DECISION OF THE CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF THE KYRGYZ REPUBLIC

of September 24, 2014

On the case of check of constitutionality of normative provisions of the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic", allowing education and functioning in Jogorku Kenesh of the Kyrgyz Republic of deputy groups, in connection with addresses of the citizen Kochkarova E. A., Respublika and Ata-Zhurt fractions of Jogorku Kenesh of the Kyrgyz Republic

The constitutional chamber of the Supreme Court of the Kyrgyz Republic in structure:

the chairman - the judge Kasymaliyev M. Sh., Aydarbekova Ch. A. judges., Bobukeeva M. R., Mamyrov E. T., Narynbekova A. O., Oskonbayeva E. Zh., Osmonova Ch. O., Sooronkulova K. S., in case of the secretary Tolobaldiyev M. E.,

with participation: the addressing party - the representative of the citizen Kochkarovy E. A. Gerasko V. V. by proxy, representatives of Respublika fraction of Jogorku Kenesh of the Kyrgyz Republic of Arzybayev A. S. and Orozakunova A. Zh. by proxy,

the parties - the defendant Sadykov K. R., the Jogorku Kenesh of the Kyrgyz Republic representing the interests by proxy,

being guided by parts 1, of the 6th article 97 of the Constitution, Articles 1, of 4, of 18, of 19, of 24, of 37, 42 constitutional Laws "About the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic", considered in proceeding in open court case on check of constitutionality of normative provisions of the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic", allowing education and functioning in Jogorku Kenesh of the Kyrgyz Republic of deputy groups.

Reason for consideration of the case were the petition of the citizen Kochkarova E. A. and representations of Respublika and Ata-Zhurt fractions of Jogorku Kenesh of the Kyrgyz Republic.

The basis to consideration of this case was the found uncertainty in question of whether there correspond Constitutions normative provisions of Items 3, 8 parts 1, of Items 2, 5 parts 2 Articles 9, of Item 7 of Article 10, of Article 14, to part 3 Articles 16, of part 1 of article 20 of the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic" (further - normative provisions of the Law), the allowing education and functioning in Jogorku Kenesh of the Kyrgyz Republic of deputy groups.

Having heard information of the judge-speaker Mamyrov E. T., the case which was carrying out preparation for judicial session, and having researched the provided materials, the Constitutional chamber of the Supreme Court of the Kyrgyz Republic

established:

In the Constitutional chamber of the Supreme Court of the Kyrgyz Republic (further - the Constitutional chamber) the petition of the citizen Kochkarova E. A. arrived on September 25, 2013. about recognition unconstitutional and contradicting Articles 70, 73 Constitutions of the Kyrgyz Republic the normative provisions of the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic" stated by the words "deputy group" and words "in case of discrepancy of political views it can not be part of the specified fraction in case of its forming and remain the free deputy. The deputies of Jogorku Kenesh having other political view having the right to unite in fraction and out of fraction in deputy groups. Deputy group - consolidation of three and more deputies of Jogorku Kenesh" regarding 1 Article 14.

Kochkarova E. A. considers that the legislator, having made changes and additions to the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic" the Law of the Kyrgyz Republic of February 4, 2013 No. 12 and allowing possibility of functioning in Jogorku Kenesh of the Kyrgyz Republic of deputy groups, created premises to crushing and the termination of activities of deputy fractions that entailed violation of the voting rights of citizens who gave the votes during elective process to these or those political parties participating in elections.

According to Kochkarova E. A., according to part 3 of article 70 of the Constitution of the Kyrgyz Republic, deputies unite in fraction, and the fraction of deputies of Jogorku Kenesh of the Kyrgyz Republic is consolidation of the deputies elected according to the list from one political party. The deputy, according to article 73 of the Constitution of the Kyrgyz Republic, is not connected by the imperative mandate and its response is not allowed. Powers of the deputy of Jogorku Kenesh of the Kyrgyz Republic stop ahead of schedule in case of submission of the written application by it about addition of deputy powers or exit from fraction. Follows from the specified regulations of the Constitution of the Kyrgyz Republic that the deputy of Jogorku Kenesh of the Kyrgyz Republic without fail shall be as a part of fraction and does not allow possibility of functioning of any other consolidation of deputies, except fraction.

