NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of November 13, 1997

According to the petition of Kyrgyzstan joint-stock company for recognition of unconstitutional 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 March 3, 1997, resolutions of appellate instance of April 28, 1997 and cassation instance of July 16, 1997 of the Supreme Arbitration Court of the Kyrgyz Republic when considering the case on the claim of Kyrgyzelbank to "Kyrgyz-German Trading House" joint-stock company

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., Togoybayeva Zh. Zh., Esenaliyeva K. E. and Esenkanova K. E.,

with participation of the court session secretary Kasymaliyev A. N., parties: The president of Kyrgyzstan joint-stock company Filippov Valery Nikolaevich, his representatives - Zotova Nina Vasilyevna and Nurimbetova Cholpon Misirovna, the acting on the basis of the powers of attorney of September 17, 1997 signed by the President of Kyrgyzstan joint-stock company, representatives of the Supreme Arbitration Court of the Kyrgyz Republic - Tyurin Vladimir Ivanovich and the Medetbekovy Plane tree of Askarbekovna, the acting on the basis of the powers of attorney of September 29, 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, 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 the petition of Kyrgyzstan joint-stock company for recognition of unconstitutional law-enforcement practice of the Supreme Arbitration Court of the Kyrgyz Republic in proceeding in open court, the Kyrgyz Republic established by the decision of the Supreme Arbitration Court of March 3, 1997, resolutions of appellate instance of April 28, 1997 and cassation instance of July 16, 1997 the Supreme Arbitration Court of the Kyrgyz Republic when considering the case on the claim of Kyrgyzelbank to "Kyrgyz-German Trading House" joint-stock company.

Having heard the report of the judge Esenaliyev K. E., performances: The president of Kyrgyzstan joint-stock company Filippov V. N., his representatives - Zotova N. V. and Nurimbetova Ch. M., representatives of the Supreme Arbitration Court of the Kyrgyz Republic - Tyurina V. I. and Medetbekova Ch. I., having researched case papers the Constitutional court of the Kyrgyz Republic

ESTABLISHED:

The President of Kyrgyzstan joint-stock company with the petition for recognition of unconstitutional 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 March 3, 1997, resolutions of appellate instance of the Supreme Arbitration Court of April 28, 1997 and cassation instance of the Supreme Arbitration Court of July 16, 1997 when considering the case on the claim of Kyrgyzelbank to "Kyrgyz-German Trading House" joint-stock company about recognition invalid agreements on return of real estate to property of Kyrgyzstan joint-stock company appealed on September 9, 1997 to the Constitutional court of the Kyrgyz Republic.

The Kyrgyzstan joint-stock company brings the following arguments into reasons for the petition.

The Supreme Arbitration Court, having accepted to the production and having considered the above-stated dispute over being in the first instance, went beyond the powers on supervision implementation only behind judicial activities of Arbitration Courts of the areas and the city of Bishkek provided by Item 3 of article 84 of the Constitution of the Kyrgyz Republic and violated Item 2 of article 7 of the Constitution of the Kyrgyz Republic according to which the Supreme Arbitration Court represents the government only within the powers established by the Constitution of the Kyrgyz Republic.

The Supreme Arbitration Court, in defiance of Item 3 of article 79 of the Constitution of the Kyrgyz Republic, considered claims on these cases in appeal and cassation instances whereas "About Arbitration Court of the Republic Kyrgyzstan" the specified instances as a part of the Supreme Arbitration Court of the Kyrgyz Republic are not provided in the current law. Considering that the Supreme Arbitration Court of the Kyrgyz Republic broke the constitutional principles of identical application of the laws to all citizens and equalities of all before the law and court, asks to recognize unconstitutional the law-enforcement practice established by the decision of the Supreme Arbitration Court, resolutions of appeal and cassation instances of the Supreme Arbitration Court by consideration of this case as the constitutional rights affecting them affirmed by Articles 7, of 15, of 19, of 22, of 38, of 79, of 84, 87, 90 Constitutions of the Kyrgyz Republic.

In judicial session the President of Kyrgyzstan joint-stock company Filippov V. N., his representatives Zotova N. V. and Nurimbetova Ch. M. completely supported the petition and asked it to satisfy.

Representatives of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. N. and Medetbekova Ch. A., without having agreed with the petition, asked it to leave without satisfaction, and to stop the constitutional legal proceedings.

Constitutional court of the Kyrgyz Republic, having discussed arguments of the petition and having researched case papers considers that the bases for the termination of the constitutional legal proceedings are not available, and the petition of Kyrgyzstan joint-stock company is subject to satisfaction on the following bases.

