NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

October 14, 1997

According to petitions of Opereyting Company Umayra and Kumtor Limited liability company 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 Chapter 23 "Production in cassation instance" of the Arbitral Procedure Code of the Kyrgyz Republic

Constitutional court of the Kyrgyz Republic in structure: Chairman Bayekova Ch. T., vice-chairman Sutalinov A. A., Dryzhak P. N. judges, Kenensariyeva Ampere-second., Osmonova K. E., Togoybayeva Zh. Zh., Esenaliyeva K. E. and Esenkanova K. E.,

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

parties: the director of OSOO "Umayra" Kadyraliyeva Dinara Madanbekovna and her lawyer Skripkina Galina Anatolyevna acting according to the order of the order No. 998 of October 10, 1997, issued by October district legal advice bureau of Bishkek

the representative Kumtor of Opereyting Company of Aldashev Niyazbek Bolotovich who is acting on the basis of the power of attorney of September 22, 1997, the signed President Kumtor of Opereyting Company, the representatives of the Supreme Arbitration Court of the Kyrgyz Republic of 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, the representative of General Court of Jogorku Kenesh of the Kyrgyz Republic Chebotova Natalya Viktorovna who is acting on the basis of the powers of attorney No. 221 and No. 222 of September 29, 1997, signed Toraga of General Court of Jogorku Kenesh 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 of the petition of Opereyting Company Umayra and Kumtor Limited liability company 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 Chapter 23 "Production in cassation instance" of the Arbitral Procedure Code of the Kyrgyz Republic.

Having heard the report of the judge Esenkanov K. E., speeches of the director of OSOO "Umayra" Kadyraliyeva D. M. and her lawyer Skripkina G. A., representative Kumtor Opereyting Company of Aldashev N. B., representatives of the Supreme Arbitration Court of the Kyrgyz Republic of Tyurin V. I. and Medetbekova Ch. A., the representative of General Court of Jogorku Kenesh of the Kyrgyz Republic Chebotova N. V., having studied case papers, the Constitutional court of the Kyrgyz Republic

ESTABLISHED:

In the Constitutional court of the Kyrgyz Republic the petition of OSOO "Umayra" for recognition of article 84 of the Constitution of the Kyrgyz Republic of Chapter 23 "Production in cassation instance" unconstitutional and inappropriate to Item 3 of the Arbitral Procedure Code of the Kyrgyz Republic and the resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of December 11, 1996 in the claim of JSC-Kuu to OSOO "Umayra" on July 29, 1997 arrived. In reasons for the petition of OSOO "Umayra" refers to what was refused to Ak-Kuu Joint-stock company by the decision of the Supreme Arbitration Court of the Kyrgyz Republic of October 24, 1996 the claim for eviction from the non-residential premise, at the address: Bishkek, Prospekt Molodaya Gvardiya - 41. The specified decision was cancelled by the resolution of cassation board of the Supreme Arbitration Court of the Kyrgyz Republic of December 11, 1996 and the claim of JSC-Kuu was satisfied. The Supreme Arbitration Court of the Kyrgyz Republic accepted this case to production in cassation instance, without having considered it in appellate instance and resolved issue of legality of own decision made on the first instance in defiance of Articles 122 and 146 of the Arbitral Procedure Code of the Kyrgyz Republic, Item 3 of article 84 of the Constitution of the Kyrgyz Republic according to which the Supreme Arbitration Court of the Kyrgyz Republic is granted the right of implementation only of supervising functions behind judicial activities of Arbitration Courts of areas and the city of Bishkek, and she has no right to consider cases in cassation procedure.

