NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of November 13, 1998

According to the petition of Kyrgyzstan joint stock bank for recognition of Article unconstitutional and inappropriate to the Items 1,4 4, to item 4 of Article 15, to Article 16, to Item 2 of Article 19, to the Items 3,4 of Article 79 and Item 3 of article 84 of the Constitution of the Kyrgyz Republic the law-enforcement practice established by determination of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of May 19, 1998 on case on the claim of Kyrgyzstan joint stock bank to the Central Asian holding company of "Cards" about release of the Alamudunsky trade and market complex

Constitutional court of the Kyrgyz Republic in structure: Chairman Bayekova Ch. T., vice-chairman Sutalinov A. A., P.N., Kenensariyev A. S. sudeydryzhaka., Osmonova K. E., Satybekova S. S., Esenaliyev K. E. and Esenkanova K. E.,

with participation of the court clerk Dyushenaliyeva E. S.,

parties: representatives of Kyrgyzstan joint stock bank - Glazunov Yury Fedorovich, Dvornitsyn Valery Stepanovich and Averyanov Nikolay Ivanovich, the acting on the basis of the powers of attorney of June 22, 1998 signed by the Chairman of the board of Kyrgyzstan joint stock bank and 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 June 16, 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 Kyrgyzstan joint stock bank for recognition of Article unconstitutional and inappropriate to the Items 1,4 4, to item 4 of Article 15, to Article 16, to Item 2 of Article 19, to the Items 3,4 of Article 79 and Item 3 of article 84 of the Constitution of the Kyrgyz Republic the law-enforcement practice established by determination of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of May 19, 1998 on case on the claim of Kyrgyzstan joint stock bank to the Central Asian holding company of "Cards" about release of the Alamudunsky trade and market complex.

Having heard the report of the judge of the Constitutional court of the Kyrgyz Republic Esenkanov K. E., speeches of representatives: Kyrgyzstan joint stock bank - Glazunova Yu. F., Dvornitsyna V. S., Averyanova N. I., Supreme Arbitration Court Kyrgyz Respublikityurina V. I. and having researched case papers, the Constitutional court of the Kyrgyz Republic

ESTABLISHED:

In the Constitutional court of the Kyrgyz Republic on June 5 and on November 6, 1998 the petition of Kyrgyzstan joint stock bank for recognition of Article unconstitutional and inappropriate to the Items 1,4 4, to item 4 of Article 15, to Article 16, to Item 2 of Article 19, to the Items 3,4 of Article 79 and Item 3 of article 84 of the Constitution of the Kyrgyz Republic the law-enforcement practice established by determination of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of May 19, 1998 on case on the claim of Kyrgyzstan joint stock bank to the Central Asian holding company of "Cards" about release of the Alamudunsky trade and market complex arrived.

The Kyrgyzstan joint stock bank brings the following arguments into reasons for the petition. Judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic, determination of May 19, 1998, having considered the application of the Central Asian holding company of "Cards" for review on newly discovered facts of case on the claim of Kyrgyzstan joint stock bank to the Central Asian holding company of "Cards" about release of the Alamudunsky trade and market complex, satisfied it completely, having recovered the term passed without valid excuse for filing of application of "Cards" by the Central Asian holding company about reconsideration of the case on newly discovered facts, having cancelled 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 matter of No. 17/2pr and having sent case for consideration of Arbitration Court of the city of Bishkek. Considers that determination of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of May 19, 1998 on case on the claim for release of the Alamudunsky trade and market complex does not correspond to the Constitution of the Kyrgyz Republic as, according to Items 3, 4 Articles 79 and to Item 3 of article 84 of the Constitution of the Kyrgyz Republic the organization and procedure for activity of the courts are determined by the law, the judge submits only to the Constitution and the law, the Supreme Arbitration Court of the Kyrgyz Republic exercises supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek, but does not cancel own court resolutions. 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 on case on the claim of Kyrgyzstan joint stock bank to the Central Asian holding company of "Cards" about agreement cancelation of lease of December 21, 1994 and about release illegally of the occupied rooms of the Alamudunsky trade and market complex were accepted according to the legislation of the Kyrgyz Republic existing at that time and had no right to cancel their supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic on newly discovered facts.

The application for reconsideration of the case on newly discovered facts was submitted with the omission without valid excuse of monthly term, stipulated in Clause 165 Arbitral Procedure Codes of the Kyrgyz Republic what held back judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic in the determination of May 19, 1998. The specified circumstances violate constitutional rights on protection and on property of shareholders of Kyrgyzstan joint stock bank, stipulated in Item 4 Articles 4, by Articles 15 and 16, Item 2 of article 19 of the Constitution of the Kyrgyz Republic.

In judicial session representatives of Kyrgyzstan joint stock bank Glazunov Yu. F., Dvornitsyn V. S. and Averyanov N. I., having supported the petition, asked it to satisfy.

Representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I., without having agreed with petition arguments, asked 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 subject to satisfaction on the following bases.

Apparently from the provided materials, the claim of Kyrgyzstan joint stock bank to the Central Asian holding company of "Cards" about agreement cancelation of lease and release of rooms of the Alamudunsky trade and market complex was satisfied with the decision of the Supreme Arbitration Court of the Kyrgyz Republic of May 15, 1996. Cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic, having considered the writ of appeal of the Central Asian holding company of "Cards", left the decision of the Supreme Arbitration Court of the Kyrgyz Republic the resolution of July 1, 1996 without change, and the writ of appeal - without satisfaction.

