 79, to Item 3 of Article 84, to Item 2 of Article 89 and article 90 of the Constitution of the Kyrgyz Republic of Items 1 and 4 of Article 153 of the Arbitral Procedure Code of the Kyrgyz Republic and law-enforcement practice established by determinations of July 20 and 21, 1998 and the resolution of September 4, 1998 of the Supreme Arbitration Court of the Kyrgyz Republic 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.

Joint commercial Industrial Construction Bank of the Kyrgyz Republic brings the following arguments into reasons for the requirements. Determination of November 21, 1996 the Supreme Arbitration Court of the Kyrgyz Republic production stopped case on the claim of Kyrgyzpromstroybank joint stock bank to the State joint-stock company "Kyrgyzgosenergoholding" and Naryngidroenergostroy joint-stock company about collection of credit debt in the amount of 30 million 608 thousand som. This determination is cancelled by the resolution of appellate instance of the Supreme Arbitration Court of the Kyrgyz Republic of January 29, 1997, and the claim of joint-stock commercial Kyrgyzpromstroybank is left without satisfaction. The resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of March 18, 1997 repeals the resolution of appellate instance of the Supreme Arbitration Court of the Kyrgyz Republic of January 29, 1997 and from the State-owned joint-stock holding power company of the Kyrgyz Republic for benefit of joint commercial Industrial Construction Bank of the Kyrgyz Republic is exacted 30 million 608 thousand som, the Naryngidroenergostroy joint-stock company is exempted from liability. Determination of March 11, 1998, judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic (Kayypov M. T., Rybalkina A. D., Bekishov D.), according to the statement of Kyrgyzenergo joint-stock company for review on newly discovered facts, cancelled all previous determinations and resolutions of the Supreme Arbitration Court of the Kyrgyz Republic and directed case for consideration on the merits to Arbitration Court of the city of Bishkek.

The Arbitration Court of the city of Bishkek the decision of May 22, 1998 collected from Kyrgyzenergo joint-stock company for benefit of joint commercial Industrial Construction Bank of the Kyrgyz Republic of 30 million 603 thousand som, exempted Naryngidroenergostroy joint-stock company from liability. This judgment is left by the resolution of appellate instance of Arbitration Court of the city of Bishkek of June 23, 1998 without change. On July 6, 1998 the Kyrgyzenergo joint-stock company appealed to the Supreme Arbitration Court of the Kyrgyz Republic with the claim according to the procedure of supervision. Determination of the judge of the Supreme Arbitration Court of the Kyrgyz Republic Bekishov D., of July 20, 1998, 14 days later after submission of the supervising claim, in defiance of Item 1 of Article 153 of the Arbitral Procedure Code of the Kyrgyz Republic, accepts to production the claim of Kyrgyzenergo joint-stock company about review of the decision of May 22, 1998 and the resolution of appellate instance of June 23, 1998 of Arbitration Court of the city of Bishkek. It, determination of July 21, 1998, based on item 4 of Article 153 of the Arbitral Procedure Code of the Kyrgyz Republic suspended execution appealed decisions and resolutions of Arbitration Court of the city of Bishkek.

Items 1 and 4 of Article 153 of the Arbitral Procedure Code of the Kyrgyz Republic and individual determination on behalf of the Supreme Arbitration Court of the Kyrgyz Republic of the judge Bekishov D. contradict Item 3 of article 84 of the Constitution of the Kyrgyz Republic and article 8 of the Law of the Kyrgyz Republic "About system of Arbitration Courts of the Kyrgyz Republic" of December 1, 1997 according to which only the Supreme Arbitration Court of the Kyrgyz Republic exercises supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek. Supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic as a part of the chairman Kayypov M. T., Bazarkulov K. K. judges. and Bekishova D., the resolution of September 4, 1998, having cancelled the decision of May 22, 1998 and the resolution of appellate instance of June 23, 1998 of Arbitration Court of the city of Bishkek, violated requirements of item 4 of Article 79, of Item 3 of Article 84 and Item 2 of article 89 of the Constitution of the Kyrgyz Republic and constitutional rights of joint commercial Industrial Construction Bank of the Kyrgyz Republic on the property, its immunity and protection, economic freedom and not violated right of defense at any stage of consideration of legal case guaranteed by the articles 4,16,19 and Item 2 of article 88 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., having completely supported the petition, ask it to satisfy.

Representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I., objecting to the petition, asks to leave it without satisfaction, and the constitutional legal proceedings - to stop.

Representative of General Court of Jogorku Kenesh of the Kyrgyz Republic Ziyatdinov B. K., having partially agreed with petition arguments, asks to meet requirements about recognition unconstitutional and inappropriate to Item 3 of article 84 of the Constitution of the Kyrgyz Republic of item 4 of Article 153 of the Arbitral Procedure Code of the Kyrgyz Republic.

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.

By materials of arbitration case it is determined that the credit agreement according to which the National commercial Industrial Construction Bank of the Kyrgyz Republic provided to management of construction Naryngidroenergostroy long-term loan in the amount of 40 million rubles and short-term loans in the amount of 12 million 500 thousand som according to credit agreements of April 29 and on July 6, 1993 on financing of "turnkey" construction for the purpose of ensuring commissioning in 1994-1999 of start-up complex of Kambaratinsky and Shamalduu-Saysky hydroelectric power station was signed on October 1, 1991.

Because of default of loan debt and percent on the loan joint commercial Industrial Construction Bank of the Kyrgyz Republic took a legal action with the action of debt on credit to the amount of 30 million 608 thousand som from the borrower's legal successor - the State and joint-stock holding power company of the Kyrgyz Republic.

