Name of the Kyrgyz Republic
of June 26, 2019
On the case of check of constitutionality of normative provision of Article 271 of the Administrative Procedure Code of the Kyrgyz Republic put into words "but no later than three years from the moment of the introduction in legal force of court resolution" in connection with Muratbayev Kanybek Nasarkulovich's addresses for the benefit of Aribzhanova Azizakhan and Malatash Gold limited liability company
The constitutional chamber of the Supreme Court of the Kyrgyz Republic in structure:
the chairman - the judge Mamyrov E. T., judges Abdiyev K., Aydarbekova Ch. A., Bobukeeva M. R., Duysheev K. A., Kasymaliyeva M. Sh., Kirgizbayev K. M., Narynbekova A. O., Oskonbayeva E. Zh., Osmonova Ch. O., Saalayev Zh. I.,
in case of Kenensariyeva N. A. secretary.,
with participation: the addressing party - Muratbayev Kanybek Nasarkulovich, the representative Aribzhanova Azizakhan by proxy, Rasulov Dilshod Rakhimzhanovich, the representative of Malatash Gold limited liability company (further - OSOO "Malatash Gold") by proxy;
the parties of the defendant - Yrysbekov Talantbek Yrysbekovich, Moldobayev Almazbek Tavaldyevich, representatives of Jogorku Kenesh of the Kyrgyz Republic by proxy;
other persons - Zhusupov Meder Keneshovich, the representative of the Office of the President of the Kyrgyz Republic by proxy, Sapiyanova Margarita Nasarkanovna, the representative of the Supreme Court of the Kyrgyz Republic by proxy, the Kurmanbayevy Aida of Maratovna, the representative of the Ministry of Justice of the Kyrgyz Republic by proxy, Saliyev Azamat Rakhimberdiyevich, the specialist in the field of the right,
Having heard information of the judge-speaker Narynbekova A. O., carrying out preparation of case for judicial session, and having researched the provided materials, the Constitutional chamber of the Supreme Court of the Kyrgyz Republic
established:
As appears from the petition and the materials attached to it, on March 19, 2018 Aribzhanova A. appealed to Interdistrict court of the Osh region with the statement for review on new circumstances of the decision of Interdistrict court of the Osh region of September 24, 2008. This decision the protocol of the Zhany-Nookatsky ayylny district of February 28, 2007 No. 2 and the resolution No. 26 on fixing of the parcel of land with Ploshchad 0,10 of hectares to Aribzhanova A. shop were recognized as invalid.
The declarant as the basis for reconsideration of the case on new circumstances specified the decision of Nookatsky district court of the Osh region of January 12, 2018. This decision the action for declaration of Nasrullayev H. about recovery of the certificate on the property right to shop No. 1, located in the village of Zhany-Nookat of Nookatsky district, is left without satisfaction and took legal effect.
In this regard, Aribzhanova A. appealed to Interdistrict court of the Osh region with the statement for reconsideration of the case on new circumstances. Court, having considered case, the determination of September 25, 2018 left the statement without satisfaction.
According to the Fundamental law of the Kyrgyz Republic all are equal in the Kyrgyz Republic before the law and court, the laws canceling or diminishing rights and freedoms of man and citizen shall not be adopted. The right to judicial protection is not subject to any restriction. Judicial protection of its rights and freedoms provided by the Constitution, the laws, international treaties which participant is the Kyrgyz Republic, the conventional principles and rules of international law is guaranteed to everyone.
Also, the subject of the address specified that in Articles 8, 10 Universal Declarations of Human Rights, Articles 2, 14 International Covenants on Civil and Political Rights, Articles 6, 20 Conventions Commonwealths of Independent States on the rights and fundamental freedoms of the person the obligation of the state on ensuring realization of the right to competent and effective judicial protection through independent fair trial and objective legal proceedings is fixed.
Based on the above, the applicant asks to recognize the disputed precept of law of the contradicting part 3 Articles 16, to parts 1, of 3, to Item 8 of part 5 of Article 20, of part 1 of article 40 of the Constitution of the Kyrgyz Republic.
As appears from the petition, OSOO "Malatash Gold" appealed to the Supreme Court of the Kyrgyz Republic with the statement for review on newly discovered facts of the resolution of the Supreme Court of the Kyrgyz Republic of February 26, 2015 about recognition invalid the protocol of the commission on questions of licensing of subsurface use, regarding cancellation of the license for mineral right for the purpose of development.
In case of this OSOO "Malatash Gold" appealed to the Supreme Court of the Kyrgyz Republic with the petition for recovery of the passed procedural term on filing of application about review of court resolution on newly discovered facts. In reasons for respectfulness of the reasons of the omission of procedural term, the applicant it was made a reference to circumstances which arose only after three years from the moment of removal of the appealed court resolution.
In reasons for the requirement the subject of the address refers to parts 1, 2 articles 20 of the Constitution of the Kyrgyz Republic according to which the laws canceling or diminishing rights and freedoms of man and citizen shall not be adopted, rights and freedoms of man and citizen can be limited to the Constitution and the laws for the purpose of protection of homeland security, public order, health protection and morality of the population, protection of the rights and freedoms of other persons. Such restrictions can be introduced also taking into account features of military or other public service. The introduced restrictions shall be proportional to the specified purposes.
Besides, the subject of the address considers that according to part 1 of article 40 of the Constitution judicial protection of its rights and freedoms which according to Items 3, 8 parts 5 of article 20 of the Constitution, as well as the right to trial de novo by superior court are not subject to any restriction is guaranteed to everyone.
The above-stated address is accepted determination of board of judges of the Constitutional chamber of the Supreme Court of the Kyrgyz Republic of May 20, 2019 to production.
Taking into account that the requirements stated in the above-stated addresses are connected among themselves, the these cases are consolidated by determination of the judge-speaker of May 24, 2019 in one constitutional legal proceedings.
In judicial session the addressing party supported the requirements and asked them to satisfy.
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