NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of May 17, 1999

According to the petition of the Kyrgyz-English closed joint stock company "Kamkor-Londongeyt insurance company about recognition of Article unconstitutional and inappropriate to item 4 79, to Item 3 of Article 84 and Item 2 of 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 October 2, 1998 in the claim of Maksat joint stock bank - Maksat-Yug branch about collection with Kyrgyzsko of the English closed joint stock company "Kamkor-Londongeyt insurance company of the amount of 1463436 som and expenses on the national duty in the amount of 39268 som 72 tyyyn

Constitutional court of the Kyrgyz Republic in structure: Chairman Bayekova Ch. T., vice-chairman Sutalinov A. A., Dryzhak P. N. judges, Kenensariyeva Ampere-second., Osmonova K. E., Satybekova S. S., Togoybayev Zh. Zh., Esenaliyeva K. E. and Esenkanova K. E.,

with participation of the court session secretary Alymkulov M. S., the parties: representatives of the Kyrgyz-English closed joint stock company "Kamkor-Londongeyt insurance company of Sokolov Vasily Alekseevich and Pinsk Stanislav Petrovich, the acting on the basis of the powers of attorney of November 17, 1998 signed by the president of the Kyrgyz-English closed joint stock company "Kamkor-Londongeyt insurance company, the representative of the Supreme Arbitration Court of the Kyrgyz Republic of the Medetbekovy Plane tree Askarbekovna who is acting on the basis of the power of attorney of November 9, 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 the Kyrgyz-English closed joint stock company "Kamkor-Londongeyt insurance company about recognition of Article unconstitutional and inappropriate to item 4 79, to Item 3 of Article 84 and Item 2 of 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 October 2, 1998 in the claim of Maksat joint stock bank - Maksat-Yug branch about collection from the Kyrgyz-English closed joint stock company "Kamkor-Londongeyt insurance company of the amount of 1463436 som and expenses on the national duty in the amount of 39268 som 72 tyyyn.

Having heard the report of the judge Satybekov S. S., speech of representatives of the Kyrgyz-English closed joint stock company "Kamkor-Londongeyt insurance company of Sokolov V. A. and Pinsk S.P., representative of the Supreme Arbitration Court of the Kyrgyz Republic Medetbekova Ch. A. and having researched case papers, the Constitutional court of the Kyrgyz Republic

ESTABLISHED:

In the Constitutional court of the Kyrgyz Republic on November 5, 1998 and on May 12, 1999 the petition of the Kyrgyz-English closed joint stock company "Kamkor-Londongeyt insurance company about recognition of Article unconstitutional and inappropriate to item 4 79, to Item 3 of Article 84 and Item 2 of 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 October 2, 1998 in the claim of Maksat joint stock bank - Maksat-Yug branch about collection from the Kyrgyz-English closed joint stock company "Kamkor-Londongeyt insurance company of the amount of 1463436 som and expenses on the national duty in the amount of 39268 som 72 tyyyn arrived.

The Kyrgyz-English closed joint stock company "The Kamkor-Londongeyt insurance company brings the following arguments into reasons for the petition. The Arbitration Court of the city of Bishkek, the decision of July 30, 1998, satisfied the claim of JSB Maksat - Maksat-Yug branch about collection from insurance company on insured event of the amount of 1221438 som and expenses on the national duty in the amount of 34429 som. The appellate instance of Arbitration Court of the city of Bishkek, the resolution of September 2, 1998, satisfied the claim of insurance company, changed the judgment, having collected from the Kyrgyz-English closed joint stock company "Kamkor-Londongeyt insurance company the amount of 716438 som and expenses on the national duty.

The judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic consisting of three judges, the resolution of October 2, 1998 repealed the resolution of appellate instance of Arbitration Court of the city of Bishkek of September 2, 1998, and left the decision of the same court of July 30, 1998 without change. The law-enforcement practice established by this resolution is unconstitutional and does not correspond to item 4 of Article 79, to Item 3 of Article 84, to Item 1 of Article 87 and Item 2 of article 88 of the Constitution of the Kyrgyz Republic.

Item 3 of article 84 of the Constitution of the Kyrgyz Republic provides 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, but not its judicial structure. Violation of requirements of Item 3 of article 84 of the Constitution of the Kyrgyz Republic led to violation of item 4 of article 79 of the Constitution of the Kyrgyz Republic, the binding judge to submit only to the Constitution and the law. Besides the right of defense of insurance company as in substantive provisions of the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic it is specified that the resolution takes legal effect from the moment of its acceptance is violated, is final and is not subject to appeal that contradicts Item 2 of article 88 of the Constitution of the Kyrgyz Republic that protection is not violated right of person at any stage of process of consideration of legal case.

In judicial session representatives of the Kyrgyz-English closed joint stock company "Kamkor-Londongeyt insurance company Sokolov V. A. and the Pinsk S.P., having supported the petition, ask it to satisfy.

