NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of March 3, 1999

According to the petition of public joint stock company Russian-Kyrgyz Amanbank about recognition of Article unconstitutional and inappropriate to Item 2 7, to the paragraph of the 13th Item 2 of Article 16, to Items 1 and 2 of Article 19, to Articles 38 and 79, to Item 3 of Article 82, to Items 2 and 3 of Article 84 and article 88 of the Constitution of the Kyrgyz Republic of the law-enforcement practice established by determination of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 3, 1998 about review on newly discovered facts of resolutions of June 25, 1996 of cassation instance and of October 31, 1996 Presidium of the Supreme Arbitration Court of the Kyrgyz Republic on case on the claim of Almaz joint-stock company to public joint stock company Russian-Kyrgyz Amanbank (earlier Ak-Niyet joint stock bank) about collection of the amount of 11201000 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 Zh. Zh. and Esenaliyeva K. E.,

with participation of the court clerk Dyushenaliyeva E. S.,

the parties - the chairman of the board of public joint stock company Russian-Kyrgyz Amanbank Kudabayeva Shatkul Isaliyevny and the representative of this joint-stock company Yeliseyev Alexey Aleksandrovich who is acting on the basis of the power of attorney of September 29, 1998, the signed chairman of the board of public joint stock company Russian-Kyrgyz Amanbank, 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 September 17, 1998, 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 public joint stock company Russian-Kyrgyz Amanbank about recognition of Article unconstitutional and inappropriate to Item 2 7, to the paragraph of the 13th Item 2 of Article 16, to Items 1 and 2 of Article 19, to Articles 38 and 79, to Item 3 of Article 82, to Items 2 and 3 of Article 84 and article 88 of the Constitution of the Kyrgyz Republic of the law-enforcement practice established by determination of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 3, 1998 about review on newly discovered facts of resolutions of June 25, 1996 of cassation instance and of October 31, 1996 Presidium of the Supreme Arbitration Court of the Kyrgyz Republic on case on the claim of Almaz joint-stock company to public joint stock company Russian-Kyrgyz Amanbank (earlier Ak-Niyet joint stock bank) about collection of the amount of 11201000 som.

Having heard the report of the judge Dryzhak P. N., speech of the chairman of the board of public joint stock company Russian-Kyrgyz Amanbank Kudabayeva Sh. I. and representative of this joint-stock company Yeliseyev 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 public joint stock company Russian-Kyrgyz Amanbank about recognition of Article unconstitutional and inappropriate to Item 2 7, to the paragraph of the 13th Item 2 of Article 16, to Items 1 and 2 of Article 19, to Articles 38 and 79, to Item 3 of Article 82, to Items 2 and 3 of Article 84 and article 88 of the Constitution of the Kyrgyz Republic of the law-enforcement practice established by determination of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 3, 1998 about review on newly discovered facts of resolutions of June 25, 1996 of cassation instance and of October 31, 1996 Presidium of the Supreme Arbitration Court of the Kyrgyz Republic on case on the claim of Almaz joint-stock company to public joint stock company Russian-Kyrgyz Amanbank (earlier Ak-Niyet joint stock bank) about collection of the amount of 11201000 som on July 24, 1998 arrived.

In reasons for the petition public joint stock company Russian-Kyrgyz Amanbank refers to the fact that determination of July 3, 1998 judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic (in structure: chairman Kayypov M. T., judges - Bazarkulova K. K. and Dzhumashova K. O.), having granted the application of Almaz joint-stock company for review on newly discovered facts of resolutions of June 25, 1996 of cassation instance and of October 31, 1996 Presidium of the Supreme Arbitration Court of the Kyrgyz Republic on case on the claim of Almaz joint-stock company to Ak-Niyet joint stock bank about collection of the amount of 11201000 som, established the law-enforcement practice contradicting the Constitution of the Kyrgyz Republic. The judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic counted as newly discovered fact solutions of the Constitutional court of the Kyrgyz Republic of June 11 and on December 14, 1997 about recognition unconstitutional Chapter 23 "Production in cassation instance" both Articles 162, and 166 Arbitral Procedure Codes of the Kyrgyz Republic. The judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic was guided by Article 164 of the Arbitral Procedure Code of the Kyrgyz Republic which determined the list of the bases for review of court resolutions by newly discovered facts in which the solution of the Constitutional court of the Kyrgyz Republic is not included.

The constitution of the Kyrgyz Republic is enacted on May 5, 1993 and from this point its regulations are obligatory for the Supreme Arbitration Court of the Kyrgyz Republic obliged to perform justice within the powers conferred to it not contrary to, and according to Item 2 of Article 7, Item 2 of Article 84 and Item 1 of article 87 of the Constitution of the Kyrgyz Republic.

Judicial protection of constitutional right on property of public joint stock company Russian-Kyrgyz Amanbank stipulated in Item 2 Articles 16, Items 1 and 2 of Article 19, was broken by articles 38 and 88 of the Constitution of the Kyrgyz Republic as unconstitutional judicial body is the judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic which performed review on newly discovered facts taken place earlier on case the resolution of June 25, 1996 of cassation instance and of October 31, 1996 Presidium of the Supreme Arbitration Court of the Kyrgyz Republic.

In judicial session chairman of the board of public joint stock company Russian-Kyrgyz Amanbank Kudabayeva Sh. I. and representative of this society Yeliseyev A. A., having supported the petition, asked it to satisfy.

Representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I., without having agreed with the petition, asked to refuse its 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 case papers it is visible that the decision of the judge (Dvornitsyn V. S.) of the Supreme Arbitration Court of the Kyrgyz Republic of June 29, 1995 from the settlement account of republican joint-stock commercial bank "Ak-Niyet" for benefit of Almaz joint-stock company collects the amount of 11201000 som of principal debt, 56000 som of the national duty.

The resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of June 25, 1996 (structure - Kovalenko G. G., Alpiyev A. N., Bekeshov T. R.) the specified judgment is changed, the amount of 4140778 som 42 tyyyn is collected from Amanbank commercial bank (the former joint stock bank "Ak-Niyet") for benefit of Almaz joint-stock company, other part of the claim it is refused.

On representation of the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic, the Presidium of the Supreme Arbitration Court of the Kyrgyz Republic created by its order No. 16/72 of October 28, 1996 (in structure: chairman Narymbayev D. I., judges: Luchkova G. A., Temirbekova L. and Bekbolotov A.), the resolution of October 31, 1996 cancelled the decision of the judge of the Supreme Arbitration Court of the Kyrgyz Republic of June 29, 1995 and the resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of June 25, 1996 on case on the claim of Almaz joint-stock company to commercial society "Amanbank" about collection of the amount of 11201000 som, refused the claim of Almaz joint-stock company.

After two years, determination of July 3, 1998 the judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic created on June 19, 1998 by Kayypovy M. T., the acting as the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic (as a part of the vice-chairman of the Supreme Arbitration Court of the Kyrgyz Republic Kayypov M. T., K.K. and Dzhumashev K. O. sudeybazarkulova.) granted the application of Almaz joint-stock company for review on newly discovered facts of resolutions of June 25, 1996 of cassation instance and of October 31, 1996 Presidium of the Supreme Arbitration Court of the Kyrgyz Republic on case, cancelled these court decrees and appointed its consideration according to the procedure of supervision to August 13, 1998 according to claims of public joint stock company Russian-Kyrgyz Amanbank of July 27, 1995 and of July 22, 1996.

The called determination demonstrates that the judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic on July 3, 1998 under the pretext of review of court decrees on newly discovered facts, practically performed their review according to the procedure of supervision. It is confirmed also by the fact that judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic in the above-stated structure, the acting as the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic Kayypov M. T., determined on June 19, 1998 for consideration of the application about review according to the procedure of supervision of resolutions in the matter of No. 436/8 (л.д. 128 t. 3). Thereby requirements of Item 3 of article 84 of the Constitution of the Kyrgyz Republic which granted the right of implementation of supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek only to the Supreme Arbitration Court of the Kyrgyz Republic are violated.

In the Kyrgyz Republic according to Items 1 and 2 of article 4 of the Constitution of the Kyrgyz Republic are recognized and protected state, utility, private and other patterns of ownership, their equal legal protection is guaranteed. Realization of the right to providing with justice and judicial protection is assigned only to the constitutional judicial bodies.

The constitution of the Kyrgyz Republic provides in Item 1 of Article 79 that justice in the Kyrgyz Republic is performed only by court, in Item 2 of this Article is determined 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, and the item 4 of the same Article obliges the judge to submit only to the Constitution and the law. Therefore, forming of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic and establishment of law-enforcement practice by it, is unconstitutional and Russian-Kyrgyz Amanbank on property, on providing with justice and judicial protection, stipulated in Item 1 Articles 4, with item 4 of Article 15 and article 38 of the Constitution of the Kyrgyz Republic violates constitutional rights of public joint stock company.

The constitutional court of the Kyrgyz Republic considers the law-enforcement practice established by determination of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 3, 1998 about review on newly discovered facts of resolutions of June 25, 1996 of cassation instance and of October 31, 1996 Presidium of the Supreme Arbitration Court of the Kyrgyz Republic in the matter of No. 436/8 in the claim of Almaz joint-stock company to public joint stock company Russian-Kyrgyz Amanbank about collection of the amount of 11201000 som unconstitutional and inappropriate to Items 1, 2 both 4 Articles 79 and to Item 3 of article 84 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", the articles 10,11,13,14, 24, of 25, 29 and 30 Laws "About the Constitutional Legal Proceedings of the Kyrgyz Republic", the Constitutional court of the Kyrgyz Republic

Solved:

1. Recognize unconstitutional and inappropriate to Items 1, 2 both 4 Articles 79 and to Item 3 of article 84 of the Constitution of the Kyrgyz Republic the law-enforcement practice established by determination of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 3, 1998 about review on newly discovered facts of resolutions of June 25, 1996 of cassation instance and of October 31, 1996 Presidium of the Supreme Arbitration Court of the Kyrgyz Republic in the matter of No. 436/8 in the claim of Almaz joint-stock company to public joint stock company Russian-Kyrgyz Amanbank about collection of the amount of 11201000 som.

Satisfy the petition of public joint stock company Russian-Kyrgyz Amanbank.

2. Determination of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 3, 1998 about allowance of the application of Almaz joint-stock company about review on newly discovered facts of resolutions of June 25, 1996 of cassation instance and of October 31, 1996 Presidium of the Supreme Arbitration Court of the Kyrgyz Republic in the matter of No. 436/8 and cancellation of these resolutions, purpose of consideration of the case No. 436/8 on claims of public joint stock company Russian-Kyrgyz Amanbank of July 27, 1995 and of July 22, 1996 according to the procedure of supervision for August 13, 1998 is not subject to execution.

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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