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

of March 17, 2021

On the case of check of constitutionality of normative provision of part 1 of Article 268 of the Administrative Procedure Code of the Kyrgyz Republic put into words "taken out on the merits of the case" in connection with Isaev Kaybidin Turganbayevich'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 the secretary of Dzholgokpayevoy S.A.,

with participation:

the defendant party - Bukashev Mirlan Abylbekovich, Kayratbekov Adilet Kayratbekovich, representatives of Jogorku Kenesh of the Kyrgyz Republic by proxy;

the other person - Iskakov Erkin Bakburovich, the representative of the Supreme Court 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 case on check of constitutionality of normative provision of part 1 of Article 268 of the Administrative Procedure Code of the Kyrgyz Republic put into words "taken out on the merits of the case" in proceeding in open court.

Reason for consideration of this case was Isaev K. 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 the normative provision of part 1 of Article 268 of the Administrative Procedure Code of the Kyrgyz Republic put into words "taken out on the merits of the case".

Having heard information of the judge-speaker Oskonbayev E. Zh., 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 Isaev K. T. petition arrived on September 14, 2020. about check of compliance of normative provision of part 1 of Article 268 of the Administrative Procedure Code of the Kyrgyz Republic (further - the AIC) put into words to "taken out on the merits of the case", Item 8 of part 5 of Article 20, to parts 1, 2 articles 40 of the Constitution of the Kyrgyz Republic.

As appears from contents of the petition, resolution of city administration Bishkek to Isaev K. T. in temporary use the parcel of land which in subsequent was transferred by the city hall to it to private property was provided.

The applicant in the address specifies that the Kyrgyz state medical academy of I. K. Akhunbayev in 2019 addressed with the administrative claim city administration Bishkek about recognition invalid the above-stated resolutions of city administration Bishkek in which the applicant was the third party.

The subject of the address notes that, along with the above-stated claim, based on part 2 Articles of 110 AIC in addition arrived the petition for recovery of the passed term. The specified petition was satisfied with determination of Interdistrict court of the city of Bishkek.

Further Isaev K. T. specifies that this determination was considered and upheld by the Bishkek city court and the Supreme Court of the Kyrgyz Republic.

In view of the fact that Isaev K. T. was the third party on this case, his representative submitted the lawsuit to the court of the first instance about review of the determination of Trial Court which took legal effect about recovery of the passed term on newly discovered facts. According to the applicant, the Kyrgyz state medical academy of I. K. Akhunbayev misled courts of three instances, referring to the fact that learned about the disputed resolutions of city administration Bishkek in May, 2019 from the reply of the Central Public Records Office of the Kyrgyz Republic. At the same time Isaev K. T. specifies that as the Kyrgyz state medical academy sent copies of the claim to its incorrect address, it could not protect properly the rights and interests in Trial Court.

Trial Court, having studied Isaev K. T. statement., the explanation of the parties, and also the documents submitted by it, granted the application and cancelled determination about recovery of the passed term.

The applicant specifies that the Kyrgyz state medical academy of I. K. Akhunbayev, without having agreed with this determination, made the private complaint according to the procedure of the appeal where the Appeal Court cancelled determination of Administrative court of the city of Bishkek, having proved by the fact that applications on newly discovered facts are submitted for the judgments passed on the substance of dispute.

Isaev K. T. considers that the normative provision of part of 1 Article of 268 AIC put into words "taken out on the merits of the case" contradicts Item 8 of part 5 of Article 20, to parts 1, 2 articles 40 of the Constitution of the Kyrgyz Republic.

According to the applicant, the institute of "review of court resolutions on newly discovered facts" is created in order that party litigants, that is physical persons and legal entities could get freely access to judicial protection, and also protect the rights and interests by all methods, even by review of court resolutions which took legal effect. Review of court resolutions on newly discovered facts in addition acts as the guarantor of legality and justification of the adopted court resolution as the court gives assessment to those proofs which are known to court for that period of time. Respectively, in case of review of court resolutions on newly discovered facts the court can correct the mistakes made in case of removal of initial court resolution.

In this connection, Isaev K. T. considers that the court resolutions which are taken out beside the point dispute can also be wrong that calls into question legality and justification of the adopted court resolution.

The subject of the address refers to Item 8 of part 5 of article 20 of the Constitution of the Kyrgyz Republic which establishes prohibition on restriction of the right to judicial protection.

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