NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of January 29, 1999

According to the petition of Kyrgyzenergo joint-stock company for recognition unconstitutional and inappropriate to Item 3 of Article 15, to Item 2 of Article 16, to Item 2 of Article 19, 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 of Article 148 of the Arbitral Procedure Code of the Kyrgyz Republic and law-enforcement practice established by the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 5, 1998 on case on the claim of Kyrgyzenergo joint-stock company on recognition illegal and unliable to execution of the resolution of Severnaya customs of February 12, 1998 about collection with combined heat and power plant of Bishkek of penalty in the amount of 778404 US dollars

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..., Esenaliyeva K. E. and Esenkanova K. E.,

with participation of the court clerk Aydaraliyeva Zh. R.,

agents of the parties: joint-stock company "Kyrgyzenergo" of Vasilyev Lev Alekseevich and Beaver Raisa Yakovlevna, the acting on the basis of the powers of attorney of November 11, 1998 signed by the CEO of Kyrgyzenergo joint-stock company, Supreme Arbitration Court of the Kyrgyz Republic - Tyurin Vladimir Ivanovich who is acting on the basis of the power of attorney of December 10, 1998, the signed Chairman of the Supreme Arbitration Court of the Kyrgyz Republic; General Court of Jogorku Kenesh of the Kyrgyz Republic - to Akhmetova Nursulu Meirbekovny who is acting on the basis of the power of attorney of December 3, 1998, signed Toraga of General Court of Jogorku Kenesh 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 Kyrgyzenergo joint-stock company for recognition unconstitutional and inappropriate to Item 3 of Article 15, to Item 2 of Article 16, to Item 2 of Article 19, 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 of Article 148 of the Arbitral Procedure Code of the Kyrgyz Republic and law-enforcement practice, the supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic established by the resolution of judicial structure of October 5, 1998 on case on the claim of Kyrgyzenergo joint-stock company on recognition illegal and unliable to execution of the resolution of Severnaya customs of February 12, 1998 about collection with combined heat and power plant of Bishkek of penalty in the amount of 778404 US dollars.

Having heard the report of the judge Dryzhak P. N., speech of representatives: Kyrgyzenergo joint-stock company - Vasilyeva L. A. and Beaver River. I, the Supreme Arbitration Court of the Kyrgyz Republic - Tyurina V. I., General Court of Jogorku Kenesh of the Kyrgyz Respublikiakhmetova N. M. and having researched case papers, the Constitutional court of the Kyrgyz Republic

ESTABLISHED:

In the Constitutional court of the Kyrgyz Republic the petition of Kyrgyzenergo joint-stock company for recognition unconstitutional and inappropriate to Item 3 of Article 15, to Item 2 of Article 16, to Item 2 of Article 19, 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 of Article 148 of the Arbitral Procedure Code of the Kyrgyz Republic and law-enforcement practice established by the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 5, 1998 on case on the claim of Kyrgyzenergo joint-stock company on recognition illegal and unliable to execution of the resolution of Severnaya customs of February 12, 1998 about collection with combined heat and power plant of Bishkek of penalty in the amount of 778404 US dollars arrived on November 6, 1998.

The Kyrgyzenergo joint-stock company brings the following arguments into reasons for the petition. According to existing rules of the Customs code Kyrgyzskoy Respubliki, CHPP of the city of Bishkek declared receipt in the first half of the year 1997 of 350 thousand tons of coal. The customs since May, 1997 refused to accept documents on coal customs clearance, and on February 12, 1998 the resolution imposed on combined heat and power plant of the city of Bishkek for customs offense penalty in the amount of 778404 US dollars.

The Kyrgyzenergo joint-stock company addressed with the claim for recognition of the resolution of Severnaya customs of February 12, 1998 illegal and unliable to execution which was satisfied with the decision of Arbitration Court of the city of Bishkek of July 13, 1998. The resolution of October 5, 1998 the judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic cancelled this decision and refused the claim to Kyrgyzenergo joint-stock company. The Kyrgyzenergo joint-stock company considers that Article 148 of the Arbitral Procedure Code of the Kyrgyz Republic by which the judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic was guided contradicts Item 3 of article 84 of the Constitution of the Kyrgyz Republic providing that supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek performs the Supreme Arbitration Court of the Kyrgyz Republic. The judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic consisting of three judges determined by the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic is not the Supreme Arbitration Court of the Kyrgyz Republic and cannot review the decisions, determinations which took legal effect. Review of the decision of Arbitration Court of the city of Bishkek the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 5, 1998 violates constitutional rights of Kyrgyzenergo joint-stock company on equality of all before the law and court, the right to property and its protection, and the protection in proper judicial authority guaranteed by 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 representatives of Kyrgyzenergo joint-stock company Vasilyev L. A. and Bobrova R. Ya., having supported the petition, ask it to satisfy.

Representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I. did not agree with the petition and asks to leave it without satisfaction, and the constitutional legal proceedings - to stop.

The representative of General Court of Jogorku Kenesh of the Kyrgyz Republic Akhmetova N. M. supported the petition for recognition of unconstitutional Article 148 of the Arbitral Procedure Code of the Kyrgyz Republic.

Constitutional court of the Kyrgyz Republic, having discussed arguments of the parties and having researched case papers, considers that the petition of Kyrgyzenergo joint-stock company is 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 July 13, 1998, satisfied the claim of Kyrgyzenergo joint-stock company for recognition illegal and unliable to execution of the resolution of Severnaya customs of February 12, 1998 about collection with combined heat and power plant of Bishkek of penalty in the amount of 778404 US dollars, having recognized it illegal and unliable to execution.

The decision of Arbitration Court of the city of Bishkek of July 13, 1998 was appealed by Severnaya customs according to the procedure of supervision in the Supreme Arbitration Court of the Kyrgyz Republic.

According to the statement of defense - Severnaya customs, the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic, the order of September 1, 1998, created judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic from the chairman Kayypov M. T., Bazarkulov K. I judges. and Dzhumasheva K. O.

The specified judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic, the resolution of October 5, 1998, being guided by Article 148 of the Arbitral Procedure Code of the Kyrgyz Republic, cancelled the decision of Arbitration Court of the city of Bishkek of July 13, 1998 and refused the claim to Kyrgyzenergo joint-stock company.

In the Kyrgyz Republic, according to article 4 of the Constitution of the Kyrgyz Republic, are recognized and protected state, utility, private and other patterns of ownership and their equal legal protection is guaranteed.

Judicial protection of the property right of Kyrgyzenergo joint-stock company shall be performed by the judicial bodies provided by the Constitution of the Kyrgyz Republic.

In compliance with article 79 of the Constitution of the Kyrgyz Republic 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.

As, judicial protection of the rights guaranteed by the Constitution of the Kyrgyz Republic is assigned only to the constitutional judicial bodies which are specifically called in Item 2 of article 79 of the Constitution of the Kyrgyz Republic creation of other courts and positions of judges is not allowed, forming of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic is unconstitutional.

Article 148 of the Arbitral Procedure Code of the Kyrgyz Republic providing that review of decisions, the court orders which took legal effect is performed by judicial structures of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic does not conform not only to requirements of Article 79, but also article 84 of the Constitution of the Kyrgyz Republic granting the right of implementation of supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek, to the Supreme Arbitration Court of the Kyrgyz Republic.

Article 87 of the Constitution of the Kyrgyz Republic prohibits to court to apply the regulation contradicting the Constitution of the Kyrgyz Republic.

In case of adoption of Article 148 of the Arbitral Procedure Code of the Kyrgyz Republic violation of the principle of rule of the Constitution of the Kyrgyz Republic enshrined in article 12 of the Constitution of the Kyrgyz Republic is allowed.

Under the specified circumstances Article 148 of the Arbitral Procedure Code of the Kyrgyz Republic is to the unconstitutional and contradicting Articles 12, of 79, of 84, 87 Constitutions of the Kyrgyz Republic, and its action is subject to cancellation.

With respect thereto, the Constitutional court of the Kyrgyz Republic considers the illegal and not subject to execution resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 5, 1998 accepted as a result of administration of law on the basis of unconstitutional Article 148 of the Arbitral Procedure Code of the Kyrgyz Republic, unconstitutional judicial body.

Based on stated and being guided by subitems 1 and 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, 11,13,14,24,25,29 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 Article 12, to Article 79, to Item 3 of Article 84 and Item 1 of article 87 of the Constitution of the Kyrgyz Republic Article 148 of the Arbitral Procedure Code of the Kyrgyz Republic and law-enforcement practice established by the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 5, 1998 about cancellation of the decision of Arbitration Court of the city of Bishkek of July 13, 1998 in the matter of No. B-206/3pr and refusal in the claim to Kyrgyzenergo joint-stock company about recognition of the resolution of railway customs "Severnaya" No. 9801-06/98 of February 12, 1998 unliable to execution.

Cancel operation of article 148 of the Arbitral Procedure Code of the Kyrgyz Republic.

Satisfy the petition of Kyrgyzenergo joint-stock company.

2. Is not subject to execution:

the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 5, 1998 about cancellation of the decision of Arbitration Court of the city of Bishkek of July 13, 1998 in the matter of No. B206/3pr and refusal in the claim to Kyrgyzenergo joint-stock company about recognition of the resolution of railway customs "Severnaya" No. 9801-06/98 of February 12, 1998 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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