NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of July 12, 1999

According to the petition of Tattuu joint-stock company for recognition to unconstitutional and inappropriate Article 4, to Item 2 of Article 7, to Item 2 of Article 16, to Items 1 and 2 of Article 19, to Articles 38 and 79, 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 the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of November 6, 1998 on case on the claim of the prosecutor of Chuy Region for the benefit of the state joint-stock company "Kaindy-Kant" to Tattuu joint-stock company about collection of receivables in the amount 3580144 som of 30 tyyyn

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., 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 Tattuu joint-stock company Verkhovskaya Galina Georgiyevna 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 May 24, 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 Tattuu joint-stock company for recognition to unconstitutional and inappropriate Article 4, to Item 2 of Article 7, to Item 2 of Article 16, to Items 1 and 2 of Article 19, to Articles 38 and 79, to Items 2 and 3 of Article 84 and article 88 of the Constitution of the Kyrgyz Republic of law-enforcement practice, the supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic established by the resolution of judicial structure of November 6, 1998 on case on the claim of the prosecutor of Chuy Region for the benefit of the state joint-stock company "Kaindy-Kant" to Tattuu joint-stock company about collection of receivables in the amount 3580144 som of 30 tyyyn.

Having heard the report of the vice-chairman of the Constitutional court of the Kyrgyz Republic Sutalinov A. A., speeches of the chairman of the board of Tattuu joint-stock company Verkhovskaya G. G. and 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:

On May 11, 1999 in the Constitutional court of the Kyrgyz Republic the petition of Tattuu joint-stock company for recognition to unconstitutional and inappropriate Article 4, to Item 2 of Article 7, to Item 2 of Article 16, to Items 1 and 2 of Article 19, to Articles 38 and 79, 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 the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of November 6, 1998 on case on the claim of the prosecutor of Chuy Region for the benefit of the state joint-stock company "Kaindy-Kant" to Tattuu joint-stock company about collection of receivables in the amount 3580144 som of 30 tyyyn arrived.

The Tattuu joint-stock company brings the following arguments into reasons for the petition. The law-enforcement practice established by the specified court decree violates the right to property of Tattuu joint-stock company guaranteed by the Constitution of the Kyrgyz Republic. According to article 4 of the Constitution of the Kyrgyz Republic, in the Kyrgyz Republic are recognized and protected state, utility, private and other patterns of ownership also are guaranteed their equal legal protection. Item 2 of article 38 of the Constitution of the Kyrgyz Republic guarantees judicial protection of all rights and freedoms of the citizens fixed by the Constitution and the laws. Judicial protection of the property right of Tattuu joint-stock company shall be performed by judicial bodies, stipulated in Item 2 articles 79 of the Constitution of the Kyrgyz Republic according to which courts in 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. Creation and organization of emergency, special courts and positions of judges is not allowed. In defiance of this requirement of the Constitution of the Kyrgyz Republic, the order of the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic created judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic from the chairman Bazarkulov K. K., judges Amanaliyevy B. K. and Bekishov D. who considered and accepted on case the resolution of November 6, 1998, having established the law-enforcement practice contradicting Item 3 of article 84 of the Constitution of the Kyrgyz Republic that supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek performs the Supreme Arbitration Court of the Kyrgyz Republic. Besides it violates constitutional rights of Tattuu joint-stock company on equality of all before the law and court, on the property and its protection in proper judicial authority guaranteed by Article 4, Item 3 of Article 15, Item 2 of Article 16, Item 2 of Article 19, Item 3 of Article 84, Item 1 of Article 87 and Item 2 of article 88 of the Constitution of the Kyrgyz Republic.

In judicial session the chairman of the board of Tattuu joint-stock company Verkhovskaya G. G., having supported the petition, asks it to satisfy.

Representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I., without having agreed with the petition, asks to refuse its satisfaction, and to stop the constitutional legal proceedings because the solution of the Constitutional court of the Kyrgyz Republic of January 29, 1999 Article 148 of the Arbitral Procedure Code of the Kyrgyz Republic is already recognized as unconstitutional.