In this regard, Kochkarova E. A. asks to recognize the normative provisions of the Law allowing education and functioning in Jogorku Kenesh of the Kyrgyz Republic of deputy groups, unconstitutional and contradicting part 3 Articles 70, of part 3 of article 73 of the Constitution of the Kyrgyz Republic.

The petition of the applicant was accepted determination of board of judges of the Constitutional chamber of November 5, 2013 to production.

The Respublika fraction of Jogorku Kenesh of the Kyrgyz Republic about recognition the unconstitutional and contradicting part 3 Articles 4, to parts 1, 2 Articles 6, of part 3 of article 70 of the Constitution of the Kyrgyz Republic of change and additions educations providing opportunity made to the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic", the Law of the Kyrgyz Republic of February 4, 2013 No. 12, in Jogorku Kenesh of the Kyrgyz Republic of deputy groups as associations of the deputies functioning along with fraction of deputies addressed on January 29, 2014 to the Constitutional chamber with representation.

The Respublika fraction considers that Jogorku Kenesh of the Kyrgyz Republic, having adopted the Law of the Kyrgyz Republic of February 4, 2013 No. 12, created the legal basis for introduction of new parliamentary institute - "deputy group" which can be formed by deputies as inside, and out of fraction. With adoption of the specified Law education in Jogorku Kenesh of the Kyrgyz Republic of unconstitutional educations in the form of deputy groups "Onuguu-Progress", "Yntymak" of deputies of Respublika and Ata-Zhurt fractions became possible.

The Respublika fraction notes that changes and additions made to the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic", providing possibility of education and functioning of deputy groups in Jogorku Kenesh of the Kyrgyz Republic contradict part 3 of article 4 of the Constitution of the Kyrgyz Republic as the political parties which went to Jogorku Kenesh of the Kyrgyz Republic on pro rata election system promote expression of political declaration of will of citizens. The voters who voted for this or that political party expressed the consent to implementation of the election programme of this batch and to representation in Jogorku Kenesh of the Kyrgyz Republic of the citizens included in the party list. The fractions which left structure and the deputies who united in deputy groups cannot be conductors of the election programme of batch, the political rights not only the political parties which went to Jogorku Kenesh of the Kyrgyz Republic but also their voters as they did not vote thereby are violated and could not vote for programs and these members of deputy groups.

The applicant asks to pay attention to part 3 of article 70 of the Constitution of the Kyrgyz Republic by which it is determined that deputies of Jogorku Kenesh of the Kyrgyz Republic unite in fraction and the Country constitution does not provide any other forms of consolidation of deputies. Therefore, the deputy of Jogorku Kenesh of the Kyrgyz Republic without fail shall consist and participate in work of the supreme representative body of the country as a part of fraction. Thus, the changes and amendments allowing possibility of education of deputy groups brought in the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic" contradict this regulation of the Constitution of the Kyrgyz Republic.

Also the Respublika fraction believes that the above-stated changes contradict parts 1, 2 articles 6 of the Constitution of the Kyrgyz Republic. According to the specified article of the Constitution on the basis of the Constitution of the Kyrgyz Republic the constitutional laws, the laws and other regulatory legal acts are adopted. The disputed changes and amendments are accepted in defiance of the principle of the highest legal force of the Constitution of the Kyrgyz Republic as create the legal basis and possibility of the organization in the supreme representative body of the country of such unconstitutional education as deputy group.

Due to stated, the Respublika fraction asks to recognize changes and additions made to the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic", the Law of the Kyrgyz Republic of February 4, 2013 No. 12, the allowing education and functioning in Jogorku Kenesh of the Kyrgyz Republic of deputy groups, unconstitutional and contradicting part 3 Articles 4, to parts 1, 2 Articles 6, of part 3 of article 70 of the Constitution of the Kyrgyz Republic.

