NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of May 6, 1999

According to the petition of National Bank of the Kyrgyz Republic for recognition of Article unconstitutional and inappropriate to Item 2 7, to Item 3 of Article 15, to Items 3 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 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 29, 1998 on case on the claim of Khan Tengri joint-stock company to National Bank of the Kyrgyz Republic about collection of the amount of 1531020 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 J. Dzh., Esenaliyeva K. E. and Esenkanova K. E.,

with participation of the court session secretary Kasymaliyev A. N.,

parties: representatives of National Bank of the Kyrgyz Republic - the vice chairman of the board of National Bank of the Kyrgyz Republic of Omorov Zhanybek Duyshonbekovich and Chilnikina Tatyana Ivanovna, the acting on the basis of the powers of attorney of January 28 and on April 30, 1999, the signed acting as the Chairman of the board of National Bank of the Kyrgyz Republic, 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 15, 1999, 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 National Bank of the Kyrgyz Republic for recognition of Article unconstitutional and inappropriate to Item 2 7, to Item 3 of Article 15, to Items 3 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 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 29, 1998 on case on the claim of Khan Tengri joint-stock company to National Bank of the Kyrgyz Republic about collection of the amount of 1531020 som.

Having heard the report of the judge Esenaliyev K. E., speeches of representatives of National Bank of the Kyrgyz Republic of Omorov Zh. D. and Chilnikina T. I., 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 National Bank of the Kyrgyz Republic for recognition of Article unconstitutional and inappropriate to Item 2 7, to Item 3 of Article 15, to Items 3 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 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 29, 1998 on case on the claim of Khan Tengri joint-stock company to National Bank of the Kyrgyz Republic about collection of the amount of 1531020 som arrived on February 3, 1999.

The National Bank of the Kyrgyz Republic brings the following arguments into reasons for the requirements. By the decision of Arbitration Court of the city of Bishkek of June 16, 1998 it is collected from the settlement account of National Bank of the Kyrgyz Republic for benefit of Khan Tengri joint-stock company 1531020 catfishes of principal debt and 40645 som of the state fee. The decision of Arbitration Court of the city of Bishkek is left by the resolution of appellate instance of Arbitration Court of the city of Bishkek of August 17, 1998 without change.

The application of National Bank of the Kyrgyz Republic for review according to the procedure of supervision of the specified court resolutions of Arbitration Court of the city of Bishkek was considered not by the Supreme Arbitration Court of the Kyrgyz Republic which according to Item 3 of article 84 of the Constitution of the Kyrgyz Republic is granted the supervision implementation right, but judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic, than the procedure of administration of law is violated.

According to Items 3 and 4 of article 79 of the Constitution of the Kyrgyz Republic - the organization and procedure for activity of the courts are determined by the law, the judge submits only to the Constitution and the law, the principles of justice according to article 90 of the Constitution of the Kyrgyz Republic are general and single for all courts and judges therefore nobody other, except the Supreme Arbitration Court of the Kyrgyz Republic had the right to consider case according to the procedure of supervision. Implementation by judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of law-enforcement practice with violation of the constitutional principles of justice, general and single for all courts and judges, entailed in addition to violation of property rights and guaranteed by Item 3 of article 15 of the Constitution of the Kyrgyz Republic of the right of the National Bank to equal judicial protection owing to equality of all before the law and court and also guaranteed by Item 2 of article 88 of the Constitution of the Kyrgyz Republic of the right to equal judicial protection at any stage of legal procedure.

In judicial session representatives of National Bank Omorov Zh. D. and Chilnikina T. I., having supported the petition, ask it to satisfy.

Representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I., without having agreed with the petition, asks to leave it without satisfaction and to stop proceeedings.

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 Arbitration Court of the city of Bishkek satisfied the action for declaration of Khan Tengri joint-stock company to National Bank of the Kyrgyz Republic about collection of 1531020 som and 40645 som of the state fee with the decision of June 16, 1998. Collected from the settlement account of National Bank of the Kyrgyz Republic for benefit of Khan Tengri joint-stock company 1571665 catfishes.

