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NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

May 14, 2004

city of Bishkek

According to petitions of Poppy and To limited liability company and Ay-Mar limited liability company for recognition unconstitutional and contradicting Item 3 of article 83 of the Constitution of the Kyrgyz Republic of Item 2 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic

Constitutional court of the Kyrgyz Republic in structure: Chairman Bayekova Ch. T., vice-chairman Sutalinov A. A., P.N., Kayypov M. T. sudeydryzhaka., Kenensariyeva A. S., Togoybayeva Zh. Zh., Esenaliyeva K. E. and Esenkanova K. E.,

Having heard the report of the judge Sutalinov A. A., speeches of the representative of Poppy and To limited liability company Solomakh V. M., director of Ay-Mar limited liability company Isaev E. M. and his representatives Smirnov V. G. and Arapova A. V., the representative of General Court of Jogorku Kenesh of the Kyrgyz Republic Akchalov R. Sh., having researched case papers, the Constitutional court of the Kyrgyz Republic

ESTABLISHED:

In the Constitutional court of the Kyrgyz Republic on March 9 and on April 7, 2004 petitions of Poppy and To limited liability company and Ay-Mar limited liability company for recognition unconstitutional and contradicting Item 3 of article 83 of the Constitution of the Kyrgyz Republic of Item 2 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic arrived.

The following arguments are given to reasons for petitions.

Judicial board on economic cases of the Supreme Court of the Kyrgyz Republic, the resolution of November 18, 2003, being guided by Article 13, Item 1 of article 18 of the Law of the Kyrgyz Republic "About the Supreme Court of the Kyrgyz Republic and local courts" and Articles 154, of 156, of 157, Item 2 of Article 158, Articles 159, of 161, 162 Arbitral Procedure Codes of the Kyrgyz Republic cancelled the decision of Leninsky district court Bishkek of May 19, 2003 and the resolution of appellate instance of the Bishkek city court of September 15, 2003 on case on the claim of Poppy and To limited liability company to the Bishkek municipal government of land management and registration of the rights to real estate and Zhol limited liability company about application of effects of invalidity of the insignificant transaction and directed case to Leninsky district court Bishkek on new trial.

The judicial board on economic cases of the Supreme Court of the Kyrgyz Republic, the resolution of February 18, 2004 cancelled the decision of the Karakol city court of September 9, 2003 and the resolution of judicial board on economic cases of the Issyk kul regional court of November 19, 2003 on case on the claim of Ay-Mar limited liability company to the Customs post of the free economic zone Karakol of the Issyk kul customs about recognition invalid the substandard act - the decision No. 9/31 of August 8, 2003 and sent case for new trial in Trial Court.

Item 2 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic by which the Supreme Court of the Kyrgyz Republic was guided contradicts Item 3 of article 83 of the Constitution of the Kyrgyz Republic which provides that powers of the Supreme Court of the Kyrgyz Republic on leaving in force of acts of local courts, their change or adoption of the new decision on case are established by the law and does not provide powers of the Supreme Court of the Kyrgyz Republic on cancellation of court resolutions of local courts with the direction of case on new trial.

According to Item 1 of article 12 of the Constitution of the Kyrgyz Republic the Constitution has the highest legal force and according to Item 2 of the same Article the laws and other regulatory legal acts are adopted on the basis of the Constitution. Therefore, the laws contradicting the existing Constitution are unconstitutional irrespective of time of their acceptance.

In defiance of the specified requirements the Supreme Court of the Kyrgyz Republic was guided by unconstitutional regulation - Item 2 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic.

In judicial session founder of Poppy and To limited liability company Toktakunova K. M. and her representative of Solomakh V. N., director of Ay-Mar limited liability company Isaev E. M. and his representatives Smirnov V. G. and Arapova A. V., having supported petitions, ask them to satisfy.

The representative of General Court of Jogorku Kenesh of the Kyrgyz Republic Akchalov R. Sh. agreed with arguments of petitions and asks them to satisfy.

Constitutional court of the Kyrgyz Republic, having discussed arguments of the parties and having researched case papers, considers petitions subject to satisfaction on the following bases.

Having considered case according to the procedure of supervision on the claim of Zhol limited liability company, the judicial board on economic cases of the Supreme Court of the Kyrgyz Republic, the resolution of November 18, 2003 cancelled the decision of Leninsky district court of the city of Bishkek of May 19, 2003 and the resolution of appellate instance of the Bishkek city court of September 15, 2003 on case on the claim of Poppy and To limited liability company to Zhol limited liability company and the Bishkek municipal government of land management and registration of the rights to real estate about application of effects of invalidity of the insignificant transaction and sent case for new trial in Leninsky district court of the city of Bishkek.

Judicial board on economic cases of the Supreme Court of the Kyrgyz Republic, having considered case according to the procedure of supervision on the claim of the Customs post of the free economic zone Karakol, the resolution of February 18, 2004 cancelled the decision of the Karakol city court of September 9, 2003 and the resolution of judicial board on economic cases of the Issyk kul regional court of November 19, 2003 on case on the claim of Ay-Mar limited liability company to the Customs post of the free economic zone Karakol of the Issyk kul customs about recognition invalid the substandard act - the decision No. 9/31 of August 8, 2003 with the direction of case on new trial in Trial Court.

In case of adoption of the called resolutions, the judicial board on economic cases of the Supreme Court of the Kyrgyz Republic, along with other Articles of the Arbitral Procedure Code of the Kyrgyz Republic, was guided by Item 2 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic which grants to Supervisory Court the right to send case for new trial with cancellation of the decision, resolutions of Arbitration Court completely or in part.

According to Item 3 of article 83 of the Constitution of the Kyrgyz Republic the Supreme Court of the Kyrgyz Republic exercises supervision of judicial activities of local courts in the form of review of court resolutions according to claims of participants of legal procedure. Powers of the Supreme Court of the Kyrgyz Republic on leaving in force of acts of local courts, their change or adoption of the new decision on case are established by the law.

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