Representation of Jogorku Kenesh of the Kyrgyz Republic to Respublika fraction was accepted determination of board of judges of the Constitutional chamber of February 11, 2014 to production.

The Ata-Zhurt fraction of Jogorku Kenesh of the Kyrgyz Republic with similar requirements addressed to the Constitutional chamber on January 31, 2014 with representation.

The Ata-Zhurt fraction considers that changes and additions made to the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic" by the Law of the Kyrgyz Republic of February 4, 2013 No. 12, which affirms the rights of deputies to consolidation in deputy groups created premises for education of the deputy groups "For Reforms", "Birdiktuu Yntymak", "Onuguu". However by part 3 of article 70 of the Constitution of the Kyrgyz Republic it is determined that deputies unite in fraction and this regulation of the Constitution of the Kyrgyz Republic does not allow to speak about possibility of existence of deputy groups in Jogorku Kenesh of the Kyrgyz Republic. It also follows from contents of article 73 of the Constitution of the Kyrgyz Republic according to which the deputy is not connected by the imperative mandate and its response is not allowed, powers of the deputy of Jogorku Kenesh of the Kyrgyz Republic stop ahead of schedule in case of submission of the written application by it about addition of deputy powers or exit from fraction. Follows from this regulation that the deputy of Jogorku Kenesh of the Kyrgyz Republic shall be without fail included in structure of fraction. Taking into account stated the Ata-Zhurt fraction comes to conclusion that action of regulations of the above-stated Law contradict regulations of the Constitution of the Kyrgyz Republic and does not promote construction of the party political system installed regarding the 2nd article 70 of the Constitution of the Kyrgyz Republic.

The Ata-Zhurt fraction notes that availability in the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic" the regulations granting right to education of deputy groups can lead to crushing of deputy fractions on different deputy groups that activities of Jogorku Kenesh of the Kyrgyz Republic, regarding forming of parliamentary majority and parliamentary opposition, with all that it implies threaten. The possibility of education in Jogorku Kenesh of the Kyrgyz Republic of deputy groups denies the party principle of forming of parliament proclaimed the Constitution of the Kyrgyz Republic.

The applicant believes that the specified changes and amendments contradict also part 3 Articles 4, to parts 1, 2 articles 6 of the Constitution of the Kyrgyz Republic. The political parties which went to Jogorku Kenesh of the Kyrgyz Republic on pro rata election system promote expression of political declaration of will of citizens. The voters who voted for this or that political party expressed the consent to implementation of the election programme of this batch and to representation in Jogorku Kenesh of the Kyrgyz Republic of the citizens included in the party list. Implementation of the election programme of game shall be plaid by fraction which is created of number of persons who received the mandate of the deputy according to the party list. Deputy groups cannot be conductors of the election programme of batch as the principle of their forming - discrepancy of political views of the deputy with the line of batch according to which list he is elected. Thus, the political rights not only the political parties which went to Jogorku Kenesh Kyrgyz are violated

The republics, but also their voters as they did not vote and could not vote for programs and members of these deputy groups.

The constitution of the Kyrgyz Republic has the highest legal force and on its basis the laws are adopted. However changes and additions made to the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic" the legislator provided such type of consolidation of deputies as deputy group which is not provided by the Constitution of the Kyrgyz Republic.

Taking into account stated, the Ata-Zhurt fraction asks to recognize changes and additions made to the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic", regarding education and functioning of deputy groups, unconstitutional and contradicting part 3 Articles 4, to parts 1, 2 Articles 6, of part 3 of article 70 of the Constitution of the Kyrgyz Republic.

Representation of Jogorku Kenesh of the Kyrgyz Republic to Ata-Zhurt fraction was accepted determination of board of judges of the Constitutional chamber of the Supreme Court of the Kyrgyz Republic of February 11, 2014 to production.