Apparently from the provided materials, the Supreme Arbitration Court of the Kyrgyz Republic, accepted to the production and satisfied with the decision of March 3, 1997 the claim of Kyrgyzelbank to Kyrgyzstan joint-stock company about recognition invalid agreements between Kyrgyzstan joint-stock company and "Kyrgyz-German Trading House" joint-stock company. Claims of Kyrgyzstan joint-stock company to this decision are considered by appeal and cassation instances of the Supreme Arbitration Court of the Kyrgyz Republic and the relevant resolutions of April 28, 1997 and of July 16, 1997 claims are left without satisfaction, and the decision of the Supreme Arbitration Court - without change.

According to Item 3 of article 84 of the Constitution of the Kyrgyz Republic the Supreme Arbitration Court of the Kyrgyz Republic exercises supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek. Despite limits of these constitutional powers of the Supreme Arbitration Court of the Kyrgyz Republic limited only to implementation of supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek, the Supreme Arbitration Court of the Kyrgyz Republic accepted to the production and considered matter for the courts to Arbitration Court of the city of Bishkek, thereby having violated Item 2 of article 7 of the Constitution of the Kyrgyz Republic according to which the Supreme Arbitration Court of the Kyrgyz Republic can represent and perform the government only within the powers established by the Constitution.

The current Law "About Arbitration Court of the Republic Kyrgyzstan" and the Arbitral Procedure Code of the Kyrgyz Republic do not provide appellate instance in structure of the Supreme Arbitration Court of the Kyrgyz Republic. From case papers it is visible that the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic self-willedally entered on April 1, 1997 unforeseen appeal procedure for review in the law of the decision of the Supreme Arbitration Court which did not take legal effect and created structure of appellate instance (л.д. 98) which left on April 28, 1997 without change the decision of the Supreme Arbitration Court of the Kyrgyz Republic of March 3, 1997, and the petition for appeal of Kyrgyzstan joint-stock company - without satisfaction.

By day of consideration of this case by the specified instances of the Supreme Arbitration Court of the Kyrgyz Republic the principles of forming and the body creating cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic the law were not determined in this connection the Constitutional court of the Kyrgyz Republic considers that its functioning had no legal basis. And unauthorized forming of structure of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic in this specific case by the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic entailed violation of Item 3 of article 79 of the Constitution of the Kyrgyz Republic according to which the status of courts and judges of the Kyrgyz Republic are determined by the constitutional laws, and the organization and procedure for activity of the courts are determined by the law. Therefore, the resolutions accepted by these instances cannot be right judgment.

Under the specified circumstances the Constitutional court of the Kyrgyz Republic considers that acceptance in defiance of the procedures established by the Arbitral Procedure Code of the Kyrgyz Republic the Supreme Arbitration Court of the Kyrgyz Republic of the decision of March 3, 1997, appellate instance of the Supreme Arbitration Court of the Kyrgyz Republic of the resolution of April 28, 1997 and cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of the resolution of July 16, 1997 in the claim of Kyrgyzelbank to "Kyrgyz-German Trading House" joint-stock company about recognition invalid agreements on return of real estate to property of Kyrgyzstan joint-stock company violates constitutional right on protection of Kyrgyzstan joint-stock company, stipulated in Article 88 Constitutions of the Kyrgyz Republic, and law-enforcement practice, established by these court decrees is unconstitutional and contradicts Item 2 of Article 7, 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, 14 Laws "About the Constitutional Court of the Kyrgyz Republic", Articles 10, of 11, 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 the unconstitutional and contradicting Item 2 Article 7, to Item 3 of Article 79 and Item 3 of article 84 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 March 3, 1997, resolutions of appellate instance of the Supreme Arbitration Court of the Kyrgyz Republic of April 28, 1997 and cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 16, 1997 on case on the claim of Kyrgyzelbank to "Kyrgyz-German Trading House" joint-stock company about recognition invalid agreements on return of real estate to property of Kyrgyzstan joint-stock company.

To satisfy the petition of Kyrgyzstan joint-stock company.

2. Are not subject to execution:

the decision of the Supreme Arbitration Court of the Kyrgyz Republic of March 3, 1997 about satisfaction of the claim of Kyrgyzelbank and recognition invalid agreements between "Kyrgyz-German Trading House" joint-stock company and Kyrgyzstan joint-stock company of March 1, 1995 about return to joint-stock company "Kyrgyzstan of real estate: 1, 4th floor and socle room of the building, at the address: city of Bishkek, Ulitsa Sovetskaya 204;

the resolution of appellate instance of the Supreme Arbitration Court of the Kyrgyz Republic of April 28, 1997 about leaving without change of the decision of the Supreme Arbitration Court of the Kyrgyz Republic of March 3, 1997;

the resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 16, 1997 about leaving without change of the decision of the Supreme Arbitration Court of the Kyrgyz Republic of March 3, 1997 and the resolution of appellate instance of the Supreme Arbitration Court of the Kyrgyz Republic of April 28, 1997 in the matter of No. 14/11.

3. The final decision, is not subject to appeal and 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", in newspapers: "Tuusu's Kyrgyz", "Word of Kyrgyzstan", "Erkin-limited liability partnership" and "Our newspaper".

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