NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of April 29, 2008

according to the petition of the citizen Vinnik Victor Vasilyevich for recognition unconstitutional and not corresponding to Item 2 of Article 12, to Item 3 of Article 13, to item 4 of Article 15, to Item 1 of Article 18, to the subitem 1 of Item 1 of Article 82, to Items 1 and 3 of Article 88 and Item 1 of article 90 of the Constitution of the Kyrgyz Republic of item 4 of article 41 of the Law "About the Supreme Court of the Kyrgyz Republic and Local Courts" of July 18, 2003

Constitutional court of the Kyrgyz Republic in structure:

The chairman - Sydykova S. K.,

vice-chairman Sutalinov A. A.,

judges - Abdugaparova A. A., Kenensariyeva A. S., Kurbanova Ch. D., Mamyrov O. Zh., Musabekova Ch. A., Togoybayeva Zh. Zh. and Esenkanova K. E.,

court session secretary Imanaliyev T. U.,

with participation of the parties: the citizen Vinnik Victor Vasilyevich, his representative Tiperov Alexander Vladimirovich who is acting on the basis of the power of attorney of January 25, 2008 and the representative of Jogorku Kenesh of the Kyrgyz Republic Zhusupov Meder Keneshovich who is acting on the basis of the power of attorney of April 1, 2008, signed Toraga of Jogorku Kenesh of the Kyrgyz Republic, being guided by article 85 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 the citizen Vinnik V. V. for recognition unconstitutional and not corresponding to Item 2 of Article 12, to Item 3 of Article 13, to item 4 of Article 15, to Item 1 of Article 18, to the subitem 1 of Item 1 of Article 82, to Items 1 and 3 of Article 88 and Item 1 of article 90 of the Constitution of the Kyrgyz Republic of item 4 of article 41 of the Law "About the Supreme Court of the Kyrgyz Republic and Local Courts" of July 18, 2003.

Having heard the report of the judge of the Constitutional court of the Kyrgyz Republic Abdugaparov A. A., performances of the citizen Vinnik V. V. and his representative Tiperov A. V., representative of Jogorku Kenesh of the Kyrgyz Republic Zhusupov M. K., having researched case papers, the Constitutional court of the Kyrgyz Republic

ESTABLISHED:

In the Constitutional court of the Kyrgyz Republic the petition of the citizen Vinnik V. V. for recognition unconstitutional and not corresponding to Item 2 of Article 12, to Item 3 of Article 13, to item 4 of Article 15, to Item 1 of Article 18, to the subitem 1 of Item 1 of Article 82, to Items 1 and 3 of Article 88 and Item 1 of article 90 of the Constitution of the Kyrgyz Republic of item 4 of article 41 of the Law "About the Supreme Court of the Kyrgyz Republic and Local Courts" of July 18, 2003 on October 20, 2006 arrived.

The following arguments are given to reasons for the petition. By the decision of the Sverdlovsk district court of the city of Bishkek of May 30, 2002 it is refused satisfaction of claim of the citizen Vinnik V. V. about recognition invalid resolutions of public administration of the Sverdlovsk district of the city of Bishkek of July 11, 1994 and the contract of July 27, 1994 between housing and operational management of the area and with his ex-wife Andreyeva-Tropitsina G. N. about privatization of their joint property of the apartment located in the city of Bishkek in the residential district "East-5", the house No. 2, the apartment 72, also of the purchase and sale agreement of the specified apartment concluded on July 29, 1994 between citizens Andreyeva-Tropitsina G. N. and Dzhumaliyev K. S. which is on the right.

Judicial board on civil cases of the Bishkek city court, having considered case on the writ of appeal of the citizen Vinnik V. V., determination of August 12, 2002, left the decision of the Sverdlovsk district court without change.

According to claims of the citizen Vinnik V. V., judicial structure of the Supreme Court of the Kyrgyz Republic on preliminary consideration of claims and representations, being guided by Article 349 of the Code of civil procedure of the Kyrgyz Republic existing at that time, determinations of October 14 and on December 9, 2002, refused initiation of supervising production.

The vice-chairman of the Supreme Court of the Kyrgyz Republic, the letter of February 9, 2004 explained that according to article 41 of the Law "About the Supreme Court of the Kyrgyz Republic and Local Courts" legal cases on which in case of the repeated address with claims to the Supreme Court of the Kyrgyz Republic it was refused initiation of supervising production are not subject to consideration.

