DETERMINATION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of February 13, 1998

According to the petition of the Central Asian holding company of "Cards" for recognition of Article unconstitutional and inappropriate to Item 3 79, to Item 3 of Article 84 and Item 1 of article 87 of the Constitution 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 May 15, 1996 and the resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 1, 1996 in the claim of Kyrgyzstan joint stock bank to the Central Asian holding company of "Cards" about release of the Alamedinsky trade and market complex

Constitutional court of the Kyrgyz Republic as a part of the Chairman Bayekova Ch. T., vice-chairman Sutalinov A. A., 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 clerk Dyushenaliyeva E. S.,

parties: representatives of the Central Asian holding company of "Cards", the president of this company Utirova Byubyukan Azhigulovna and Petkov Vitaly Georgiyevich who is acting on the basis of the power of attorney of January 20, 1998, the signed president of the Central Asian holding company of "Cards", representatives of the Supreme Arbitration Court of the Kyrgyz Republic of Tyurin 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 January 8, 1998 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 the Central Asian holding company of "Cards" for recognition of Article unconstitutional and inappropriate to Item 3 79, to Item 3 of Article 84 and Item 1 of article 87 of the Constitution 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 May 15, 1996 and the resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 1, 1996 in the claim of Kyrgyzstan joint stock bank to the Central Asian holding company of "Cards" about release of rooms of the Alamedinsky trade and market complex.

Having heard the report of the judge Esenkanov K. E., speeches of representatives of the Central Asian holding company of "Cards" of Utirovy B. A. and Petkov V. G., representatives of the Supreme Arbitration Court of the Kyrgyz Republic of Tyurin V. I. and Medetbekova Ch. A. and having researched case papers, the Constitutional court of the Kyrgyz Republic established:

In the Constitutional court of the Kyrgyz Republic the petition of the Central Asian holding company of "Cards" for recognition of Article unconstitutional and inappropriate to Item 3 79, to Item 3 of Article 84 and Item 1 of article 87 of the Constitution 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 May 15, 1996 and the resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 1 1996, year in the claim of Kyrgyzstan joint stock bank to the Central Asian holding company of "Cards" about release of the Alamedinsky trade and market complex arrived on November 10, 1998.

In reasons for the petition the Central Asian holding company of "Cards" refers to the fact that the Kyrgyzstan joint stock bank appealed to the Supreme Arbitration Court of the Kyrgyz Republic with the claim to the Central Asian holding company of "Cards" with the requirement about release of leased rooms of the Alamedinsky trade and market complex. The Supreme Arbitration Court of the Kyrgyz Republic, having considered the specified claim as Trial Court, satisfied with the decision of May 15, 1996 it. The cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic the resolution of July 1, 1996 left this decision without change, and the claim of the Central Asian holding company of "Cards" - without satisfaction.

Having considered case in quality of Trial Court and having reviewed the decision according to the procedure of cassation production, the Supreme Arbitration Court of the Kyrgyz Republic allowed violation of requirements of Item 3 of article 84 of the Constitution of the Kyrgyz Republic which granted to the Supreme Arbitration Court of the Kyrgyz Republic the right to exercise supervision of judicial activities only of Arbitration Courts of areas and the city of Bishkek and Item 1 of article 87 of the Constitution of the Kyrgyz Republic depriving court of the right to apply the regulations contradicting the Constitution of the Kyrgyz Republic. Thereby, the Supreme Arbitration Court of the Kyrgyz Republic, performing justice on the basis of the regulations of the Arbitral Procedure Code of the Kyrgyz Republic contradicting the Constitution of the Kyrgyz Republic violated the right of defense and property provided by Articles 4, of 15, 19 and 88 Constitutions of the Kyrgyz Republic.

In judicial session representatives of the Central Asian holding company of "Cards" of Utirov B. A. and Petkov V., having supported the petition, explained that the Central Asian holding company of "Cards" is owner of the Alamedinsky trade and market complex, based on the delivery-acceptance certificate of the December 21, 1994 which is drawn up proceeding from the lease agreement of the room of this market complex. Believe law-enforcement practice of the Supreme Arbitration Court of the Kyrgyz Republic unconstitutional, consider broken their rights to property and to its protection.

