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RESOLUTION OF THE PLENUM OF THE SUPREME ECONOMIC COURT OF THE REPUBLIC OF TAJIKISTAN

of December 29, 2004 No. 3

About application of the Economic Procedure Code of the Republic

Tajikistan in case of review on newly discovered facts

the court resolutions of economic courts which took legal effect

1. In case of the solution of question of review on newly discovered facts of court resolutions economic courts of the first, appeal and cassation instances should recognize that the list of the bases for such review provided in part 2 of Article 192 of the Economic Procedure Code of the Republic of Tajikistan is exhaustive.

2. Economic courts need to mean that circumstances in connection with which opening the court resolution is reviewed shall be essential, that is capable to affect conclusions of economic court in case of acceptance of court resolution.

3. Review on newly discovered facts of court resolution is inadmissible when such circumstances are absent, and there are bases for review of court resolution in cassation or supervising procedure. In these cases the economic court shall refuse review on newly discovered facts of court resolution, proving the refusal by lack of the specified circumstances.

So, the decision of economic court cannot be reviewed on newly discovered facts if the actual circumstances arose after acceptance of court resolution as in sense of Item 1 of part 2 of Article 192 of the Economic Procedure Code of the Republic of Tajikistan the basis for such review is opening of circumstances which though objectively and existed, but could not be considered as were not and could not be known to the applicant.

The new circumstances which arose after acceptance of court resolution can be the basis not for its review but to newly discovered facts, and for presentation of the new claim.

4. According to Item 3 of part 2 of Article 192 of the Economic Procedure Code of the Republic of Tajikistan criminal acts of persons participating in case, either their representatives or the criminal actions of judges committed by consideration of this specific case, but not another matters in which consideration they took part can be the basis for review on newly discovered facts of court resolution.

Parts 2 of Article 192 of the Economic Procedure Code of the Republic of Tajikistan of circumstance listed in Items 2 and 3 shall be established by the court verdict which took legal effect. In case of impossibility of attraction of persons specified in these Items to criminal liability, in particular in cases of amnesty, death, lapse of time for criminal penalty, the court resolution of economic court can be reviewed only according to the procedure of supervision.

5. Review of court resolution on newly discovered facts in connection with cancellation of court resolution of economic court on another matter, decisions, the court verdict or the resolution of other body (item 4 part 2 of Article 192 of the Economic Procedure Code of the Republic of Tajikistan) can be made only in that case when the repealed acts really were the basis for the reviewed court resolution of economic court.

It must be kept in mind, however, that according to part 2 of Article 11 of the Economic Procedure Code of the Republic of Tajikistan the economic court, having established when considering the case discrepancy of the act of state body, local government body, other body to the law, including its edition with abuse of authority, makes the decision according to the law. Therefore if such act which is been the basis for court resolution of economic court is nullified or repealed afterwards in accordance with the established procedure as not corresponding to the law, this circumstance cannot be considered as opened again as the economic court shall not be guided by this act, and shall make the decision according to the law. Review of court resolution can be in that case made in appeal, cassation or supervising procedure.

When the substandard act of relevant organ, cancellation of this act is put afterwards in basis of the decision, resolution of economic court can be considered as newly discovered fact if the specified act was not subject of consideration of court.

6. The court resolution can be reviewed on newly discovered facts only after its introduction in legal force that is provided by part 1 of Article 192 of the Economic Procedure Code of the Republic of Tajikistan. This rule extends also to court resolutions which according to part 3 of Article 135 of the Economic Procedure Code of the Republic of Tajikistan are performed immediately.

7. In case of receipt in economic court of the statement for review on newly discovered facts of court resolution in cases when case is in court of cassation instance, this court leaves cassation zhadoba without consideration before receipt of results of review on newly discovered facts of court resolution.

8. According to part 1 of Article 193 of the Economic Procedure Code of the Republic of Tajikistan the statement for review on newly discovered facts of court resolution can be submitted only by persons participating in case. Also legal successors of persons participating in case (Article 40 of the Economic Procedure Code of the Republic of Tajikistan) and also persons from whom the economic court collects judicial penalty have the same right (Articles 54, 76 and 206 Economic Procedure Codes of the Republic of Tajikistan). Economic courts on the initiative cannot review the court resolutions adopted by them on newly discovered facts.

9. Return of the statement for review on newly discovered facts of court resolution is made on the bases specified regarding 3rd Article 193 of the Economic Procedure Code of the Republic of Tajikistan, the judge of the relevant court solely.

10. The monthly term established by part 1 of Article 193 of the Economic Procedure Code of the Republic of Tajikistan is procedural and can be recovered by the judge resolving issue of adoption of the statement by the rules established by parts 1-3 of Article 99 of the Economic Procedure Code of the Republic of Tajikistan in the presence of the petition for it of person submitting the application. About refusal in recovery of term can, to be specified in determination about return of the statement.

In case of satisfaction of the petition for recovery of term about it it is specified in the determination which is taken out according to part 1 of article 196 of the Economic Procedure Code of the Republic of Tajikistan about review on newly discovered facts of court resolution.

11. Economic courts in case of adoption of the statement for review on newly discovered facts of court resolution should mean that the statement shall contain the bases confirming availability of newly discovered facts. Necessary proofs, in particular documents from which the opening day of the specified circumstances is established are enclosed to the application. The opening day of such circumstances should be considered day when they became or could become known to the applicant. If the newly discovered fact is connected with sentence, the judgment, the resolution of other body, then the opening day of this circumstance day of the introduction in legal force of sentence, the judgment, entry into force of the resolution opposite accepted by other body for the content to on what the court resolution was based is considered, or day when became the applicant or it could become known of entry into force of sentence, the decision, resolution.

12. According to part 1 of Article 194 of the Economic Procedure Code of the Republic of Tajikistan review on newly discovered facts of court resolution makes that economic court which adopted this act.

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