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 the law-enforcement practice 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 on case on the claim of Kyrgyzstan joint stock bank to the Central Asian holding company of "Cards" about release of the Alamudunsky trade and market complex. The constitutional court of the Kyrgyz Republic determination of February 13, 1998 stopped the constitutional legal proceedings behind not jurisdiction, in connection with non-presentation of "Cards" of proofs of violation of its constitutional rights by the Central Asian holding company.

After that, on March 12, 1998 the Central Asian holding company of "Cards" appealed to the Supreme Arbitration Court of the Kyrgyz Republic with the statement for review of this case on newly discovered facts, and the supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic determination of April 13, 1998 returned it to the applicant in connection with the expiration of filing of application about reconsideration of the case on newly discovered facts.

Again Central Asian holding company of "Cards" in the Supreme Arbitration Court of the Kyrgyz Republic filed on April 20, 1998 petition for recovery of the passed term and reconsideration of the case on newly discovered facts. Judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic under the chairmanship of Maksimbekova D. I., with participation of judges - Kovalenko G. G. and Bazarkulov K. K., determination of May 19, 1998, having recovered submission due date of the statement for reconsideration of the case on newly discovered facts, granted the application of the Central Asian holding company of "Cards" for reconsideration of the case on newly discovered facts, cancelled 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 on this case and sent it for consideration in Arbitration Court of the city of Bishkek.

By case papers it is determined that the decision of the Supreme Arbitration Court of the Kyrgyz Republic of May 15, 1996 on dispute between Kyrgyzstan joint stock bank and the Central Asian holding company of "Cards" about release of the Alamudunsky trade and market complex is accepted the judge of the Supreme Arbitration Court of the Kyrgyz Republic G. Luchkov, the resolution of July 1, 1996 on leaving of this decision without change, and the writ of appeal of the Central Asian holding company of "Cards" - without satisfaction it is accepted cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic, as a part of judges L. Temirbekov and Z. Zhumagaziyev, under the chairmanship of G. Kovalenko. According to part 1 of Article 166 of the Arbitral Procedure Code of the Kyrgyz Republic, the decision which took legal effect, the determination accepted in the first instance are reviewed by the Arbitration Court which made these decisions, determinations. Part 2 of this Article provides that review on newly discovered fact of resolutions of appeal, supervising instances which change court resolution or is adopted new court resolution, is made in that instance of Arbitration Court in which the court resolution is changed or the new court resolution is adopted.

The constitutional court of the Kyrgyz Republic considers that as the decision of the Supreme Arbitration Court of the Kyrgyz Republic of May 15, 1996 under the chairmanship of Luchkov G., was left by cassation instance without change, the supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic which was earlier not considering case, having adopted to the production the statement of the Central Asian holding company of "Cards" for reconsideration of the case on newly discovered facts violated requirements of Article 166 of the Arbitral Procedure Code of the Kyrgyz Republic and the determination of May 19, 1998 established the law-enforcement practice contradicting 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 conclusion of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic which regarded as circumstance the modification which opened again on case by the Law of February 17, 1996 in the Constitution of the Kyrgyz Republic of May 5, 1993 is unconstitutional as these changes had no relation to article 84 of the Constitution of the Kyrgyz Republic which determined the place of the Supreme Arbitration Court of the Kyrgyz Republic in system of judicial bodies and limits of its powers.

According to article 84 of the Constitution of the Kyrgyz Republic, the Supreme Arbitration Court of the Kyrgyz Republic exercises supervision not over own decisions, and behind judicial activities of Arbitration Courts of areas and the city of Bishkek and the right of implementation of such supervision belongs to the Supreme Arbitration Court of the Kyrgyz Republic, but not any part of the judges who are its part.

The unconstitutional law-enforcement practice established by determination of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of May 19, 1998 directly violates the Constitutions of the Kyrgyz Republic guaranteed by Article 19, constitutional rights on property of shareholders of Kyrgyzstan joint stock bank, being the owner of the Alamudunsky trade and market complex concerning which the dispute in the Supreme Arbitration Court of the Kyrgyz Republic on this case was resolved.

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,

DECIDED:

1. Recognize to unconstitutional and inappropriate Article 19, to item 4 of Article 79 and article 84 of the Constitution of the Kyrgyz Republic the law-enforcement practice established by determination of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of May 19, 1998 about review on newly discovered facts of 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 on case on the claim of Kyrgyzstan joint stock bank to the Central Asian holding company of "Cards" about release of the Alamudunsky trade and market complex.

Satisfy the petition of Kyrgyzstan joint stock bank.

2. Determination of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of May 19, 1998 about recovery of submission due date of the statement of SHK of "Cards" for review of the decision and the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of May 15, 1996 and on July 1, 1996 respectively in the matter of No. 17/2pr on newly discovered facts, allowance of the application of SHK of "Cards" about review on newly discovered facts of the decision of the Supreme Arbitration Court of the Kyrgyz Republic of the May 15, 1996 accepted by it on the first instance in the matter of No. 17/2pr and the resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 1, 1996 in the matter of No. 17/2pr about cancellation of these court decrees and the direction of case No. 17/2pr for consideration in Arbitration Court of the city of Bishkek is 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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