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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF TAJIKISTAN

of January 20, 2005

On case "About determination of compliance of Article 181 of the Economic Procedure Code of the Republic of Tajikistan to the articles 17,19 and to part 2 of article 88 of the Constitution of the Republic of Tajikistan"

Constitutional court of the Republic of Tajikistan as a part of the chairman - the Chairman of the Constitutional court of the Republic of Tajikistan Aliyev Z. M., judges: Mustafokulova Sh. M., Nazarov M. N., Mukbilshoyev B. M., Abdulloyev of L. I. Komilova H. R.

with participation of the court session secretary Raufov M. M., the plenipotentiary citizen Kurtbedinov Z. S. - lawyer Munavvarov D. Zh., citizen Aknazarov K. A. - the party according to which petition the constitutional legal proceedings are initiated; plenipotentiaries of Majlisi milli of Majlisi Oli of the Republic of Tajikistan of Makhmudov M. A., Majlisi namoyandagon of Majlisi Oli of the Republic of Tajikistan of Rakhimov M. Z., representative of the President of the Republic of Tajikistan Murodov D. H. - the party concerning which act the constitutional legal proceedings are initiated;

invited - representatives of the Supreme Court of the Republic of Tajikistan - the judge Kodirov A., the Supreme economic court of the Republic of Tajikistan - the first deputy chairman Nosirov N. and the judge Safarova H. A., the Prosecutor General's Office of the Republic of Tajikistan - the head of department of legality of judgments on civil and economic cases Olimov M. and the senior prosecutor of the same Management Hotambekova M. U.,

having heard the report of the judge Komilova H. R., explanations of the parties, having researched the provided and other case papers, determined:

Citizen Kurtbedinov Z. S. appealed to the Constitutional court with the petition in which specified that the decision of Economic court of Sughd area of January 17, 2001 satisfies claims of JSC Saratovneftegeofizika of the city of Kayrakkuma about collection from Tamo of the city of Chkalovsk of 74749 US dollars. In appeal and cassation instances case was not considered. On protest of the deputy attorney general of the Republic of Tajikistan this decision is cancelled by the resolution of Presidium of the Supreme Economic court of the Republic of Tajikistan of September 20, 2001, the claim of JSC Saratovneftegeofizika about bringing of protest according to the procedure of supervision is rejected in connection with the expiration of year of submission of the claim. Citizen Kurtbedinov Z. S. considers that Article 181 of the Economic Procedure Code of the Republic of Tajikistan, granting the right of bringing of protest according to the procedure of supervision only to the Chairman of the Supreme Economic Court and its deputies, the Attorney-General of the Republic of Tajikistan and his deputies, limits the rights of other participants of process. This restriction of the called Article, according to addressing does not correspond to Articles 17, 19 and parts 2 of article 88 of the Constitution of the Republic of Tajikistan as it as the participant of process, is deprived of possibility of protection of the interests in supervision stage. With respect thereto, he asks to determine compliance of the called regulation of the Economic Procedure Code of the Republic of Tajikistan to the Constitution of the Republic of Tajikistan.

Also appealed to the Constitutional court of the Republic of Tajikistan the citizen of the Republic of Tajikistan Aknazarov K. A. - the former head of JSC Pakhtay Proletar and the citizen of Russia Rumyantsev A. V. - the representative International Business of the Ayrengen LTD Company which ask to determine compliance of Article 181 of the Economic Procedure Code of the Republic of Tajikistan to articles 17 and 19 of the Constitution of the Republic of Tajikistan.

In Aknazarov K. A. petition. and Rumyantseva A. V. it is said that the resolution of cassation instance of November 12, 2003 satisfies the claim of the Attorney-General of the Republic of Tajikistan for the benefit of JSC Pakhtay Proletar to the State management committee with state-owned property and International Business of the Ayrengen LTD Company about recognition invalid the purchase and sale agreement of the privatized object. Aknazarov K. A. and Rumyantsev A. V. consider that they as participants of process are deprived of the right of protection of the interests as in Article 181 of the Economic Procedure Code of the Republic of Tajikistan it is specified that only the Chairman of the Supreme economic court of the Republic of Tajikistan, his deputies or the Attorney-General and his deputies have the right of bringing of protest according to the procedure of supervision to the solutions which took legal effect and resolutions of economic courts. Other participants of process are deprived of this right. Therefore the provision of this Article does not correspond to articles 17 and 19 of the Constitution of the Republic of Tajikistan.

According to part 1 of article 19 of the Constitution of the Republic of Tajikistan judicial protection is guaranteed to each citizen. This right is exercised by means of all procedural means providing justice, recovering the violated rights. One of such procedural means is the possibility of correction of the miscarriages of justice made at other stages of legal procedure by review of the court resolutions which took legal effect that is means of recovery of legality and justice established by Chapter HHP of the Economic Procedure Code of the Republic of Tajikistan.

According to Article 181 of the Economic Procedure Code of the Republic of Tajikistan only the Chairman of the Supreme economic court of the Republic of Tajikistan and his deputies, the Attorney-General of the Republic of Tajikistan and his deputies have the right of bringing of protest to the decisions which took legal effect and resolutions of economic courts. The parties and other participants of process have no right of bringing of the claim according to the procedure of supervision. They within year after the introduction in legal force of decisions and resolutions of economic courts can address the Chairman of the Supreme economic court, the Attorney-General and their deputies for question of bringing of protest according to the procedure of supervision. Bringing or not bringing of protest according to the procedure of supervision depends on will and desire of these officials.

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