Considering uniformity of requirements of the citizen Kochkarova E. A., Respublika and Ata-Zhurt fractions of Jogorku Kenesh of the Kyrgyz Republic, cases are connected by determination of the judge-speaker of February 11, 2014 in one constitutional legal proceedings.

In judicial session the addressing party supported the requirements and asks them to satisfy.

Representative of the defendant party Sadykov K. R. did not agree with arguments of the addressing party and considers that changes and additions made to the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic" do not contradict the Constitution of the Kyrgyz Republic.

The constitutional chamber, having discussed arguments of the parties and having researched case papers, came to the following conclusions.

1. According to part 4 of article 19 of the constitutional Law "About the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic" the Constitutional chamber takes out acts in the subject mentioned in the address only concerning that part of regulatory legal act which constitutionality is called in question.

Thus, subject of consideration of the Constitutional chamber of this case are normative provisions of the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic", the allowing education and functioning in Jogorku Kenesh of the Kyrgyz Republic of deputy groups.

The law of the Kyrgyz Republic of December 18, 2008 is adopted No. 267 "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic" according to the procedure established by the legislation published in Sheets of Jogorku Kenesh of the Kyrgyz Republic of 2008 No. 10, entered in the State register of regulatory legal acts of the Kyrgyz Republic and is acting.

The law of the Kyrgyz Republic "About modification and amendments in the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic" of February 4, 2013 is accepted No. 12 according to the procedure established by the legislation published in the newspaper of "Erkin-limited liability partnership" of February 8, 2013 No. 9, is entered in the State register of regulatory legal acts of the Kyrgyz Republic and is acting.

2. According to the Constitution the Kyrgyz Republic is the sovereign, democratic, constitutional state where the carrier of sovereignty and the single source of the government are its people which perform the power directly on elections and referenda, and also through system of state bodies (part of 1 Article 1, of part 1, 2 articles 2 of the Constitution of the Kyrgyz Republic). Citizens of the Kyrgyz Republic have the right to choose and be elected to public authorities (Item 2 of part 1 of article 52 of the Constitution of the Kyrgyz Republic).

The constitutional guarantees of the right to choose and be elected to public authorities are form of realization of direct and representative democracy.

Realizing forms of direct democracy, citizens express the will directly, expressing the opinion on referendum, and also voting for this or that candidate on elections. In case of representative democracy the people, having chosen from among citizens of deputies in representative bodies of the government, delegates it the right to adopt the laws and to resolve other major issues of the state and public life.

Thus, deputies of the supreme representative body of the government become government carriers, as a result of free elections as highest direct expression of the power of the people and, respectively, express will and interests of different groups of citizens voters.

3. Article 70 of the Constitution of the Kyrgyz Republic determines that the Jogorku Kenesh of the Kyrgyz Republic is the supreme representative body of the country consisting of 120 deputies elected for a period of 5 years on pro rata system, and performing legislature and control functions within the powers provided by the Constitution of the Kyrgyz Republic.

The electoral system of elections of deputies of Jogorku Kenesh of the Kyrgyz Republic to interrelations with parts provided by the Constitution of the Kyrgyz Republic 2, 3 articles 4 of the Constitution of the Kyrgyz Republic predetermines active and direct participation of political parties in the course of forming of the supreme representative body - parliament of the Kyrgyz Republic. Political parties as voluntary associations of citizens within civil society, act as the necessary institute of representative democracy providing participation of citizens in political life of the society promoting expression of political declaration of will of citizens.

The legal relations connected with preparation and elections of deputies of Jogorku Kenesh of the Kyrgyz Republic according to the Constitution of the Kyrgyz Republic are determined by the constitutional law (the paragraph the fourth parts 2 of article 70 of the Constitution of the Kyrgyz Republic). Such constitutional law is the Law "About Election of the President of the Kyrgyz Republic and Deputies of Jogorku Kenesh of the Kyrgyz Republic".

