Document from CIS Legislation database © 2003-2021 SojuzPravoInform LLC

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

of February 17, 2021

On the case of check of constitutionality of normative provision of part 3 of Article 430 of the Code of penal procedure of the Kyrgyz Republic put into words "the judgments of appellate instance passed according to claims to resolutions of the investigative judge are not subject to revision in cassation procedure", in connection with Vakhitov Valeryan's address of Akhmetovich representing Amatov Tursunbek Osekovich's interests.

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

the chairman - Duysheev K. A., judges Bobukeeva M. R., Zhumabayev L. P., Kasymaliyeva M. Sh., Kydyrbayev К.Дж., Oskonbayeva E. Zh., Saalayeva Zh. I., Sharshenaliyeva Zh. A., in case of the secretary Ablakimov K. A.,

with participation:

the defendant party - Orozobek Maksat's uula, the representative of Jogorku Kenesh of the Kyrgyz Republic by proxy;

other persons - Childebayev Tashtemir Abazovich, the representative of the Office of the President of the Kyrgyz Republic by proxy, Abdyrayev Bakyt, the representative of the Government of the Kyrgyz Republic by proxy, Iskakov Erkin Bakburovich, the representative of the Supreme Court of the Kyrgyz Republic by proxy, Alchiyev Rysbek Karagulovich, the representative of the Prosecutor General's Office of the Kyrgyz Republic by proxy,

being guided by parts 1, of the 6th article 97 of the Constitution of the Kyrgyz Republic, Articles 4, of 18, of 19, of 37, 42 constitutional Laws "About the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic", considered case on check of constitutionality of normative provision of part 3 of Article 430 of the Code of penal procedure of the Kyrgyz Republic put into words "the judgments of appellate instance passed according to claims to resolutions of the investigative judge are not subject to revision in cassation procedure" in proceeding in open court.

Reason for consideration of this case was Vakhitov V. A. petition., Amatov T. O. representing the interests.

The basis to consideration of the case was the found uncertainty in question of whether there corresponds to the Constitution of the Kyrgyz Republic the normative provision of part 3 of Article 430 of the Code of penal procedure of the Kyrgyz Republic put into words "the judgments of appellate instance passed according to claims to resolutions of the investigative judge are not subject to revision in cassation procedure".

Having heard information of the judge-speaker Sharshenaliyev Zh. A., 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 Vakhitov V. A. petition arrived on July 22, 2020., Amatov T. O. representing the interests, about check of compliance of normative provision of part 3 of Article 430 of the Code of penal procedure of the Kyrgyz Republic (further - the Code of Criminal Procedure) put into words "the judgments of appellate instance passed according to claims to resolutions of the investigative judge are not subject to revision in cassation procedure", to parts 2, of 3, to Item of 1 part 4, to Items 1, 8 parts 5 of Article 20, to article 40 of the Constitution of the Kyrgyz Republic.

As appears from the petition and the materials attached to it, on November 25, 2019 the resolution of the investigative judge of the Osh city court in grievance settlement Vakhitov V. A. about recognition illegal resolutions of the deputy chief of investigative department of Head department of the State committee of homeland security of the Kyrgyz Republic on the city of Osh and Osh region of September 30, 2019 about the termination of pre-judicial production it was refused.

The above-named resolution of the Osh city court is left determination of judicial board of the Osh regional court on criminal cases and cases on administrative offenses of December 23, 2019 without change. Besides, in the above-stated determination of judicial board it was noted that it is not subject to appeal.

With respect thereto the subject of the address considers that the disputed regulation, excepting possibility of cassation check by the Supreme Court of legality and justification of the judgments considering questions of application of tortures limits the citizen's right to judicial protection guaranteed by part 1 of article 40 of the Constitution of the Kyrgyz Republic.

Vakhitov V. A., referring to Item of 1 part 4, Items 1 and 8 of part 5 of article 20 of the Constitution, notes that the right to judicial protection is not subject to any restriction. Restriction of the right of the citizen for judicial protection in case of application to it of tortures, leads to violation of article 16 of the Constitution which determines that human rights and freedoms belong to the supreme values of the Kyrgyz Republic.

As the applicant believes, the specified constitutional regulation gives to person opportunity to try to obtain error correction, allowed by courts, and checks by superior courts of legality and justification of the decisions made by subordinate degrees of jurisdiction as justice, in essence, is recognized to that only under condition if it meets the requirements of justice and provides effective recovery in the rights.

The subject of the address, referring to the legal line items of the Constitutional chamber of the Supreme Court of the Kyrgyz Republic stated in its decisions of December 9, 2015, on January 24, 2018, on November 1, 2018 and on June 26, 2019 notes that the right to judicial protection cannot be limited under no circumstances.

Further Vakhitov V. A. brings into reasons for the arguments article 13 of the Convention against tortures and other cruel, inhuman or degrading treatment or punishment (The Kyrgyz Republic joined the Law of July 26, 1996 No. 46) according to which each State Party provides to any person claiming about application of tortures to it in any territory which is under jurisdiction of this state, the right to presentation of the corresponding claim to its competent authorities, and also bystry and its impartial consideration.

The applicant believes that the state not only shall abstain from application of tortures or other types of ill treatment, but also prevent their application, giving opportunity of appeal of the judgment in cassation procedure.

Warning!!!

This is not a full text of document! Document shown in Demo mode!

If you have active License, please Login, or get License for Full Access.

With Full access you can get: full text of document, original text of document in Russian, attachments (if exist) and see History and Statistics of your work.

Get License for Full Access Now

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info

Effectively work with search system

Database include more 50000 documents. You can find needed documents using search system. For effective work you can mix any on documents parameters: country, documents type, date range, teams or tags.
More about search system

Get help

If you cannot find the required document, or you do not know where to begin, go to Help section.

In this section, we’ve tried to describe in detail the features and capabilities of the system, as well as the most effective techniques for working with the database.

You also may open the section Frequently asked questions. This section provides answers to questions set by users.

Search engine created by SojuzPravoInform LLC. UI/UX design by Intelliants.