NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of June 22, 1998

According to the petition of Kanykey limited liability company for recognition of Article unconstitutional and inappropriate to Item 2 7, to Items 3 and 4 of Article 79, to Item 3 of Article 34 and article 90 of the Constitution of the Kyrgyz Republic of the law-enforcement practice established by the resolution of Presidium of the Supreme Arbitration Court of the Kyrgyz Republic of November 15, 1996 in the claim of the collective company "Parikmakherskaya" Sonun" to Kanykey limited liability company about collection of the amount of 22978 som

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

with participation of the court session secretary Alymkulov M. S., the parties: the director of Kanykey limited liability company Iminov Alimzhan Makhametzhanovich and 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 the May 4, 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 Kanykey limited liability company for recognition of Article unconstitutional and inappropriate to Item 2 7, to Items 3 and 4 of Article 79, to Item 3 of Article 84 and article 90 of the Constitution of the Kyrgyz Republic of law-enforcement practice, the Kyrgyz Republic established by the resolution of Presidium of the Supreme Arbitration Court of November 15, 1996 in the claim of the collective company "Parikmakherskaya" Sonun" to Kanykey limited liability company about collection of the amount of 22978 som.

Having heard the report of the judge Esenkanov K. E., speeches of the director of Kanykey limited liability company Iminov A. M., 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 on March 28 and on June 5, 1998 the petition of Kanykey limited liability company for recognition of Article unconstitutional and inappropriate to Item 2 7, to Items 3 and 4 of Article 79, to Item 3 of Article 84 and article 90 of the Constitution of the Kyrgyz Republic of the law-enforcement practice established by the resolution of Presidium of the Supreme Arbitration Court of the Kyrgyz Republic of November 15, 1996 in the claim of the collective company "Parikmakherskaya" Sonun" to Kanykey limited liability company about collection of the amount of 22978 som arrived.

The Kanykey limited liability company brings the following arguments into reasons for the petition. For benefit of the collective company "Hairdressing salon "Sonun" are collected by the decision of the Supreme Arbitration Court of the Kyrgyz Republic of November 16, 1995 from Kanykey limited liability company: principal debt in the amount of 22978 som, the national duty in the amount of 1149 som and expenses on examination in the amount of 400 som. The statement of Kanykey limited liability company on this decision of the Supreme Arbitration Court which only part of claims was recognized. The Supreme Arbitration Court of the Kyrgyz Republic considered and the resolution on review of the decision according to the procedure of supervision of January 10, 1996 changed the decision of the Supreme Arbitration Court of the Kyrgyz Republic of November 16, 1995, having reduced the collected amount to 4320 som of principal debt and having refused other part of the claim. Presidium of the Supreme Arbitration Court of the Kyrgyz Republic under the chairmanship of the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic Narymbayev D. I., as a part of judges: Alpiyeva A., Luchkov G., Temirbekov L., having considered representation of the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic, the resolution of November 15, 1996 repealed the specified resolution and left without change the decision of the Supreme Arbitration Court of the Kyrgyz Republic of November 16, 1995.

Having considered this case, the Presidium of the Supreme Arbitration Court of the Kyrgyz Republic went beyond powers, stipulated in Item 3 articles 84 of the Constitution of the Kyrgyz Republic, assigning implementation of supervision of judicial activities of Arbitration Courts of areas and Bishkek to the Supreme Arbitration Court of the Kyrgyz Republic. Besides, Item 2 of article 88 of the Constitution of the Kyrgyz Republic guaranteeing not violated right of person to protection at any stage of process of consideration of legal case is violated, the Presidium of the Supreme Arbitration Court of the Kyrgyz Republic considered case without their participation. And also the law-enforcement practice established by the Supreme Arbitration Court on the present, case contradicts article 90 of the Constitution of the Kyrgyz Republic which determined that the principles of justice are general and single for all courts and judges of the Kyrgyz Republic.

In judicial session director of Kanykey limited liability company Iminov A. M., having supported completely the petition, asks it to satisfy. Representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I., objecting to the petition, asks to refuse its satisfaction and to stop 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, for benefit of the collective company "Hairdressing salon "Sonun" from the account of operation of Kanykey limited liability company are collected by the decision of the Supreme Arbitration Court of the Kyrgyz Republic of November 16, 1995 from Kanykey limited liability company: principal debt in the amount of 22978 som, the national duty in the amount of 1149 som and expenses on examination in the amount of 400 som.

