NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of December 24, 1997

According to the petition of the Federation Council of labor unions of Kyrgyzstan 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 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 July 17, 1997 in the claim of the Federation Council of labor unions of Kyrgyzstan to Kyrgyztur-Bishkek-turbazasy closed joint stock company about recognition of invalid state registration of Kyrgyztur-Bishkek-turbazasy closed 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., Satybekova S. S., Togoybayev Zh. Zh., Esenaliyeva K. E. and Esenkanova K. E.,

with participation of the court session secretary Chynybayev R. A.,

parties: the representative of the Federation Council of labor unions of Kyrgyzstan Chilnikina Tatyana Ivanovna who is acting on the basis of the power of attorney of October 20, 1997, the signed Chairman of the Federation Council of labor unions of Kyrgyzstan, representatives 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 and the Medetbekovy Plane tree Askarbekovna, the senior consultant of this department, the acting on the basis of the powers of attorney of November 27, 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 the Federation Council of labor unions of Kyrgyzstan 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 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 July 17, 1997 in the claim of the Federation Council of labor unions of Kyrgyzstan to Kyrgyztur-Bishkek-turbazasy closed joint stock company about recognition of invalid state registration of Kyrgyztur-Bishkek-turbazasy closed joint stock company in proceeding in open court.

Having heard the report of the judge Dryzhak P. N., speech of the representative of the Federation Council of labor unions of Kyrgyzstan Chilnikina T. I., representatives of the Supreme Arbitration Court of the Kyrgyz Republic of Tyurin V. I. and Medetbekova Ch. A., having researched case papers. Constitutional court of the Kyrgyz Republic

ESTABLISHED:

The Federation Council of labor unions of Kyrgyzstan with the petition 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 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 July 17, 1997 in the claim of the Federation Council of labor unions of Kyrgyzstan to Kyrgyztur-Bishkek-turbazasy closed joint stock company about recognition of invalid state registration of Kyrgyztur-Bishkek-turbazasy closed joint stock company appealed on October 22, 1997 to the Constitutional court of the Kyrgyz Republic.

The following arguments are given to reasons for the petition.

The Federation Council of labor unions of Kyrgyzstan appealed to Arbitration Court of the city of Bishkek with the claim to Kyrgyztur-Bishkek-turbazasy closed joint stock company for recognition of invalid state registration of this society. The Federation Council considers that the camp site "Frunze" was given only right of possession and uses of property of the Federation Council, and its incorporating without the consent of the owner is illegal. The Arbitration Court of the city of Bishkek satisfied with the decision of May 6, 1997 the claim and brought the parties into initial provision. The cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic which structure was created by the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic the resolution of July 17, 1997 cancelled the specified decision of Arbitration Court of the city of Bishkek and stopped proceeedings, having violated their constitutional rights on property guaranteed by articles 4 and 19 of the Constitution of the Kyrgyz Republic. The cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic, was guided by the regulations of the Arbitral Procedure Code of the Kyrgyz Republic regulating production in cassation instance that is Chapter 23 of the Arbitral Procedure Code of the Kyrgyz Republic which contradicts Item 2 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 the cassation instance consisting of three judges, created by the chairman of the Supreme Arbitration Court personally. According to Item 3 of article 79 of the Constitution of the Kyrgyz Republic the organization and procedure for activity of the courts are determined by the Law. However the principles and procedure for forming of cassation instance are not adjusted by any law. The cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic has no legal basis for functioning, is illegal and therefore and the resolution accepted by it of July 17, 1997 also is illegal.

In judicial session representative of the Federation Council of labor unions of Kyrgyzstan Chilnikina T. I., having 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, executive committee of General Confederation of labor unions according to the Charter and the resolution of the fourth Plenum of Council of General Confederation of labor unions "About Fixing of the Rights on Ownership, Use, and the Order (Property Right), Trade-union Property", the resolution of May 22, 1992 No. 1-8 assigned on the property right among other objects camp site "Frunze" to the Federation Council of labor unions of Kyrgyzstan. The camp site "Frunze" in 1995-96 was transformed to Bishkek-turbazasy closed joint stock company, and then - to Kyrgyztur-Bishkek-turbazasy closed joint stock company. Did not give the Federation Council of labor unions of Kyrgyzstan on these transformations of consent. The Arbitration Court of the city of Bishkek, satisfied with the decision of May 6, 1997 the claim of the Federation Council of labor unions of Kyrgyzstan, having recognized state registration of Bishkek-turbazasy closed joint stock company and Kyrgyztur-Bishkek-turbazasy closed joint stock company invalid, brought the parties into initial provision.

The cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic created by the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic as a part of judges: Kozhonova A. A, Vidyaev Yu. V. and Rybalkina A. D., having considered the writ of appeal of Kyrgyztur-Bishkek-Turbazasy closed joint stock company, the resolution of July 17, 1997 cancelled the decision of Arbitration Court of the city of Bishkek of May 6, 1997 and stopped proceeedings.

Under the specified circumstances the Constitutional court of the Kyrgyz Republic considers that consideration of the case and adoption of the resolution by cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic in the specified structure created by the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic in the absence of the law determining procedure for forming of this instance and the body creating it violates Item 3 of article 79 of the Constitution of the Kyrgyz Republic providing that the organization and procedure for activity of the courts is determined by the Law.

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 the cassation instance created from three judges of the Supreme Arbitration Court of the Kyrgyz Republic.

Taking into account the circumstances established in judicial session, the Constitutional court of the Kyrgyz Republic considers that implementation of justice and decision making by cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic which does not have the legal basis violates constitutional rights of the Federation Council of labor unions of Kyrgyzstan on property, its immunity and on protection at any stage of process of consideration of legal case, guaranteed by Articles 4, 19 and Item 2 of article 88 of the Constitution of the Kyrgyz Republic, and law-enforcement practice, established by cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic the resolution of July 17, 1997 in the claim of the Federation Council of labor unions of Kyrgyzstan to Kyrgyztur-Bishkek-turbazasy closed joint stock company about recognition of invalid state registration of this joint-stock company is unconstitutional and contradicts 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 the unconstitutional and contradicting Item 3 Article 79 and to 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 July 17, 1997 in the claim of the Federation Council of labor unions of Kyrgyzstan to Kyrgyztur-Bishkek-turbazasy closed joint stock company about recognition of invalid state registration of Kyrgyztur-Bishkek-turbazasy closed joint stock company.

Satisfy the petition of the Federation Council of labor unions of Kyrgyzstan.

2. The resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 17, 1997 about cancellation of the decision of Arbitration Court of the city of Bishkek of May 6, 1997 in the matter of No. 22/15 пр in the claim of the Federation Council of labor unions of Kyrgyzstan to Kyrgyztur-Bishkek-turbazasy joint-stock company about recognition of invalid state registration and invalid all effects caused by this state registration, reduction in initial provision of legal position of camp site "Frunze" and suit abatement is not subject to execution.

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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