Representatives of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I. and Medetbekova Ch. A., objecting to the requirements declared in the petition put question of cessation of production according to the considered petition as representatives of the Central Asian holding company of "Cards" in judicial session specifically cannot call what constitutional rights are affected by the decision of the Supreme Arbitration Court of the Kyrgyz Republic of May 15, 1996 and the resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 1, 1996.

Constitutional court of the Kyrgyz Republic, having discussed arguments of the parties and having researched case papers, considers the constitutional legal proceedings initiated according to the petition of the Central Asian holding company of "Cards" subject to the termination on the following bases.

Apparently from the provided materials, the Kyrgyzstan joint stock bank according to the lease agreement of October 13, 1994 transferred to use for a period of one year the room of the Alamedinsky trade and market complex of holding company of "Cards". Between the same parties, the new lease agreement, for a period of 5 years, since January 1, 1995 according to which, the lessee has the right to turn the subject of the agreement into the property on the end of payment of its cost in the amount 21, of 5 million som on December 21, 1994 is constituted. Systematic breaches of agreement on the rent from the Central Asian holding company of "Cards" caused termination of the specified agreement on February 1, 1996 by Kyrgyzstan joint stock bank, unilaterally.

With respect thereto, the claim for release of leased rooms of the Alamedinsky trade and market complex by holding company of "Cards" declared by Kyrgyzstan joint stock bank is satisfied on May 15, 1996 with the decision of the Supreme Arbitration Court of the Kyrgyz Republic. The cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic the resolution of July 1, 1996 left the claim of the Central Asian holding company of "Cards" to this decision without satisfaction. During judicial session as the president of the Central Asian holding company of "Cards" Utirova OH, and her representative Petkov V. G. could not concretize what constitutional rights of the Central Asian holding company of "Cards" or her founders are directly affected by law-enforcement practice of the Supreme Arbitration Court of the Kyrgyz Republic which constitutionality are disputed by them. They claim that they were the actual owners of the Alamedinsky trade and market complex based on the delivery-acceptance certificate which is drawn up according to provisions of the lease of December 21, 1994, illegal collection of the state fee by court consider broken the property rights and protection, but could not submit any documents of title on this property to the Constitutional court of the Kyrgyz Republic. The question of collection and return of the state fee is not subordinated to the Constitutional court of the Kyrgyz Republic.

Considering that according to Item 8 of article 14 of the Law "About the Constitutional Legal Proceedings of the Kyrgyz Republic" legal entities and citizens - on the questions which are directly affecting their constitutional rights if they are not subordinated to other courts can be subjects of the address to the Constitutional court of the Kyrgyz Republic. And the decision on constitutionality of law-enforcement practice according to the subitem 8 of Item 3 of article 82 of the Constitution of the Kyrgyz Republic, the Constitutional court of the Kyrgyz Republic accepts in case of violation of constitutional rights of citizens. The Central Asian holding company of "Cards" in judicial session, except superficial statements for the violated right to property, did not produce the evidence about the violated constitutional right in this connection the Constitutional court of the Kyrgyz Republic came to conclusion about suit abatement.

Based on stated and being guided by Item 8 of part 3 of article 23 of the Law "About the Constitutional Legal Proceedings of the Kyrgyz Republic", the Constitutional court of the Kyrgyz Republic determined:

1. Stop behind not jurisdiction the constitutional legal proceedings according to the petition of the Central Asian holding company of "Cards" for recognition of Article unconstitutional and inappropriate to Item 3 79, to Item 3 of Article 84 and Item 1 of article 87 of the Constitution of the Kyrgyz Republic, 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 May 15, 1996 and the resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 1, 1996 in the claim of Kyrgyzstan joint stock bank to the Central Asian holding company of "Cards" about release of the Alamedinsky trade and market complex.

2. This determination is not subject to appeal.

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