NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of July 14, 1999

According to the petition of "Kantsky Cement and Slate Plant" public joint stock company 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 July 3, 1998 and not subject to execution of the decision of Arbitration Court of the city of Bishkek of September 22, 1998 on case on the claim of "Kantsky Cement and Slate Plant" public joint stock company to the State-owned joint stock company "Kyrgyzgazmunayzat" about collection of 647605 som of the caused material damage

Constitutional court of the Kyrgyz Republic in structure: chairman vice-chairman Sutalinov A. A., judges - Dryzhaka P. N., Osmonova K.E., Satybekov S. S., Togoybayev Zh. Zh., Esenaliyeva K. E. and Esenkanova K. E.,

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

parties: representatives of "Kantsky Cement and Slate Plant" public joint stock company - the CEO of this plant Bezsmertny Ilya Semenovich and Tananykina Galina Alekseevna who is acting on the basis of the power of attorney of April 27, 1999, signed by the CEO of "Kantsky Cement and Slate Plant" public joint stock company, 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 April 20, 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 "Kantsky Cement and Slate Plant" public joint stock company 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 July 3, 1998 and unliable to execution of the decision of Arbitration Court of the city of Bishkek of September 22, 1999 on case on the claim of "Kantsky Cement and Slate Plant" public joint stock company to the State-owned joint stock company "Kyrgyzgazmunayzat" about collection of 647605 som of the caused material damage.

Having heard the report of the judge Esenaliyev K. E., speeches of representatives - "Kantsky Cement and Slate Plant" public joint stock company of Bezsmertny I. S. and Tananykina G. A., Supreme Arbitration Court of the Kyrgyz Republic of 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 "Kantsky Cement and Slate Plant" public joint stock company 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 July 3, 1998 and not subject to execution of the decision of Arbitration Court of the city of Bishkek of September 22, 1998 on case on the claim of "Kantsky Cement and Slate Plant" public joint stock company to the State-owned joint stock company "Kyrgyzgazmunayzat" about collection of 647605 som of the caused material damage arrived on April 13, 1999.

The "Kantsky Cement and Slate Plant" public joint stock company brings the following arguments into reasons for the requirements. The decision of Arbitration Court of Bishkek of February 23, 1998 from the settlement account of the State-owned joint stock company "Kyrgyzgazmunayzat" for benefit of the State joint-stock company "Kantsky Cement and Slate Plant" exacts 647605 som of the caused material damage and 22952 som of the national duty.

The decision of Arbitration Court of Bishkek is left by the resolution of appellate instance of Arbitration Court of the city of Bishkek of April 24, 1998 without change.

Having adopted the statement of the State-owned joint stock company "Kyrgyzgazmunayzat" for review according to the procedure of supervision of the specified court resolutions of Arbitration Court of the city of Bishkek and having considered it, the judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic violated the procedure of administration of law. According to Items 3 and 4 of Article 79 and Item 3 of article 84 of the Constitution of the Kyrgyz Republic the status of courts and judges of the Kyrgyz Republic is determined by the constitutional laws, 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 Supreme Arbitration Court of the Kyrgyz Republic exercises supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek. The judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic violated property rights, the right to equal legal and judicial protection and the equality of all before the law and court of "Kantsky Cement and Slate Plant" public joint stock company guaranteed by part of 1 Article 4, Item 3 of Article 15, Item 2 of Article 16, Item 2 of article 38 of the Constitution of the Kyrgyz Republic owing to what by the decision of Arbitration Court of the city of Bishkek of September 22, 1998 in the claim of "Kantsky Cement and Slate Plant" public joint stock company it is refused satisfaction.

In judicial session representatives of "Kantsky Cement and Slate Plant" public joint stock company Bezsmertny I. S. and Tananykina G. A., 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 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 Arbitration Court of the city of Bishkek the decision of February 23, 1998 satisfied claims of "Kantsky Cement and Slate Plant" public joint stock company and collected in its advantage from the settlement account of the State-owned joint stock company "Kyrgyzgazmunayzat" 647605 catfishes of the caused damage and 22952 som of the state fee.

The additional decision of February 23, 1998 the Arbitration Court of the city of Bishkek collected from the settlement account of "Kantsky Cement and Slate Plant" public joint stock company 8000 catfishes and from the settlement account of the State-owned joint stock company "Kyrgyzgazmunayzat" of 8000 som for benefit of Republican research laboratory of judicial examinations for the carried-out expertize.

This decision of Arbitration Court of the city of Bishkek is left by the resolution of appellate instance of Arbitration Court of the city of Bkshkeka of April 24, 1998 without change, and the petition for appeal - without satisfaction.

The judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic the resolution of July 3, 1998 cancelled the decision and the additional decision of February 23, 1998 and the resolution of appellate instance of April 24, 1998 of Arbitration Court of the city of Bishkek and case sent for new judicial review in arbitral vessels of the city of Bishkek in other list of judges.

The Arbitration Court of the city of Bishkek the decision of September 22, 1998 left claims of "Kantsky Cement and Slate Plant" public joint stock company to the State-owned joint stock company "Kyrgyzgazmunayzat" about collection of 647605 som of damage without satisfaction.

By Items 1 and 2 of article 79 of the Constitution of the Kyrgyz Republic it is determined 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. Therefore, the judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic is not the constitutional judicial body.

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 from three judges.

Under the specified circumstances, the Constitutional court of the Kyrgyz Republic considers that the law-enforcement practice established by the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 3, 1998 on this case is unconstitutional and contradicts Items 1 and 2 of Article 79, to Item 3 of article 84 of the Constitution of the Kyrgyz Republic.

Justice implementation by unconstitutional body - judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic violates constitutional rights of shareholders of "Kantsky Cement and Slate Plant" public joint stock company to have property, on its equal legal and judicial protection, Articles guaranteed by Item 1 4, Item 2 of Article 16 and Item 2 of article 38 of the Constitution of the Kyrgyz Republic.

According to item 4 of article 82 of the Constitution of the Kyrgyz Republic establishment of illegality of the laws and other acts the Constitutional court cancels their action in the territory of the Kyrgyz Republic, and also cancels operation of other normative and other acts based on the act recognized as unconstitutional. Therefore, based on the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 3, 1998, the decision of Arbitration Court of the city of Bishkek of September 22, 1998 about leaving without satisfaction of claims of "Kantsky Cement and Slate Plant" public joint stock company to the State-owned joint stock company "Kyrgyzgazmunayzat" about collection of 647605 som of damage, is not subject to execution.

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 Article unconstitutional and inappropriate to Items 1 and 2 79, 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 July 3, 1998 on case on the claim of "Kantsky Cement and Slate Plant" public joint stock company to the State-owned joint stock company "Kyrgyzgazmunayzat" about collection of 647605 som of the caused material damage.

Satisfy the petition of "Kantsky Cement and Slate Plant" public joint stock company.

2. Are not subject to execution:

- the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 3, 1998 about cancellation of the decision of Arbitration Court of the city of Bishkek of February 23, 1998, the additional decision of February 23, 1998, the resolution of appellate instance of Arbitration Court of the city of Bishkek of April 24, 1998 in the matter of No. B-280/2 and the direction of case on new trial in Arbitration Court of the city of Bishkek in other list of judges;

- the decision of Arbitration Court of Bishkek of September 22, 1998 about leaving without satisfaction of claims of the State joint-stock company "Kantsky Cement and Slate Plant" to the State-owned joint stock company "Kyrgyzgazmunayzat" about collection of 647605 som of damage.

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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