Representative of the Supreme Arbitration Court of the Kyrgyz Republic Medetbekova Ch. A., 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.

Apparently from the provided materials, the claim of Maksat joint stock bank is satisfied with the decision of Arbitration Court of the city of Bishkek of July 30, 1998. From the settlement account of the Kyrgyz-English closed joint stock company "Kamkor-Londongeyt insurance company and Vanyusha and To limited liability companies 1221438 som for benefit of Maksat joint stock bank, the state fee in the amount of 34429 som and 25 som of postage expenses are solidary exacted.

The petition for appeal of the Kyrgyz-English closed joint stock company "The Kamkor-Londongeyt insurance company is satisfied with the resolution of appellate instance of Arbitration Court of the city of Bishkek of September 2, 1998. The decision of Arbitration Court of the city of Bishkek of July 30, 1998 in the matter of No. B-266/4 is changed. From the settlement account of the Kyrgyz-English closed joint stock company "Kamkor-Londongeyt insurance company and Vanyusha and To limited liability companies it is collected solidary for benefit of Maksat joint stock bank of 716438 som of principal debt and 24328 som of 86 tyyyn of the national duty.

Determination of July 24, 1998 in the matter of No. B-266/4 about seizure of the non-residential premise belonging Kyrgyz English to closed joint stock company "Kamkor-Londongeyt insurance company to the address is cancelled: the city of Bishkek, Ulitsa Moskovskaya - 121 and the money belonging to the defendant, being on the settlement account of closed joint stock company "Kamkor-Londongeyt insurance company in No. AGB "Bishkek" 74417200200052, code 330107741.

The judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic created by the order of the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic on September 24, 1998 as a part of the chairman Zhumashev K. O., judges - Bekisheva D. B. and Bazarkulov K. K., with the resolution of October 2, 1998 the statement of JSB Maksat - the Maksat-Yug branch about review according to the procedure of supervision of the resolution of appellate instance of Arbitration Court of the city of Bishkek in the matter of No. B-266/4 satisfied. Repealed the resolution of appellate instance of Arbitration Court of the city of Bishkek of September 2, 1998 in the matter of No. B-266/4, having left without change the decision of Arbitration Court of the city of Bishkek of July 30, 1998 in the matter of No. B-266/4, having specified that the resolution takes legal effect from the moment of its acceptance, is final and is not subject to appeal.

The constitutional court of the Kyrgyz Republic considers that the resolution of October 2, 1998 on this case is accepted judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic in defiance of requirements of Items 1, 2 and 4 Article 79 and Item 3 of article 84 of the Constitution of the Kyrgyz Republic that justice in the Kyrgyz Republic is performed only by court. 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. The judge submits only to the Constitution and the law. Supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek performs the Supreme Arbitration Court of the Kyrgyz Republic.

Judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic, not being the constitutional judicial body, having changed functions and powers of the Supreme Arbitration Court of the Kyrgyz Republic, unconstitutionally exercised the right of implementation of supervision of court decrees of Arbitration Court of the city of Bishkek. The resolution of October 2, 1998 in the claim of Maksat joint stock bank - the Maksat-Yug branch about collection from the Kyrgyz-English closed joint stock company "Kamkor-Londongeyt insurance company of the amount of 1463436 som and expenses on the national duty in the amount of 39268 som 72 tyyyn, established the unconstitutional law-enforcement practice violating the shareholder right of the Kyrgyz-English closed joint stock company "Kamkor-Londongeyt insurance company on judicial protection guaranteed by Item 2 of article 38 of the Constitution of the Kyrgyz Republic which is implemented only by the constitutional judicial body.

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

Solved:

1. Recognize unconstitutional and inappropriate to Items 1, of 2, 4 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 2, 1998 in the claim of Maksat joint stock bank - Maksat-Yug branch to Kyrgyz English closed joint stock company "Kamkor-Londongeyt insurance company about collection of the amount of 1463436 som and 39268 som 72 tyyyn of the national duty.

Satisfy the petition of the Kyrgyz-English closed joint stock company "Kamkor-Londongeyt insurance company.

2. The resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 2, 1998 about allowance of the application of JSB Maksat - Maksat-Yug branch about review according to the procedure of supervision of the resolution of appellate instance of Arbitration Court of the city of Bishkek in the matter of No. B-266/4 is not subject to execution. To cancellation of the resolution of appellate instance of Arbitration Court of the city of Bishkek of September 2, 1998 in the matter of No. B-266/4 and leaving without change of the decision of Arbitration Court of the city of Bishkek of July 30, 1998 in the matter of No. B-266/4. With indication of the introduction of the resolution in legal force from the moment of its acceptance, about its finality and not sublying to appeal.

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", "Our newspaper".

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