NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of February 5, 1998

According to the petition of Antalya small enterprise for recognition to unconstitutional and inappropriate Articles 4, 15, 79, 84 and 88 Constitutions of the Kyrgyz Republic of 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 August 14, 1996 and the resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 9, 1996 in the claim of Nour-Aman limited liability company to Antalya small enterprise about collection of the amounts: 523385 som of principal debt, 566271 som of penalty fee and 39343 som of the state fee

Constitutional court of the Kyrgyz Republic as a part of the Chairman Bayekova Ch. T., vice-chairman Sutalinov A. L., judges: Dryzhaka P. N., 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 Kasymaliyev A. N.,

parties: the director of Antalya small enterprise Makhmudov Kochali Bigelevich, his representative, Enikeev Igor Anatolyevich who is acting on the basis of the power of attorney, the signed director of Antalya small enterprise, 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 November 25, 1997, 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 Antalya small enterprise for recognition to unconstitutional and inappropriate Articles 4, of 15, of 79, 84 and 88 Constitutions of the Kyrgyz Republic of law-enforcement practice of the Supreme Arbitration Court of the Kyrgyz Republic, the Kyrgyz Republic established by the decision of the Supreme Arbitration Court of August 14, 1996 and the resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 9, 1996 in the claim of Nour-Aman limited liability company to Antalya small enterprise about collection of the amounts: 523385 som of principal debt, 566271 som of penalty fee and 39343 som of the state fee.

Having heard the report of the judge Esenaliyev K. E., speeches of the director of Antalya small enterprise Makhmudov K. B., his representative Enikeev I. A., representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I. and having researched case papers, the Constitutional court of the Kyrgyz Republic

established:

In the Constitutional court of the Kyrgyz Republic the petition of Antalya small enterprise for recognition to unconstitutional and inappropriate Articles 4, of 15, of 79, 84 and 88 Constitutions of the Kyrgyz Republic of 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 August 14, 1996 and the resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 9, 1996 in the claim of Nour-Aman limited liability company to Antalya small enterprise about collection of the amounts arrived on November 10, 1997: 523385 som of principal debt, 566271 som of penalty fee and 39343 som of the state fee.

The Antalya small enterprise brings the following arguments into reasons for the requirements. Case on the first instance is considered by the Supreme Arbitration Court of the Kyrgyz Republic without participation of the representative of Antalya small enterprise and the violations of constitutional rights of small enterprise fixed by Item 1 of Article 4, Item 3 of Article 15 and Item 2 of article 88 of the Constitution of the Kyrgyz Republic which guarantee variety of patterns of ownership, their equal legal protection, equality of all before the law and court and not violated right of person to protection at any stage of process of consideration of legal case are allowed. The Supreme Arbitration Court of the Kyrgyz Republic, having considered the above-stated dispute over the first instance and having reviewed own decision, violated requirements of Item 3 of article 84 of the Constitution of the Kyrgyz Republic providing that the Supreme Arbitration Court of the Kyrgyz Republic exercises supervision only of judicial activities of Arbitration Courts of areas and the city of Bishkek.

In judicial session director of Antalya small enterprise Makhmudov K. B., his representative Enikeev I. A., having completely supported the petition, asked it to satisfy. Representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I., without having agreed with the petition, asked to leave it without satisfaction.

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 Supreme Arbitration Court of the Kyrgyz Republic accepted to the production on the first instance and satisfied with the decision of August 14, 1996 the claim of Nour-Aman limited liability company to Antalya small enterprise about collection of the amounts: 523385 som of principal debt, 566271 som of penalty fee and 39343 som of the state fee. On this judgment from Antalya small enterprise on September 11, 1996 in the Supreme Arbitration Court of the Kyrgyz Republic the petition for appeal which is accepted by determination of October 20, 1996 to production by the judge of the Supreme Arbitration Court of the Kyrgyz Republic by Luchkovy G. A arrived.

The cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic the resolution of October 9, 1996 left the decision of August 14, 1996 without change, and the claim of Antalya small enterprise - without satisfaction.

The statement of Antalya small enterprise of October 30, 1996 about review of the decision of the Supreme Arbitration Court of the Kyrgyz Republic of August 14, 1996 on newly discovered facts is left without satisfaction with determination of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of December 10, 1996.

From case on the claim of the Nour-Aman limited liability company to Antalya small enterprise about collection of the amount of 1467170 som requested from the Supreme Arbitration Court of the Kyrgyz Republic it is visible that the defendant, Antalya small enterprise, on August 14, 1996 of the claim declared to it is in accordance with the established procedure not informed on consideration of the Kyrgyz Republic by the Supreme Arbitration Court.

By the judge in the made decision it is specified that the defendant did not provide response and the materials requested by Arbitration Court important for the dispute resolution.

The absence reason of the representative of Antalya small enterprise in day of consideration of the claim cannot be established, in type of lack of the protocol of judicial session. In this connection, the Constitutional court of the Kyrgyz Republic considers reasonable arguments of the petition of Antalya small enterprise that its constitutional rights guaranteed by Item 3 of Article 15 and Item 2 of article 88 of the Constitution of the Kyrgyz Republic on equality of all before the law and court and not violated right of person to protection at any stage of consideration of legal case are violated.

Acceptance to the production on the first instance of the claim, its consideration in essence and review of own decision in defiance of the procedure provided by the Arbitral Procedure Code of the Kyrgyz Republic, the Supreme Arbitration Court of the Kyrgyz Republic allowed violation not only rights of defense of Antalya small enterprise, but also the requirement 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.

According to Item 2 of article 7 of the Constitution of the Kyrgyz Republic the Supreme Arbitration Court of the Kyrgyz Republic represents and performs the government in the Kyrgyz Republic within the powers established by the Constitution. Item 3 of article 84 of the Constitution of the Kyrgyz Republic the Supreme Arbitration Court of the Kyrgyz Republic is authorized to exercise supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek. Carried permission on the first instance of the disputes arising in the economic sphere between business entities Article 20 of the Arbitral Procedure Code of the Kyrgyz Republic to competence of Arbitration Courts of areas and the cities of Bishkek.

Under the specified circumstances the Constitutional court of the Kyrgyz Republic considers that the law-enforcement practice established by the decision of the Supreme Arbitration Court of the Kyrgyz Republic of August 4, 1996 and the resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 9, 1996 in the claim of Nour-Aman limited liability company to Antalya small enterprise about collection of the amount of 1460170 som 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 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 "0 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 August 14, 1996 and the resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 9, 1996 in the claim of Nour-Aman limited liability company to Antalya small enterprise about collection of the amounts: 523385 som of principal debt, 566271 som of penalty fee and 39343 som of the state fee.

Satisfy the petition of Antalya small enterprise.

2. Are not subject to execution:

The decision of the Supreme Arbitration Court of the Kyrgyz Republic of August 14, 1996 about collection from the account of operation of Antalya small enterprise for benefit of Nour-Aman limited liability company of 523385 som of principal debt, 566271 som of penalty fee, 39343 som of the state fee, 2 som of 30 tyyyn of postage expenses, with issue of writ of execution.

The resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 9, 1996 about leaving without change of the decision of August 14, 1996 in the matter of No. 329/4, and жалобыбез satisfactions.

Determination of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of December 10, 1996 about leaving without allowance of the application of Antalya small enterprise about review of the decision of the Supreme Arbitration Court of August 14, 1996 in the matter of No. 329/4 on newly discovered facts.

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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