According to part 4 of article 22 of the Law "About the Constitutional Legal Proceedings of the Kyrgyz Republic" cancellation or loss of force of the act which constitutionality is disputed involves refusal in initiation of the constitutional legal proceedings or the termination of the constitutional legal proceedings on the initiated 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 claim of the prosecutor of Chuy Region for the benefit of the state joint-stock company "Kaindy-Kant" is satisfied with the decision of Arbitration Court of the city of Bishkek of July 29, 1998 partially. Regarding collection of principal debt under the agreement No. 239 of December 30, 1997 in the amount of 2026846 som the claim is satisfied. Regarding debt collection from Tattuu joint-stock company under the agreement No. 277 of December 30, 1997 and collection of the amount of penalty in the amount of 1558297 som under the agreement No. 239 of October 31, 1997 it is refused. 93 tyyyna of the national duty and 25 som postage expenses are collected from the settlement account of Tattuu joint-stock company for benefit of the state joint-stock company "Kaindy-Kant" 2026846 catfishes of 96 tyyyn of principal debt and 50536 som.

The resolution of appellate instance of Arbitration Court of the city of Bishkek of September 7, 1998, the decision of Arbitration Court of the city of Bishkek of July 29, 1998 is left without change, and the petition for appeal of the prosecutor of Chuy Region - without satisfaction.

According to the statement of the prosecutor of Chuy Region for review of the specified court decrees, the order of October 14, 1998, the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic created judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic as a part of the chairman Bazarkulov K. K., Amanaliyev B. K. judges. and Bekishov D. B. who the resolution of November 6, 1998, being guided by Article 148 of the Arbitral Procedure Code of the Kyrgyz Republic, left the resolution of appellate instance of Arbitration Court of the city of Bishkek of September 7, 1998 on case on the claim of the prosecutor of Chuy Region for the benefit of the state joint-stock company "Kaindy-Kant" to Tattuu joint-stock company without change, and the statement of the prosecutor of Chuy Region - without satisfaction.

The constitutional court of the Kyrgyz Republic, earlier, the decision of January 29, 1998 recognized Article 148 of the Arbitral Procedure Code of the Kyrgyz Republic to unconstitutional and inappropriate Article 79 and Item 3 of article 84 of the Constitution of the Kyrgyz Republic and cancelled its action.

Therefore, are unconstitutional as the judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic which accepted on case the resolution of November 6, 1998 and the law-enforcement practice established by this resolution in defiance of requirements of Items 1, 2 Article 79 and Item 3 of article 84 of the Constitution of the Kyrgyz Republic.

This law-enforcement practice violates the constitutional rights of Tattuu joint-stock company on judicial protection of property guaranteed by Item 2 of Article 16 and Item 2 of article 38 of the Constitution of the Kyrgyz Republic.

In the petition of Tattuu joint-stock company the question of recognition of unconstitutional Article 148 of the Arbitral Procedure Code of the Kyrgyz Republic in this connection arguments of the representative of the Supreme Arbitration Court of the Kyrgyz Republic about the termination of the constitutional legal proceedings on case are unreasonable is not put.

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 November 6, 1998 on case on the claim of the prosecutor of Chuy Region for the benefit of the state joint-stock company "Kaindy-Kant" to Tattuu joint-stock company about collection of receivables in the amount 3580144 som of 30 tyyyn.

Satisfy the petition of Tattuu joint-stock company.

2. The resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of November 6, 1998 about leaving without change of the resolution of appellate instance of Arbitration Court of the city of Bishkek of September 7, 1998 on case B-221/4 on the claim of the prosecutor of Chuy Region for the benefit of the state joint-stock company "Kaindy-Kant" to Tattuu joint-stock company, and the statement of the prosecutor of Chuy Region - without satisfaction 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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