Case on this claim was from October 4, 1996 to April 20, 1998 in production of the Supreme Arbitration Court of the Kyrgyz Republic which made judgments both on satisfaction, and on refusal in the claim, and on May 7, 1998 it was sent to Arbitration Court of the city of Bishkek for consideration on the merits.

Claims of JSC Kyrgyzpromstroybank are satisfied with the decision of Arbitration Court of the city of Bishkek of May 22, 1998 partially, 30603000 som of debt are recovered from the account of operation of Kyrgyzenergo joint-stock company for benefit of joint commercial Industrial Construction Bank of the Kyrgyz Republic, regarding debt collection from Naryngidroznergostroy joint-stock company claims are left without satisfaction.

This decision, is left by the resolution of appellate instance of Arbitration Court of the city of Bishkek of June 23, 1998 without change, and the petition for appeal of Kyrgyzenergo joint-stock company - without satisfaction.

The Kyrgyzenergo joint-stock company appealed on July 10, 1998 to the Supreme Arbitration Court of the Kyrgyz Republic with the statement for review according to the procedure of supervision of the specified judgments on collection of 30 million 608 thousand som.

The chairman of the Supreme Arbitration Court of the Kyrgyz Republic, on July 16, 1998, in writing determined judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic, having included the chairman Kayypov M. T., judge Bazarkulov K. K. and the judge-speaker Bekishov D. for consideration of the application about review of the decision and resolution in the matter of No. B-155/6 according to the procedure of supervision.

The judge-speaker, instead of reporting the statement on judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic, determination of July 20, 1998, being guided by Article 153 of the Arbitral Procedure Code of the Kyrgyz Republic, accepted the statement for review of the decision and the resolution of Arbitration Court of the city of Bishkek according to the procedure of supervision to production and solely appointed to trial in judicial session to August 18, 1998, also determination of July 21, 1998 solely suspended execution of the decision of May 22, 1998 and the resolution of appellate instance of June 23, 1998 of Arbitration Court of the city of Bishkek before consideration of the case according to the procedure of supervision.

The specified judicial structure of supervising instance determined by the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic instead of consideration of the application of JSC Kyrgyzenergo according to the procedure of supervision, passed to consideration of the case No. B 155/6, appointed solely the judge and the resolution of September 4, 1998 cancelled the decision of May 22, 1998 and the resolution of appellate instance of June 23, 1998 of Arbitration Court of the city of Bishkek, having left without satisfaction the action for declaration of JSC Kyrgyzpromstroybank about collection with JSC Kyrgyzenergo and JSC Naryngidroenergostroy of 30608 thousand som.

The constitutional court of the Kyrgyz Republic considers that the law-enforcement practice established by the resolution on consideration of the case by judicial structure supervising instances of the Supreme Arbitration Court of the Kyrgyz Republic and also determinations about acceptance to production of case and appointment it to legal proceedings, the solution of question of suspension of execution of the appealed court decrees solely by the judge, violates constitutional rights of joint commercial Industrial Construction Bank of the Kyrgyz Republic on property, providing its rights with justice and judicial protection guaranteed by Item 1 of Article 4, item 4 of Article 15 and Item 2 of article 38 of the Constitution of the Kyrgyz Republic.

Realization of the rights to providing with justice and judicial protection, according to Item 1 of article 79 of the Constitution of the Kyrgyz Republic, is performed only by court. Item 2 of article 79 of the Constitution of the Kyrgyz Republic provides 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. Therefore, the judicial structure of supervising instance of the Supreme Arbitration Court is not the constitutional judicial body and has no right to exercise supervision of judgments of Arbitration Court of the city of Bishkek.

Determinations of the judge Bekishov D. B. of July 20 and 21, 1998 about acceptance to production of the statement of JSC Kyrgyzenergo for review of the decision, resolution according to the procedure of supervision, purpose of case to trial in judicial session and suspension of execution of the court decrees appealed according to the procedure of supervision, and also Article 153 of the Arbitral Procedure Code of the Kyrgyz Republic granting the right of the solution of these questions solely to the judge as, article 84 of the Constitution of the Kyrgyz Republic on implementation of supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek authorized the Supreme Arbitration Court of the Kyrgyz Republic are unconstitutional.

In spite of the fact that the procedure of administration of law providing judicial protection shall correspond to the constitutional principles, the named judges of the Supreme Arbitration Court of the Kyrgyz Republic, being guided by unconstitutional Article 153 of the Arbitral Procedure Code of the Kyrgyz Republic and accepting the specified unconstitutional resolutions, ignored the principles of rule of the Constitution of the Kyrgyz Republic and subordination of the judge only to the Constitution and the law set by Article 12 and item 4 of article 79 of the Constitution of the Kyrgyz Republic.

Based on stated and being guided by subitems 1 and 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 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 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.

2. Cancel operation of article 153 of the Arbitral Procedure Code of the Kyrgyz Republic.

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

3. Are not subject to execution:

- determination 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 May 22, 1998 and the resolution of appellate instance of June 23, 1998 Arbitration Court of the city of Bishkek according to the procedure of supervision in the matter of No. B-155/6 in the claim of JSC Kyrgyzpromstroybank to JSC Kyrgyzenergo and JSC Naryngidroenergostroy about debt collection on credit to the amount of 30 million 608 thousand som and the national duties of 208 thousand 40 som;

- 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 in the matter of No. B-155/6 before consideration of the case according to the procedure of supervision;

- 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 in the matter of No. B-155/6 and leaving without satisfaction of the action for declaration of JSC Kyrgyzpromstroybank about collection with JSC Kyrgyzenergo and JSC Naryngidroenergostroy of 30608 thousand som.

4. The final decision, is not subject to appeal. Surely to execution by all state bodies, officials and citizens.

5. 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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