NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of December 10, 1997

According to the petition of the Integrated peasant economy "May" Alamudunsky district about recognition of Article 79 unconstitutional and inappropriate to Item 3 and Item 3 of article 84 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 July 29, 1996 in the claim of OKH "May" to the State property fund of the Kyrgyz Republic about the property right to shop No. 10

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 Kazakbayev B., the parties: the chairman of OKH "May" of Alamudunsky district Dasumashev Sharshenbek Kadyrovich and the representatives of the Supreme Arbitration Court of the Kyrgyz Republic of Tyurin Vladimir Ivanovich and Medetbekovy Plane tree of Askarbekovna, the acting on the basis of the powers of attorney of November 25, 1997 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, Articles 13, 14 Laws "About the Constitutional Court of the Kyrgyz Republic" and article 11 of the Law "About the Constitutional Legal Proceedings of the Kyrgyz Republic", considered the petition of OKH "May" for recognition of Article 79 unconstitutional and inappropriate to Item 3 and Item 3 of article 84 of the Constitution of the Kyrgyz Republic of law-enforcement practice in proceeding in open court, the Kyrgyz Republic established by the resolution of Presidium of the Supreme Arbitration Court of July 29, 1996 in the claim of OKH "May" to the State property fund of the Kyrgyz Republic about the property right to N10 shop.

Having heard the report of the judge Esenkanov K. E., speeches of the chairman of OKH "May" Dzhumashev Sh. K., representatives of the Supreme Arbitration Court of the Kyrgyz Republic of Tyurin V. I. and Medetbekova Ch. A., having researched case papers, the Constitutional court of the Kyrgyz Republic,

ESTABLISHED:

In the Constitutional court of the Kyrgyz Republic the petition of OKH "May" for recognition of Article 79 unconstitutional and inappropriate to Item 3 and Item 3 of article 84 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 July 29, 1996 in the claim of OKH "May" to the State property fund of the Kyrgyz Republic about the property right to N10 shop arrived on October 15, 1997.

Brings the following arguments into reasons for the petition of OKH "May".

In 1992, the Maysky sovkhoz, according to the legislation, was transformed by general meeting of labor collective to Consolidation of peasant economy "May". The charter of OKH "May" was approved and registered by the resolution of the state administration of Alamudunsky district for No. 173 of March 15, 1993. The state property fund of the Kyrgyz Republic, having withdrawn from the Chuya regional State property fund the application for the redemption of property of OKH "May", without the consent of labor collective, the resolution No. 351 of July 21, 1993 transformed OKH "May" to Maysky joint-stock company, at the same time, having excluded from structure of property of OKH "May" the cost of the shop No. which is earlier transferred to its fixed assets 10, located in the Osh market. 9353 of July 21, 1993 the shop No. 10 was sold by the resolution of the State property fund to OSOO "Seytek" in this connection OKH "May" appealed to the Supreme Arbitration Court of the Kyrgyz Republic with the claim for recognition invalid the specified resolutions of the State property fund of the Kyrgyz Republic. The claim of OKH "May" was satisfied with the decision of the Supreme Arbitration Court of the Kyrgyz Republic of April 11, 1995. The specified decision was left by the resolution of judicial board of the Supreme Arbitration Court of the Kyrgyz Republic on review of the decision according to the procedure of supervision of June 23, 1995 without change, and the cassation statement of the State property fund of the Kyrgyz Republic - without satisfaction.

The presidium of the Supreme Arbitration Court of the Kyrgyz Republic, after year, the resolution of July 29, 1996 cancelled the specified court decrees and refused satisfaction of claims of OKH "May". In Presidium of the Supreme Arbitration Court of the Kyrgyz Republic of OKH "May" did not know about this consideration of the case as it was not informed, than its rights to property and protection, stipulated in Article 19 and Item 2 of article 88 of the Constitution of the Kyrgyz Republic were violated. The presidium of the Supreme Arbitration Court of the Kyrgyz Republic is unconstitutional body as, "About Arbitration Court of the Republic Kyrgyzstan" the similar body is not provided by the current law. In this case Item 3 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 is violated.

In judicial session chairman of OKH "May" Dzhumashev Sh. K., having completely supported the petition, asks it to satisfy. Representatives of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I. and Medetbekova Ch. A., objecting to the petition, ask 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, as the decision of the Supreme Arbitration Court of the Kyrgyz Republic of April 11, 1995, the owner of shop No. 10, located in the Osh market OKH "May" is recognized, are recognized as invalid: the resolution of the State property fund of the Kyrgyz Republic No. 351 of July 21, 1993 "About transformation of Maysky sovkhoz to joint-stock company", the resolution No. 353 of July 21, 1993 "About transformation of shop No. 10 to limited liability company" and the agreement No. 64 of February 23, 1994 on purchase and sale of shop No. 10.