Owing to part 2 of article 60 of this constitutional Law of the Kyrgyz Republic in interrelation with part 3 Articles 4, part 2 of article 70 of the Constitution the political parties participating in elective process in Jogorku Kenesh of the Kyrgyz Republic at congress of political party make the decision on promotion of the candidate list. Candidates, agreeing with the party promotion, give the grounds to lawful expectations of voters that the elected deputies will be included into party fraction and will take measures to the approved implementation of the powers in its structure.

On the elections held on pro rata electoral system, voters vote for the candidate lists pushed by political party. The mandates won by the list are distributed between candidates according to priority of their arrangement in the list. Thereby election of the deputy as a part of the party list means following to the election programme of batch as a part of deputy fraction. Other would mean impossibility of following to the election programme of batch if the deputy elected according to the party list is free from participation in the relevant fraction and, moreover, is allocated with the right of creation of deputy group out of fraction as other consolidation as a part of the Jogorku Kenesh of the Kyrgyz Republic functioning along with fraction of deputies.

4. Proceeding from the principle of political variety and pro rata election system of deputies of Jogorku Kenesh of the Kyrgyz Republic, the Constitution of the Kyrgyz Republic fixes bases of structuring and the internal organization of activities of Jogorku Kenesh of the Kyrgyz Republic (Articles 70, 75, 76).

According to part 3 of article 70 of the Constitution of the Kyrgyz Republic deputies of Jogorku Kenesh of the Kyrgyz Republic unite in fraction. The fraction or the coalition of fractions having more than a half of deputy mandates is considered parliamentary majority. The parliamentary opposition is considered the fractions or fractions which are not part of parliamentary majority and announced the opposition in relation to it. Deputies of Toraga of Jogorku Kenesh of the Kyrgyz Republic are elected in the quantity and procedure providing their election from among the deputies who are part of parliamentary opposition, chairmen of committees on questions of the budget and law and order are representatives of parliamentary opposition (part of 1 Article 75, part 1 of article 76 of the Constitution of the Kyrgyz Republic). The fraction having more than a half of deputy mandates or the coalition of fractions (parliamentary majority) creates the Government of the Kyrgyz Republic (article 84 of the Constitution of the Kyrgyz Republic).

Thus, parliamentary fractions take the key place in the parliamentary mechanism. The sense of the specified constitutional provisions considered in their interrelation means that the deputy cannot remain out of fraction and to be the free deputy, or to unite in separate extra fractional deputy groups.

Such design of the organization and activities of Jogorku Kenesh of the Kyrgyz Republic pledged in the Constitution of the Kyrgyz Republic is directed to preserving results of elective process and the party and political relations in case of departure of the electoral public power and aims to prevent possibility of use by deputies of deputy independence in departure of conditions of the election, and also not to allow any order the deputy mandate contrary to the constitutional beginnings of democracy and multi-party system.

5. The constitutional and legal sense of part 3 of article 70 of the Constitution of the Kyrgyz Republic as it was noted above, fixes stay of the deputy in fraction as its constitutional obligation, but is not right.

In this connection, the Constitution of the Kyrgyz Republic as one of the bases of early termination of powers of the deputy provided secession of fraction (Item of 1 part 3 Articles 73). Therefore, the Constitution of the Kyrgyz Republic connects operation of the representative mandate of the deputy with its occurrence and stay in deputy fraction of political party according to which list he was elected.

Reasons for acceptance of the challenged normative provisions of the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic" the understanding as the legislator of article 73 of the Constitution of the Kyrgyz Republic, that is essence not of the imperative mandate, and respectively, sense of part 3 of article 70 of the Constitution of the Kyrgyz Republic as lack of prohibition on creation of deputy groups out of fractions served.

However the constitutional and legal sense of part 3 of article 70 of the Constitution of the Kyrgyz Republic is stated in Items 2, of 3, 4 presents of the decision and the Constitutional chamber once again notes that other understanding of article of the Constitution of the Kyrgyz Republic would lead to misstatement of essence and content of the pro rata election system pledged in the Constitution of the Kyrgyz Republic. Political parties which are participating in elective process and received certain number of mandates in Jogorku Kenesh of the Kyrgyz Republic are spokesmen of political will of voters, and any change of the political ratio created by free declaration of will of the people cannot be considered lawful including by means of creation of deputy groups out of fraction.

