NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of February 2, 1998

According to the petition of Ak-Kuu joint-stock company for recognition of article 84 of the Constitution of the Kyrgyz Republic of law-enforcement practice of the Supreme Arbitration Court of the Kyrgyz Republic unconstitutional and inappropriate to Item 3 established by the decision of the Supreme Arbitration Court of the Kyrgyz Republic of October 24, 1996 in the claim of JSC-Kuu to Umayra limited liability company about eviction from the non-residential premise

Constitutional court of the Kyrgyz Republic as a part of the Chairman Bayekova Ch. T., 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 Kurbanbayev Zh.,

parties: representatives of joint-stock company "JSC-Kuu predsedatelya pravleniya JSC-Kuu of Asanbekova Svetlana Sultashevna and Enikeev Igor Anatolyevich who is acting on the basis of the power of attorney of January 20, 1998, the signed chairman of the board of JSC-Kuu, representatives of the Supreme Arbitration Court Kyrgyz Respublikityurin Vladimir Ivanovich, the head of department of the analysis and generalization of court practice of the office of the Supreme Arbitration Court of the Kyrgyz Republic and the Medetbekovy Plane tree Askarbekovna, the senior consultant of this department, the acting on the basis of the powers of attorney of November 25, 1997 signed by the 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 Ak-Kuu joint-stock company for recognition of article 84 of the Constitution of the Kyrgyz Republic of law-enforcement practice of the Supreme Arbitration Court of the Kyrgyz Republic unconstitutional and inappropriate to Item 3 established by the decision of the Supreme Arbitration Court of the Kyrgyz Republic of October 24, 1996 in the claim of JSC-Kuu to OSOO "Umayra" about eviction from the non-residential premise.

Having heard the report of the judge Esenkanov K. E., speeches of representatives of JSC-Kuu Asanbekova S. S. and Enikeev I. A., representatives of the Supreme Arbitration Court of the Kyrgyz Republic of Tyurin V. I. and Medetbekova Ch. A., having researched case papers, the Constitutional court of the Kyrgyz Republic

established:

The Ak-Kuu joint-stock company with the petition for recognition of article 84 of the Constitution of the Kyrgyz Republic of law-enforcement practice of the Supreme Arbitration Court of the Kyrgyz Republic unconstitutional and inappropriate to Item 3 established by the decision of the Supreme Arbitration Court of the Kyrgyz Republic of October 24, 1996 in the claim of JSC-Kuu to OSOO "Umayra" about eviction from the non-residential premise appealed on October 22, 1997 to the Constitutional court of the Kyrgyz Republic.

In reasons for the petition JSC-Kuu refers to the fact that in the claim for eviction of OSOO "Umayra" from the trade and storage facilities belonging to JSC-Kuu, the Supreme Arbitration Court of the Kyrgyz Republic the decision of October 24, 1996 refused. According to Item 3 of article 84 of the Constitution of the Kyrgyz Republic the Supreme Arbitration Court of the Kyrgyz Republic is granted the right to exercise only supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek and he has no right to resolve economic disputes as Trial Court. Consideration as Trial Court of this case, the Supreme Arbitration Court of the Kyrgyz Republic violates the right of defense guaranteed by articles 15 and 88 of the Constitution of the Kyrgyz Republic as they were deprived of the right to appeal the decision of the Supreme Arbitration Court of the Kyrgyz Republic as the decision of the Supreme Arbitration Court of the Kyrgyz Republic takes legal effect from the moment of acceptance. Pronouncement of the unconstitutional decision, also violates the right to property guaranteed by articles 4 and 19 of the Constitution of the Kyrgyz Republic.

In judicial session representatives of JSC-Kuu Asanbekova S. S. and Enikeev I. A., having supported the petition, ask it to satisfy.

Representatives of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I. and Medetbekova Ch. A., without having agreed with the petition, ask to leave it without satisfaction, having stopped the constitutional legal proceedings.

Constitutional court of the Kyrgyz Republic, having discussed arguments of the parties and having researched case papers, considers the petition to the subsequent bases which are subject to satisfaction.