On September 9, 1997 the petition Kumtor of Opereyting Company about recognition unconstitutional procedure for forming and activities of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic arrived. During preparation of case for judicial session, on September 22, 1997 the petition is added with the requirement about recognition of article 84 of the Constitution of the Kyrgyz Republic of Chapter 23 "Production in cassation instance" unconstitutional and inappropriate to Item 3 of the Arbitral Procedure Code of the Kyrgyz Republic and about cancellation of the resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 17, 1997 in the claim of JSC ASOM to Kumtor Opereyting Company. Kumtor Opereyting Company motivates the requirement with the fact that the Arbitration Court of the city of Bishkek the decision of May 28, 1997 refused satisfaction of the claim to the "EXPERT" Joint-stock company to Kumtor of Opereyting Company about collection of the amount of 2170255 som. The Supreme Arbitration Court of the Kyrgyz Republic, exceeding the authority, and violating Item 3 of article 79 of the Constitution of the Kyrgyz Republic and the current law "About Arbitration Court of the Republic Kyrgyzstan" according to the claim of JSC ASOM, considered this case in cassation procedure and the resolution of July 17, 1997 partially cancelled the decision of Arbitration Court of the city of Bishkek and collected about Kumtor Opereyting Company for benefit of JSC ASOM the amount of 1860955 som and the national duty in the amount 70828, of the 5th som, that violated Item 3 of article 84 of the Constitution of the Kyrgyz Republic where it is specified that the Supreme Arbitration Court of the Kyrgyz Republic exercises supervision only concerning Arbitration Courts of areas and the city of Bishkek.

During preparation of cases for judicial session according to Item 7 of part 5 of article 22 of the Law "About the Constitutional Legal Proceedings of the Kyrgyz Republic" the specified petitions are united in one legal proceedings as their requirements are connected among themselves.

In judicial session director of OSOO "Umayra" Kadyraliyeva D. M. and her lawyer Skripkina G. A., the representative Kumtor by Opereyting Company Aldashev N. B., the representative of General Court of Jogorku Kenesh of the Kyrgyz Republic Chebotova N. V., having completely supported petitions, ask to meet their requirements as constitutional rights are violated: on protection and on property of the legal entities who appealed to the Constitutional court of the Kyrgyz Republic.

Representatives of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I. and Medetbekova Ch. A., objecting to the requirements declared in petitions ask the constitutional legal proceedings to stop behind not jurisdiction them to the Constitutional court of the Kyrgyz Republic.

Constitutional court of the Kyrgyz Republic, having discussed arguments of the parties and having researched case papers, considers that petitions are subject to satisfaction on the following bases.

Apparently from the provided materials, by the decision of the Supreme Arbitration Court of the Kyrgyz Republic of October 24, 1996 the claim to Ak-Kuu Joint-stock company to Umayra Limited liability company about eviction from the non-residential premise it is refused.

The resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of December 11, 1996 according to the claim of JSC-Kuu the specified judgment cancels and makes the new decision on satisfaction of claims of JSC-Kuu with collection from the account of operation of OSOO "Umayra" for benefit of JSC-Kuu of the national duty in the amount of 1105 som with issue of writ of execution.

In this case review of the Kyrgyz Republic by the Supreme Arbitration Court of own decision made on the first instance takes place than violation of requirements of Item 3 of article 84 of the Constitution of the Kyrgyz Republic which granted to the Supreme Arbitration Court of the Kyrgyz Republic the right to exercise supervision only of judicial activities of Arbitration Courts of areas and the city of Bishkek, but not behind the decisions made by him on the first instance is allowed. Except the Supreme Arbitration Court of the Kyrgyz Republic no other instance can perform the specified constitutional powers.

Ignoring this regulation of the Constitution, Chapter 23 "Production in cassation instance" of the Arbitral Procedure Code of the Kyrgyz Republic provided to cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic, the right of implementation of supervision of decisions of Arbitration Courts of areas and the city of Bishkek, than nullified role of the Supreme Arbitration Court of the Kyrgyz Republic in implementation of supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek.

The resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 17, 1997 the decision of Arbitration Court of the city of Bishkek of May 28, 1997 on refusal in the claim of JSC ASOM to Kumtor by Opereyting Company about collection of the amount of 2170255 som cancels partially and makes the new decision on collection of the amount from the account of operation Kumtor by Opereyting Company for benefit of JSC ASOM of the amount of 1860955 som of principal debt and the national duty in the amount 70828, of the 5th som, with issue of writ of execution.

