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

of February 24, 2021

On the case of check of constitutionality of article 28 of the constitutional Law of the Kyrgyz Republic "About emergency state", in connection with Zhooshev Zamirbek Turgunbayevich's address.

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 Lobanova Zh. A. secretary.,

with participation:

the addressing party - Zhooshev Zamirbek Turgunbayevich;

the defendant party - Yrysbekova Talanta of Yrysbekovich, to Aldasheva Akylay of Satarovna, representatives of Jogorku Kenesh of the Kyrgyz Republic by proxy;

other persons - Zhusupov Meder Keneshovich, the permanent representative of the President of the Kyrgyz Republic in the Constitutional chamber of the Supreme Court of the Kyrgyz Republic, Abdyrayev Bakyt, the representative of the Government of the Kyrgyz Republic by proxy, Alchiyev Rysbek Karagulovich, the representative of the Prosecutor General's Office of the Kyrgyz Republic by proxy, the Kurmanbayevy Aida of Maratovna, the representative of the Ministry of Justice of the Kyrgyz Republic by proxy,

being guided by parts 1 and 6 of article 97 of the Constitution of the Kyrgyz Republic, Articles 4, of 18, of 19, 37 and 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 article 28 of the constitutional Law of the Kyrgyz Republic "About emergency state".

Reason for consideration of the case was Zhooshev Z. T. petition.

The basis to consideration of this case was the found uncertainty in question of whether there corresponds to the Constitution of the Kyrgyz Republic article 28 of the constitutional Law of the Kyrgyz Republic "About emergency state".

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 Zhooshev Z. T. petition arrived on August 25, 2020., about check of compliance of article 28 of the constitutional Law of the Kyrgyz Republic "About emergency state", speak rapidly 3 Articles 20, to paragraphs to the first and second part 4 of article 24 of the Constitution of the Kyrgyz Republic.

As appears from contents of the address, part 3 of article 20 of the Constitution of the Kyrgyz Republic establishes prohibition on restriction of the rights and freedoms by the law in other purposes and more than it is provided by the Constitution.

At the same time according to paragraphs to the first and second part 4 of article 24 of the Constitution nobody can be subjected to detention for the term of more than 48 hours without judgment. Each detained person quickly and anyway before the expiration of 48 hours from the moment of detention shall be brought to court for the solution of question of legality of his detention.

At the same time article 26 of the constitutional Law "About Emergency State" establishes procedure according to which citizens, including the staff of foreign diplomatic representations, during curfew, being on streets / in other public places or staying out of the dwelling shall have in case of themselves specially issued omissions and identity documents.

Zhooshev Z. T. explains that concerning persons which broke the specified procedure there come effects, stipulated in Article the 28th the above-stated constitutional Law according to which persons which allowed violation of procedure, stipulated in Article 26th this Law are detained by militia or military patrols before the termination of curfew, but not having in case of themselves documents - before identification, but no more than for three days; detainees can be subjected to personal inspection, examination of things and vehicles.

The applicant considers that the disputed Article is in conflict with Constitution regulations as gives authorized bodies the right, without judgment to detain the above-stated persons for the term of more than 48 hours, namely till 72 o'clock, and does not provide obligation of their delivery in court before the expiration of 48 hours from the moment of his detention for check of legality of such detention.

The disputed regulation, in his opinion, limits the human right to freedom and security of person more than it is provided in the Constitution as the term of detention of the person during emergency state can be increased for 24 hours.

Zhooshev Z. T. considers that availability of contradictions between the Constitution and the disputed article is connected with the fact that the constitutional Law "About Emergency State" was adopted on October 24, 1998, i.e. before adoption of the existing Constitution.

The subject of the address notes that the constitutional guarantees established in paragraphs one and the second part 4 of article 24 of the Constitution are aimed at ensuring compliance with the right of each person to freedom and at security of person which are corresponded to Article 3 of the Universal Declaration of Human Rights.

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