The deputy of Jogorku Kenesh of the Kyrgyz Republic, according to part 1 of article 73 of the Constitution of the Kyrgyz Republic, is not connected by the imperative mandate, and the response of the deputy is not allowed. This regulation assumes that each deputy is independent in adoption of any decisions and cannot be withdrawn before the expiration of powers.

The status of the deputy who is not connected by the imperative mandate grants it the right to have own views and opinions which are not matching with opinion of fraction that allows the deputy to make freely the decision which is equitable to his internal beliefs and interests of voters. Not the imperative mandate provides to deputies of Jogorku Kenesh of the Kyrgyz Republic observance of liberty principle when the batch cannot recall the deputy, and the deputy has the right to vote at discretion.

Lack of the imperative mandate of the deputy of Jogorku Kenesh of the Kyrgyz Republic answers the providing purpose in parliament of pluralism of opinions which assumes collision of interests, discussions between supporters of the different points of view, possibility of existence of different political views, variety of line items and representations. However it does not assume possibility of the free order the representative mandate, both the deputy, and parliamentary fraction, in case of exception of fraction, nonparticipation of the deputy in activities of fraction, education by deputies of deputy group out of fraction.

Thus, the challenged normative provisions of the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic", providing the right of the deputy not to be part of fraction and to remain the free deputy, and also to unite out of fraction in deputy groups, do not correspond to the above-stated constitutional establishments.

6. The provision of article 14 of the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic" provides also the right of the deputy of the Jogorku Kenesh of the Kyrgyz Republic having other political view to unite in fraction in deputy groups. This normative provision does not enter direct contradiction with the Constitution of the Kyrgyz Republic as it allows to provide pluralism of opinions of deputies within one fraction and to avoid party dictatorship.

Value not of the imperative mandate in the conditions of the modern state consists in restriction of pressure upon the deputy from political parties, besides, such legal design creates premises for free expression by deputies of the political views and the ideas different from opinion of most of members of fraction, the statement of opinions, upholding and protection of interests of voters.

In this connection, the deputies of one fraction having other line items on cases in point and also on activities of the fraction in general having the right to unite in groups which can have both temporary, and steady nature. However such groups cannot be given the rights inherent to parliamentary fractions.

7. Subjects of the address believe that changes and additions made to the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic" the Law of the Kyrgyz Republic of February 4, 2013 No. 12, contradict parts 1, 2 articles 6 of the Constitution as are accepted in defiance of the principle of the highest legal force of the Constitution of the Kyrgyz Republic.

Rule of the Constitution of the Kyrgyz Republic means that any legal act, any action of authority or its official shall meet standards of the Constitution of the Kyrgyz Republic, not contradict their instructions. Need to provide unity, integrity and consistency of all system of the right causes rule of the Constitution of the Kyrgyz Republic. The laws and other legal acts adopted in the Kyrgyz Republic shall not contradict the Constitution of the Kyrgyz Republic.

For permission of the contradictions arising in practice, problems, ensuring supremacy, the highest legal force of the constitutional regulations in the Kyrgyz Republic the body of the constitutional control - the Constitutional chamber of the Supreme Court of the Kyrgyz Republic is created.

In this connection, the adopted regulatory legal acts shall be considered and be applied proceeding from the principle of presumption of constitutionality. Therefore approval about violation of the principle of the highest legal force of the Constitution of the Kyrgyz Republic in case of modification and amendments in the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic", proceeding from own understanding of regulation of the Constitution of the Kyrgyz Republic, is incorrect.

The obligation of check of constitutionality of regulatory legal acts is assigned to body of the constitutional control and this body determines constitutionality or not constitutionality of the disputed regulatory legal act.