In this case review by cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of the decision of Arbitration Court of the city of Bishkek, with the same violation of Item 3 of article 84 of the Constitution of the Kyrgyz Republic takes place.

The specified decisions are made by cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic which structure on each case was created individually: in the claim of JSC-Kuu to OSOO "Umayra" about eviction - the chairman of the Supreme Arbitration Court of the Kyrgyz Republic, and in the claim of JSC ASOM to Kumtor Opereyting Company about collection of the amount of 2170255 som - the vice-chairman of the Supreme Arbitration Court of the Kyrgyz Republic.

Today the principles of forming and the body creating cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic the law are not determined in this connection the Constitutional court of the Kyrgyz Republic considers that its functioning has no legal basis. And unauthorized forming of structure of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic in each case attracts with management of the Supreme Arbitration Court of the Kyrgyz Republic 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.

The constitutional court of the Kyrgyz Republic considers that the procedure of production of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic determined by Chapter 23 of the Arbitral Procedure Code of the Kyrgyz Republic contradicts Item 3 of article 84 of the Constitution of the Kyrgyz Republic which authorizes on implementation of supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek, only the Supreme Arbitration Court of the Kyrgyz Republic and these powers are not conferred to any other body or degree of jurisdiction by the Constitution of the Kyrgyz Republic. Justice implementation by the Supreme Arbitration Court of the Kyrgyz Republic, being guided by Chapter 23 of the Arbitral Procedure Code of the Kyrgyz Republic violates Item 1 of article 87 of the Constitution of the Kyrgyz Republic depriving court of the right to apply the regulation contradicting the Constitution of the Kyrgyz Republic.

The Supreme Arbitration Court of the Kyrgyz Republic, performing justice, on the basis of the regulations of the Arbitral Procedure Code of the Kyrgyz Republic contradicting the Constitution of the Kyrgyz Republic allowed violation of right of defense, stipulated in Article 88 Constitutions of the Kyrgyz Republic and the right to property guaranteed by articles 4 and 19 of the Constitution of the Kyrgyz Republic of each of the parties on the considered economic disputes.

Arguments of representatives of the Supreme Arbitration Court of the Kyrgyz Republic about not jurisdiction of petitions to the Constitutional court of the Kyrgyz Republic are insolvent as on the initiated constitutional legal proceedings in judicial session the question of constitutionality of Chapter 23 of the Arbitral Procedure Code of the Kyrgyz Republic is considered and the being of economic disputes is not mentioned.

Based on stated and being guided by the subitem 1 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 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 3 and Item 3 of article 84 of the Constitution of the Kyrgyz Republic Chapter 23 "Production in cassation instance" of the Arbitral Procedure Code of the Kyrgyz Republic.

To satisfy petitions of Opereyting Company Umayra and Kumtor Limited liability company.

2. Cancel action of Chapter 23 "Production in cassation instance" of the Arbitral Procedure Code of the Kyrgyz Republic.

3. Are not subject to execution:

The resolution of cassation instance of the Supreme Arbitration Court of December 11, 1996 about cancellation of the decision of the Supreme Arbitration Court of the Kyrgyz Republic of October 24, 1996 in the claim of Ak-Kuu Joint-stock company to Umayra Limited liability company about eviction from the non-residential premise;

The resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 17, 1997 about partial cancellation of the decision of Arbitration Court of the city of Bishkek of May 28, 1997 in the claim of the "EXPERT" Joint-stock company to Kumtor Opereyting Company about collection of the amount of 2170255 som.

3. The final decision, is not subject to appeal. Surely to execution by all bodies, officials and citizens.

4. The decision to publish in Sheets of Jogorku Kenesh of the Kyrgyz Republic, in the newspapers "Tuusu Kyrgyz", Slovo Kyrgyzstana, Erkin-LLP and "Our Newspaper".

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