Judicial board of the Supreme Arbitration Court of the Kyrgyz Republic, having considered according to the procedure of supervision the application of Kanykey limited liability company on partial cancellation of the decision of the Supreme Arbitration Court of the Kyrgyz Republic of November 16, 1995, the resolution of January 10, 1996, changed this decision of the Supreme Arbitration Court of the Kyrgyz Republic, having collected from the account of operation of Kanykey limited liability company for benefit of the collective company "Hairdressing salon "Sonun" of 4320 som of principal debt and having refused other part of the claim.

The chairman of the Supreme Arbitration Court of the Kyrgyz Republic brought on November 15, 1996 submission to Presidium of the Supreme Arbitration Court of the Kyrgyz Republic and on the same day by the order for consideration of this case approved structure of Presidium of the Supreme Arbitration Court, including himself and three judges of the Supreme Arbitration Court of the Kyrgyz Republic, the Presidium of the Supreme Arbitration Court of the Kyrgyz Republic created by it, satisfied with the resolution of November 15, 1996 representation of the Chairman of the Supreme Arbitration Court, having repealed the resolution of board of the Supreme Arbitration Court of the Kyrgyz Republic on review of the decision according to the procedure of supervision of January 10, 1996 and Sonun" the amounts of 22978 som left without change the decision of the Supreme Arbitration Court of the Kyrgyz Republic of November 16, 1995 about collection from Kanykey limited liability company for benefit of the collective company "Parikmakherskaya". In the procedure for the party established by the law on availability of representation and time of consideration of the case by presidium of the Supreme Arbitration Court of the Kyrgyz Republic are not informed and the merits of the case are considered without their participation.

The specified circumstances give the grounds to the Constitutional court of the Kyrgyz Republic to draw conclusion that the Presidium of the Supreme Arbitration Court of the Kyrgyz Republic allowed violation of the right of Kanykey limited liability company, on protection at any stage of consideration of legal case, guaranteed by Item 2 of article 88 of the Constitution of the Kyrgyz Republic. The chairman of the Supreme Arbitration Court of the Kyrgyz Republic entered into structure of the Supreme Arbitration Court of the Kyrgyz Republic unforeseen the law body - Presidium, created its structure and presided in case of review of the decision of the Supreme Arbitration Court of the Kyrgyz Republic which took legal effect. Thereby violated Items 3 and 4 of article 79 of the Constitution of the Kyrgyz Republic according to which the organization and procedure for activity of the courts is determined by the law, and the obligation is assigned to the judge to submit only to the Constitution and the law. Besides, the Presidium of the Supreme Arbitration Court, review of own decision of the Supreme Arbitration Court which took legal effect, violated Item 3 of article 84 of the Constitution of the Kyrgyz Republic, the power which provided only to the Supreme Arbitration Court of the Kyrgyz Republic on implementation of supervision of judicial activities only of Arbitration Courts of areas and Bishkek.

Under such circumstances, the Constitutional court of the Kyrgyz Republic considers that the law-enforcement practice established by the resolution of Presidium of the Supreme Arbitration Court of the Kyrgyz Republic of November 15, 1996 on this case is unconstitutional and does not correspond to Items 3 and 4 of Article 79, to Item 3 of Article 84 and Item 2 of article 88 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, 14 Laws "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 Items 3 and 4 79, to Item 3 of Article 84 and Item 2 of article 88 of the Constitution of the Kyrgyz Republic the law-enforcement practice established by the resolution of Presidium of the Supreme Arbitration Court of the Kyrgyz Republic of November 15, 1996 in the claim of the collective company "Hairdressing salon "Sonun" to Kanykey limited liability company about collection of the amount of 22978 som.

Satisfy the petition of Kanykey limited liability company.

2. The resolution of Presidium of the Supreme Arbitration Court of the Kyrgyz Republic of November 15, 1996 about satisfaction of representation of the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic and cancellation of the resolution of board of the Highest Arbitral, vessels of the Kyrgyz Republic on check of legality and justification of the decisions which took legal effect of January 10, 1996 and leaving without change of the decision of the Supreme Arbitration Court of the Kyrgyz Republic of November 16, 1995 in the matter of No. 590/3 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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