Based on stated and being guided by Item of 1 part 6, parts 8, of the 9th article 97 of the Constitution of the Kyrgyz Republic, Articles 46, of 47, of 48, of 51, 52 constitutional Laws of the Kyrgyz Republic "About the Constitutional chamber of the Supreme Court of the Kyrgyz Republic", the Constitutional chamber

solved:

1. Recognize normative provisions of Items 3, 8 parts 1, of Items 2, 5 parts 2 Articles 9, of Item 7 of Article 10, of Article 14, of part 3 Articles 16, of part 1 of article 20 of the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic" in the part providing the right of the deputy not to be part of fraction in case of its forming and to remain the free deputy, to unite in deputy groups out of fraction, and also functioning of such associations in Jogorku Kenesh of the Kyrgyz Republic along with the fractions of deputies of Jogorku Kenesh of the Kyrgyz Republic contradicting part 3 Articles 4, speak rapidly 3 Articles 70, of part 3 of article 73 of the Constitution of the Kyrgyz Republic.

2. Recognize normative provisions of the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic", providing right of deputies to unite in deputy groups in fraction of deputies of Jogorku Kenesh of the Kyrgyz Republic without investment with their rights inherent to parliamentary fractions, unrepugnant speak rapidly 3 Articles 4, of part 3 Articles 70, of part 3 of article 73 of the Constitution of the Kyrgyz Republic.

3. To Jogorku Kenesh of the Kyrgyz Republic to bring in the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic" the corresponding changes and amendments following from this decision.

4. The final decision and to appeal is not subject, becomes effective from the moment of declaration.

5. The decision is obligatory for all state bodies, local government bodies, officials, public associations, legal entities and physical persons and is subject to execution in all territory of the Kyrgyz Republic.

6. Publish this decision in official publications of public authorities, on the official site of the Constitutional chamber and in "The bulletin of the Constitutional chamber of the Supreme Court of the Kyrgyz Republic".

Chairman

M. Kasymaliyev

Judges:

Ch. Aydarbekova M. Bobukeeva E.Mamyrov A. Narynbekova E.Oskonbayev Ch. Osmonova K. Sooronkulova

Special opinion

judges of the Constitutional chamber of the Supreme Court of the Kyrgyz Republic of Oskonbayev E. Zh. and Sooronkulova K. S. to the Decision of the Constitutional chamber of September 24, 2014 on the case of check of constitutionality of normative provisions of the Law of the Kyrgyz Republic "About the status of the deputy of Jogorku Kenesh of the Kyrgyz Republic", allowing education and functioning in Jogorku Kenesh of the Kyrgyz Republic of deputy groups, in connection with addresses of the citizen Kochkarova E. A., Respublika and Ata-Zhurt fractions of Jogorku Kenesh of the Kyrgyz Republic

Our disagreement with Items 6 and 7 of motivation part of the Decision of the Constitutional chamber (further - the Decision) and, respectively, with Item 2 of substantive provisions of the Decision, is expressed in following:

1. The constitutional chamber recognized the normative provisions providing creation and functioning of deputy groups out of parliamentary fractions, unconstitutional. In this part of the Decision, conclusions of the Constitutional chamber are proved and weighed. Constitutional and legal sense and content of part 3 Articles 70, of part 2 and Item 1 of part 3 of article 73 of the Constitution, the legal essence of conditions of forming, structure and activities of Jogorku Kenesh predetermined by the constitutional regulations excludes possibility of existence of other deputy associations, except parliamentary fractions.

At the same time, the Constitutional chamber considers, that deputy groups can be created and function in parliamentary fractions that, according to arguments of the Constitutional chamber, provides independence of deputies in fractions and creates conditions for counteraction to party and fractional dictatorship in case of the solution of these or those questions. At the same time, the Constitutional chamber especially specifies that intra fractional deputy groups are not allocated with "the rights inherent to fractions". These arguments of the Constitutional chamber contain explicit contradiction with the main conclusion of the Decision determining that only parliamentary fractions can be the single type of deputy associations in Jogorku Kenesh, according to constitutional and legal logic of forming and functioning of parliament and literal sense of article 70 of the Constitution. Proceeding from it, official legislative recognition of deputy groups in the form of deputy associations, in the quality approved by the Constitutional chamber, shall be considered as contradicting the Constitution.