The decision of Arbitration Court of the city of Bishkek of June 16, 1998 is left by the resolution of appellate instance of Arbitration Court of the city of Bishkek of August 17, 1998 without change, and the petition for appeal - without satisfaction.

The National Bank of the Kyrgyz Republic appealed to the Supreme Arbitration Court of the Kyrgyz Republic with the statement for review according to the procedure of supervision of the specified court decrees of Arbitration Court of the city of Bishkek. The chairman of the Supreme Arbitration Court of the Kyrgyz Republic for consideration of this statement in writing determined on September 24, 1998 judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic under the chairmanship of Alpiyeva A. N., Luchkov G. A. judges. and Rybalkina A. D.

This judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic, and the resolution of appellate instance of Arbitration Court of the city of Bishkek of August 17, 1998 satisfied the statement of National Bank of the Kyrgyz Republic for review according to the procedure of supervision of the decision of Arbitration Court of the city of Bishkek of June 16, 1998 with the resolution of October 29, 1998 partially. And the resolution of appellate instance of Arbitration Court of the city of Bishkek of August 17, 1998 in the matter of No. B-115/3 in the claim of Khan Tengri joint-stock company to National Bank of the Kyrgyz Republic about collection of 1531020 som changed the decision of Arbitration Court of the city of Bishkek of June 16, 1998. Collected from the settlement account of National Bank of the Kyrgyz Republic for benefit of Khan Tengri joint-stock company 1531020 catfishes. Refused the claim to Khan Tengri joint-stock company about collection from National Bank of the Kyrgyz Republic of 40645 som of the state fee.

According to Item 3 of article 84 of the Constitution of the Kyrgyz Republic the right of implementation of supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek the Supreme Arbitration Court of the Kyrgyz Republic has. Justice in the Kyrgyz Republic, according to Item 1 of article 79 of the Constitution of the Kyrgyz Republic is performed only by court, and Item 2 of the same Article 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 and 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 constitutional court of the Kyrgyz Republic considers that the judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic from three judges determined by its Chairman cannot be the constitutional judicial body and establishment of court practice by it is unconstitutional and violates the constitutional rights of National Bank of the Kyrgyz Republic on equal legal protection of property in the constitutional judicial body guaranteed by Item 1 of Article 4 and Item 3 of article 88 of the Constitution of the Kyrgyz Republic.

Under the specified circumstances 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 29, 1998 on case on the claim of Khan Tengri joint-stock company to National Bank of the Kyrgyz Republic about collection of the amount of 1531020 som is unconstitutional and there do not correspond to Items 1, 2 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, 14 Laws "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 29, 1998 on case on the claim of Khan Tengri joint-stock company to National Bank of the Kyrgyz Republic about collection of the amount of 1531020 som.

Satisfy the petition of National Bank of the Kyrgyz Republic.

2. The resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 29, 1998 about partial allowance of the application of National Bank of the Kyrgyz Republic about review according to the procedure of supervision of the decision of Arbitration Court of the city of Bishkek of June 16, 1998 and the resolution of appellate instance of Arbitration Court of the city of Bishkek of August 17, 1998, change of the decision of Arbitration Court of the city of Bishkek of June 16, 1998 and the resolution of appellate instance of Arbitration Court of the city of Bishkek of August 17, 1998 in the matter of No. B-115/3 in the claim of Khan Tengri joint-stock company to National Bank of the Kyrgyz Republic about collection of 1531020 som, collection from the settlement account of National Bank of the Kyrgyz Republic for benefit of Khan Tengri joint-stock company of 1531020 som is not subject to execution, about refusal to Khan Tengri joint-stock company in collection from National Bank of the Kyrgyz Republic of the state fee - 40645 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", in newspapers: "Tuusu's Kyrgyz", "Word of Kyrgyzstan", "Erkin Too" and "Our newspaper".

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