The citizen Vinnik V. V. considers that the item 4 of article 41 of the Law "About the Supreme Court of the Kyrgyz Republic and Local Courts" is to the unconstitutional and contradicting Item 2 of Article 12, to Item 3 of Article 13, to item 4 of Article 15, to Item 1 of Article 18, to the subitem 1 of Item 1 of Article 82, Items 1 and 3 of Article 88 and Item 1 of article 90 of the Constitution of the Kyrgyz Republic and violates its constitutional rights on equality of all before the law and court, judicial protection of all rights and freedoms and identical application of the laws to all citizens.

In judicial session citizen Vinnik V. V. and his representative Tiperov A. V. supported the requirements and ask to cancel action of item 4 of article 41 of the Law "About the Supreme Court of the Kyrgyz Republic and Local Courts" in the part granting to the Supreme Court the right not to consider legal cases on which in case of the repeated address with claims it is refused initiation of supervising production in the Supreme Court of the Kyrgyz Republic according to the provisions of the laws of the Kyrgyz Republic operating before entry into force of this Law.

Representative of Jogorku Kenesh of the Kyrgyz Republic, Zhusupov M. K., having agreed with petition arguments, finds possible partial cancellation of regulation of item 4 of article 41 of the Law "About the Supreme Court of the Kyrgyz Republic and Local Courts".

Constitutional court of the Kyrgyz Republic, having discussed arguments of the parties and having researched case papers, considers that the petition of the citizen Vinnik V. V. is subject to satisfaction on the following bases.

From the provided materials it is visible that the vice-chairman of the Supreme Court returned the claim of the citizen Vinnik V. V. without consideration according to the procedure of supervision, having explained that according to article 41 of the Law "About the Supreme Court of the Kyrgyz Republic and Local Courts" legal cases on which in case of the repeated address with claims to the Supreme Court it was refused initiation of supervising production are not subject to consideration.

Article 349 of the Code of civil procedure of the Kyrgyz Republic provided preliminary consideration of claims and representations by judicial structure from three judges of the Supreme Court and possibility of refusal in initiation of supervising production. Afterwards, the Law "About Modification and Amendments in the Code of Civil Procedure of the Kyrgyz Republic" of August 8, 2004, this regulation cancels and gives the chance of appeal of court resolutions in supervising procedure without preliminary consideration.

In the subitem 4 of Item 1 of article 41 of the Law of the Kyrgyz Republic "About the Supreme Court of the Kyrgyz Republic and local courts" of July 10, 2004 it is determined what legal cases on which in case of the repeated address with claims it is refused initiation of supervising production in the Supreme Court of the Kyrgyz Republic according to the provisions of the laws of the Kyrgyz Republic operating before entry into force of this Law is not subject to consideration.

The constitutional court of the Kyrgyz Republic considers that in case of cancellation of the regulation granting the right to judicial structure to refuse initiation of supervising production and provision of the right to citizens for consideration of their claims in supervising procedure, and at the same time, deprivation of such right to citizens whose claims were refused consideration in supervising procedure according to the subitem 4 of Item 1 of article 41 of the Law "About the Supreme Court and Local Courts" earlier violates the item 4 of article 15 of the Constitution of the Kyrgyz Republic guaranteeing judicial protection of freedoms and human rights and Item 1 of article 18 of the Constitution of the Kyrgyz Republic determining that in Kyrgyz the Republics shall not be published the laws canceling freedoms and human rights.

Based on stated and being guided by the subitem 1 of Item 3 of article 85 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 to the unconstitutional and contradicting items 4 of Article 15 and Item 1 of article 18 of the Constitution of the Kyrgyz Republic of the subitem 4 of Item 1 of article 41 of the Law "About the Supreme Court of the Kyrgyz Republic and Local Courts" of July 18, 2003 (in edition of the Law of the Kyrgyz Republic of July 10, 2004) in the part providing the right behind the Supreme Court of the Kyrgyz Republic not to consider legal cases on which in case of the repeated address with claims it is refused initiation of supervising production in the Supreme Court of the Kyrgyz Republic according to the provisions of the laws of the Kyrgyz Republic operating before entry into force of this Law and to cancel its action in this part.

2. Satisfy the petition of the citizen Vinnik Victor Vasilyevich.

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 the Erkintoo, Tuusu's Kyrgyz and Word of Kyrgyzstan newspapers.

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