NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of June 15, 1998

According to the petition of Northern PMK joint-stock company for recognition of Article unconstitutional and inappropriate to Item 1 4, to Item 1 of Article 19 and Item 3 of article 84 of the Constitution of the Kyrgyz Republic of the law-enforcement practice established by the resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of April 15, 1997 on case on the claim of Kyrgyzproyektservice limited liability company to Northern PMK joint-stock company about reclamation of basements

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 session secretary Kasymaliyev A. N., parties: directors of Northern PMK joint-stock company - Esenaliyev Ashirbek Kochorkulovich, the representative of the Supreme Arbitration Court of the Kyrgyz Republic - 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 which is acting on the basis of the power of attorney of May 4, 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 Northern PMK joint-stock company for recognition of Article unconstitutional and inappropriate to Item 1 4, to Item 1 of Article 19 and Item 3 of article 84 of the Constitution of the Kyrgyz Republic of law-enforcement practice, the cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic established by the resolution of April 15, 1997 on case on the claim of Kyrgyzproyektservice limited liability company to Northern PMK joint-stock company about reclamation of basements.

Having heard the report of the judge Esenkanov K. E., speeches of the director of Northern PMK joint-stock company Esenaliyev A. K., 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 Northern PMK joint-stock company for recognition of Article unconstitutional and inappropriate to Item 1 4, to Item 1 of Article 19 and Item 3 of article 84 of the Constitution of the Kyrgyz Republic of the law-enforcement practice established by the resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of April 15, 1997 on case on the claim of Kyrgyzproyektservice limited liability company to Northern PMK joint-stock company about reclamation of basements arrived on March 12, 1998.

The Northern PMK joint-stock company brings the following arguments into reasons for the petition. The Kyrgyzproyektservice limited liability company appealed to Arbitration Court of Chuy Region with the claim for reclamation of the basement (socle) room, at the address: city of Bishkek, Ulitsa L. Tolstogo-Fatyanov. By the decision of Arbitration Court of Chuy Region of January 9, 1996 to Kyrgyzproyektservice limited liability company satisfaction of the claim it is refused. The Supreme Arbitration Court of the Kyrgyz Republic, in defiance of Article 122 of the Arbitral Procedure Code of the Kyrgyz Republic, accepted the writ of appeal on this decision and the resolution of cassation instance of April 15, 1997 cancelled it, having satisfied the claim of Kyrgyzproyektservice limited liability company. The Northern PMK joint-stock company considers that the resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of April 15, 1997 violates the constitutional right of shareholders of this joint-stock company on property guaranteed by articles 4 and 19 of the Constitution of the Kyrgyz Republic, besides, the cassation instance was guided by regulations of Chapter 23 of the Arbitral Procedure Code of the Kyrgyz Republic contradicting Item 3 of article 84 of the Constitution of the Kyrgyz Republic which granted the right of implementation of supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek only to the Supreme Arbitration Court of the Kyrgyz Republic, but not its cassation instance.

In judicial session director of Northern PMK joint-stock company Esenaliyev A. K. 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 of Northern PMK joint-stock company subject to satisfaction on the following bases.

Apparently from the provided materials, Arbitration Court of Chuy Region, having considered the claim of Kyrgyzproyektservice limited liability company to Northern PMK joint-stock company about reclamation of the basement (socle) room, the decision of January 9, 1996 left it without satisfaction.

The cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic, the resolution of April 15, 1997 cancelled the decision of Arbitration Court of Chuy Region of January 9, 1996 and made the new decision, having satisfied the claim of Kyrgyzproyektservice limited liability company to Northern PMK joint-stock company about reclamation of the basement (first floor) in the 48-apartment apartment house down the street of L. Tolstogo-Fatyanov, having obliged Northern PMK joint-stock company to exempt and transfer the first floor of the 48-apartment apartment house down the street of L. Tolstogo-Fatyanov to Kyrgyzproyektservice limited liability company to 20 dnevny time from the moment of adoption of the resolution, with collection from the account of operation of Northern PMK joint-stock company for benefit of Kyrgyzproyektservice limited liability company of the national duty in the amount of 211 som and issue of writ of execution.

The cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic which accepted the resolution of April 15, 1997 is created by the vice-chairman of the Supreme Arbitration Court of the Kyrgyz Republic, as a part of judges: Dzhumaliyeva K. O., Akmatova B. D. and Davletov A. A. in spite of the fact that there was no law on procedure for forming and on the body creating cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic than violation of Item 3 of article 79 of the Constitution of the Kyrgyz Republic providing that the organization and procedure for activity of the courts are determined by the law is allowed.

Consideration of the case in instances, the body creating and which procedure for forming was not determined by the law and acceptance by such degree of jurisdiction on the merits of the case of the decision depriving Northern PMK joint-stock company of the property right violates shareholder rights of Northern PMK joint-stock company on the property and equal legal protection of property guaranteed by Item 1 of Article 4 and Item 1 of article 19 of the Constitution of the Kyrgyz Republic.

Besides, Item 3 of article 84 of the Constitution of the Kyrgyz Republic, constitutional right of implementation of supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek provides to the Supreme Arbitration Court of the Kyrgyz Republic, but not its cassation instance.

Taking into account the circumstances established in judicial session, the Constitutional court of the Kyrgyz Republic considers that the law-enforcement practice established by cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic, the resolution of April 15, 1997 on case on the claim of Kyrgyzproyektservice limited liability company to Northern PMK joint-stock company about reclamation of basements is unconstitutional and contradicts Item 1 of Article 4, to Item 1 of Article 19, to Item 3 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 "About the Constitutional Legal Proceedings of the Kyrgyz Republic", the Constitutional court of the Kyrgyz Republic

DECIDED:

1. Recognize Article unconstitutional and inappropriate to Item 1 4, to Item 1 of Article 19, to Item 3 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 resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of April 15, 1997 on case on the claim of Kyrgyzproyektservice limited liability company to Northern PMK joint-stock company about reclamation of basements.

Satisfy the petition of Northern PMK joint-stock company.

2. The resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of April 15, 1997 about cancellation of the decision of Arbitration Court of Chuy Region of January 9, 1996 on case on the claim of Kyrgyzproyektservice limited liability company to Northern PMK joint-stock company about reclamation of basements, satisfaction of the claim and assignment on Northern PMK joint-stock company of obligation in 20 dnevny time is not subject to execution from the moment of adoption of the resolution to exempt and transfer the first floor of the 48-apartment apartment house down the street of L. Tolstogo-Fatyanov to Kyrgyzproyektservice limited liability company, with collection from the account of operation of Northern PMK joint-stock company for benefit of Kyrgyzproyektservice limited liability company of the national duty in the amount of 211 som with issue of writ of 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", in newspapers: "Tuusu's Kyrgyz", "Word of Kyrgyzstan", "Erkin Too" and "Our newspaper".

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