Apparently from the provided materials, the claim of JSC-Kuu to OSOO "Umayra" about eviction from the non-residential premise was accepted by the Supreme Arbitration Court of the Kyrgyz Republic as Trial Court and is refused by the decision of October 24, 1996 its satisfaction.

The resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of December 11, 1996 according to the claim of JSC-Kuu the specified judgment cancels and makes the new decision on satisfaction of claims of JSC-Kuu with collection from the account of operation of OSOO "Umayra" for benefit of JSC-Kuu of the national duty in the amount of 1105 som, with issue of writ of execution.

Chapter 23 of the Arbitral Procedure Code of the Kyrgyz Republic is acknowledged as the solution of the Constitutional court of the Kyrgyz Republic of October 14, 1997 according to the petition of Umayra limited liability company Article 79 unconstitutional and inappropriate to Item 3 and Item 3 of article 84 of the Constitution of the Kyrgyz Republic, and the specified resolution of cassation instance - not subject to execution. The question of constitutionality of the law-enforcement practice established by the Supreme Arbitration Court of the Kyrgyz Republic the decision of October 24, 1996 was not considered by the Constitutional court of the Kyrgyz Republic as OSOO "Umayra" in the petition did not declare these requirements.

Having accepted and having considered on the first instance the claim of JSC-Kuu to OSOO "Umayra" about eviction from the non-residential premise the Supreme Arbitration Court of the Kyrgyz Republic ignored the procedure of the dispute resolution, arising between business entities in the economic sphere, established by the Arbitral Procedure Code of the Kyrgyz Republic. Thereby violation of the item 4 of article 79 of the Constitution of the Kyrgyz Republic obliging courts to submit only to the Constitution and the law is allowed.

The Supreme Arbitration Court of the Kyrgyz Republic consideration of the claim of JSC-Kuu to OSOO "Umayra" about eviction from the non-residential premise and decision making of October 24, 1996 according to the procedure, unforeseen the Arbitral Procedure Code of the Kyrgyz Republic violated the constitutional right on protection of Ak-Kuu joint-stock company guaranteed by article 88 of the Constitution of the Kyrgyz Republic.

Besides, violation of requirements of Item 2 of article 7 of the Constitution of the Kyrgyz Republic giving the Supreme Arbitration Court of the Kyrgyz Republic constitutional right is allowed to represent and perform the government only within the powers established by the Constitution.

Consideration of claims for the disputes arising in the economic sphere is included into competence of Arbitration Courts of areas and the city of Bishkek. According to Item 3 of article 84 of the Constitution of the Kyrgyz Republic, the Supreme Arbitration Court of the Kyrgyz Republic is granted the right of implementation of supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek.

Under the specified circumstances the Constitutional court of the Kyrgyz Republic considers that the law-enforcement practice of the Supreme Arbitration Court of the Kyrgyz Republic established by the decision of October 24, 1996 in the claim of JSC-Kuu to OSOO "Umayra" about eviction from the non-residential premise is Article unconstitutional and inappropriate to Item 2 7, to item 4 of Article 79 and Item 3 of article 84 of the Constitution of the Kyrgyz Republic.

Based on stated and being guided by 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 14, 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 Article unconstitutional and inappropriate to Item 2 7, to item 4 of Article 79 and Item 3 of article 84 of the Constitution of the Kyrgyz Republic the law-enforcement practice of the Supreme Arbitration Court of the Kyrgyz Republic established by the decision of the Supreme Arbitration Court of the Kyrgyz Republic of October 24, 1996 in the claim of Ak-Kuu joint-stock company to Umayra limited liability company about eviction from the non-residential premise.

To satisfy the petition of Ak-Kuu joint-stock company.

2. The decision of the Supreme Arbitration Court of the Kyrgyz Republic of October 24, 1996 about refusal in the claim to Ak-Kuu joint-stock company to Umayra limited liability company about eviction from the non-residential premise is not subject to execution.

3. The final decision, is not subject to appeal. Surely to execution by all 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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