However, the Constitutional chamber, recognizing constitutionality of intra fractional deputy groups, thereby gives to the legislator opportunity of further formalization of their legal status that in turn, not only it is unconstitutional, but also it does not make any certain legal sense. The nature of parliamentary activities as such assumes different forms of communications between deputies, the majority them which does not carry and cannot have the formalized character. In this sense deputies are not forbidden to be grouped in fraction for forming, expression and upholding of the line items, views and interests which are not matching with most of members of fraction. One of the most important aspects of independence of the deputy of Jogorku Kenesh which guarantee is the constitutional establishment about not imperativeness of the mandate consists in it. Arguments of the Constitutional chamber concerning intra fractional deputy groups can be understood as their recognition as these or those interest groups which do not have the status of deputy consolidation. But also in this case, there is lawful question: in what sense of their official recognition by the legislator?

Also it should be noted that for the purpose of uniform application and understanding of legal regulations, the legislator shall use the terms and categories which settled in jurisprudence and practice. Concepts "fraction" and "deputy group" are used for designation of form and differentiation of the bases of consolidation of deputies. As a rule, fractions testify to party membership of consolidation while deputy groups have nonparty origin. At the same time terminologically both concepts are used for designation of equal and independent subjects of the parliamentary right. Therefore, use by the legislator of category "deputy group" in the sense differing from traditional settled and applied in the right, leads to creation of terminological confusion that in turn breaks all-legal principle of uniform application and understanding of legal regulations.

Thus, proceeding from the constitutional provisions and arguments of the Constitutional chamber, associations of deputies in fractions cannot hereinafter be referred to as as deputy group, and moreover, possible forms of associations of deputies in fractions cannot be allocated with legal status, so their legislative recognition and regulation of their activities does not make sense.

2. In Item 7 of motivation part of the Decision, the Constitutional chamber recognized the disputed normopolozheniye not contradicting parts 1 and 2 of article 6 of the Constitution. The principle of rule of the Constitution assumes strict compliance of all laws of the Constitution, any legal act cannot change or supplement Constitution provisions, it shall be accepted only in pursuance of the Constitution. The wide diskretion of the legislator is admissible only in those spheres which are not settled by the Constitution neither directly, nor indirectly, and also the cases allowed by the Constitution. In case of direct regulation by the Constitution of these or those legal relations, the Jogorku Kenesh has no right to allow the legal regulation supplementing or changing the constitutional establishments, especially distorting their true constitutional and legal meaning. Part 3 of article 70 of the Constitution is the direct instruction, on the content and the sense interconnected with other regulations of the Constitution does not assume functioning in parliament of other types of associations of deputies, except parliamentary fractions.

3. Besides, in case in point the legislator allowed any and wrong interpretation of part 3 of article 70 of the Constitution, assuming that lack of prohibition on creation of other types of deputy associations, means freedom of its discretion and the choice of actions in this sphere. The similar right understanding concerning the constitutional regulations has dangerous tendency of departure from the principles of the constitutional state in which the obshchedozvolitelny method of legal regulation expressed by the principle "everything that is not forbidden by the law" is authorized is effective concerning the citizen, and concerning activities of the state, its bodies and officials, the allowing method of legal regulation meaning that "only what is offered the law is authorized" is effective. Ignorance or wrong interpretation of regulations of the Constitution by the legislator in case of adoption of the laws and separate legislative provisions shall be regarded as violation of the principle of rule of the Constitution and the more so does not exempt legislature from the constitutional liability including by recognition of such regulations unconstitutional from body of the constitutional control.

Judges:

E.Oskonbayev K. Sooronkulova

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