Judicial board of the Supreme Arbitration Court of the Kyrgyz Republic, having considered the application of the State property fund of the Kyrgyz Republic for review of the decision according to the procedure of supervision, the resolution of June 23, 1995, left the specified decision of the Supreme Arbitration Court of the Kyrgyz Republic without change, and the cassation statement of the State property fund of the Kyrgyz Republic - without satisfaction.

Later over a year, on July 26, 1996, the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic, on own initiative, without any appeal of the parties, being guided by Article 166 of the Arbitral Procedure Code of the Kyrgyz Republic, brought submission to Presidium of the Supreme Arbitration Court of the Kyrgyz Republic about cancellation of the specified court decrees and on the same day the order, for consideration of this case, approved structure of Presidium of the Supreme Arbitration Court of the Kyrgyz Republic, including himself and three judges of the Supreme Arbitration Court.

The Presidium of the Supreme Arbitration Court of the Kyrgyz Republic created thus, three days later, the resolution of July 29, 1996, satisfied representation of the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic, having cancelled the decision of the Supreme Arbitration Court of the Kyrgyz Republic of April 11, 1995 and the resolution of judicial board of the Supreme Arbitration Court of the Kyrgyz Republic of June 23, 1995 on this case, refused satisfaction of claims of Maysky kolkhoz. The presidium, at the same time in the procedure established by the law did not inform the parties on availability of representation and time of consideration of the case, i.e. solved dispute on property without participation of the parties and identification of will of the owner concerning the property.

The specified circumstances give the grounds to the Constitutional court of the Kyrgyz Republic to draw conclusion on availability of violation of the rights to property and protection at any stage of consideration of legal case of OKH "May", stipulated in Item 2 Articles 19 and Item 2 of article 88 of the Constitution of the Kyrgyz Republic. In defiance 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, the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic entered unforeseen the law in structure of the Supreme Arbitration Court of the Kyrgyz Republic - 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. Besides, the Presidium of the Supreme Arbitration Court, review of the decision of the Supreme Arbitration Court which took legal effect violated Item 3 of article 84 of the Constitution of the Kyrgyz Republic, the supervision of judicial activities of Arbitration Courts of areas and Bishkek which conferred to the Supreme Arbitration Court of the Kyrgyz Republic powers on implementation.

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 July 29, 1996 on this case is unconstitutional and does not correspond 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, 14 Laws "About the Constitutional Court of the Kyrgyz Republic", Articles 10, of 11, 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 79 unconstitutional and inappropriate to item 4 and Item 3 of article 84 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 July 29, 1996 about cancellation of the decision of the Supreme Arbitration Court of the Kyrgyz Republic of April 11, 1995 and the resolution of judicial board of the Supreme Arbitration Court of the Kyrgyz Republic of June 23, 1995 in the claim of Maysky kolkhoz to the State property fund of the Kyrgyz Republic about recognition invalid: resolutions of the State property fund No. 351 of July 21, 1993 "About transformation of Maysky sovkhoz to joint-stock company", resolutions No. 353 of July 21, 1993 "About transformation of shop No. 10 (No. 15) in limited liability company" and agreements No. 64 of February 23, 1994 on purchase and sale of shop No. 10 (No. 15)".

Satisfy the petition of the Integrated peasant economy "May".

2. The resolution of Presidium of the Supreme Arbitration Court of the Kyrgyz Republic of July 29, 1996 about cancellation of the decision of the Supreme Arbitration Court of the Kyrgyz Republic of April 11, 1995 and the resolution of judicial board of the Supreme Arbitration Court of the Kyrgyz Republic of June 23, 1995 in the claim of Maysky kolkhoz to the State property fund of the Kyrgyz Republic about recognition by invalid is not subject to execution: resolutions of the State property fund for No. 351 of July 21, 1993 "About transformation of Maysky sovkhoz to joint-stock company", resolutions No. 353 of July 21, 1993 "About transformation of shop No. 10 (No. 15) in limited liability company" and agreements No. 64 of February 23, 1994 on purchase and sale of shop No. 10 (No. 15).

3. The final decision, is not subject to appeal, it is obligatory 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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