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NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of March 3, 1999

According to the petition of public joint stock company Russian-Kyrgyz Amanbank about recognition of Article unconstitutional and inappropriate to Item 2 7, to the paragraph of the 13th Item 2 of Article 16, to Items 1 and 2 of Article 19, to Articles 38 and 79, to Item 3 of Article 82, to Items 2 and 3 of Article 84 and article 88 of the Constitution of the Kyrgyz Republic of the law-enforcement practice established by determination of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 3, 1998 about review on newly discovered facts of resolutions of June 25, 1996 of cassation instance and of October 31, 1996 Presidium of the Supreme Arbitration Court of the Kyrgyz Republic on case on the claim of Almaz joint-stock company to public joint stock company Russian-Kyrgyz Amanbank (earlier Ak-Niyet joint stock bank) about collection of the amount of 11201000 som

Constitutional court of the Kyrgyz Republic in structure: Chairman Bayekova Ch. T., vice-chairman Sutalinov A. A., P.N., Kenensariyev A. S. sudeydryzhaka., Osmonova K. E., Satybekova S. S., Togoybayev Zh. Zh. and Esenaliyeva K. E.,

with participation of the court clerk Dyushenaliyeva E. S.,

Having heard the report of the judge Dryzhak P. N., speech of the chairman of the board of public joint stock company Russian-Kyrgyz Amanbank Kudabayeva Sh. I. and representative of this joint-stock company Yeliseyev A. A., representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I., having researched case papers, the Constitutional court of the Kyrgyz Republic

Established:

In reasons for the petition public joint stock company Russian-Kyrgyz Amanbank refers to the fact that determination of July 3, 1998 judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic (in structure: chairman Kayypov M. T., judges - Bazarkulova K. K. and Dzhumashova K. O.), having granted the application of Almaz joint-stock company for review on newly discovered facts of resolutions of June 25, 1996 of cassation instance and of October 31, 1996 Presidium of the Supreme Arbitration Court of the Kyrgyz Republic on case on the claim of Almaz joint-stock company to Ak-Niyet joint stock bank about collection of the amount of 11201000 som, established the law-enforcement practice contradicting the Constitution of the Kyrgyz Republic. The judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic counted as newly discovered fact solutions of the Constitutional court of the Kyrgyz Republic of June 11 and on December 14, 1997 about recognition unconstitutional Chapter 23 "Production in cassation instance" both Articles 162, and 166 Arbitral Procedure Codes of the Kyrgyz Republic. The judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic was guided by Article 164 of the Arbitral Procedure Code of the Kyrgyz Republic which determined the list of the bases for review of court resolutions by newly discovered facts in which the solution of the Constitutional court of the Kyrgyz Republic is not included.

Judicial protection of constitutional right on property of public joint stock company Russian-Kyrgyz Amanbank stipulated in Item 2 Articles 16, Items 1 and 2 of Article 19, was broken by articles 38 and 88 of the Constitution of the Kyrgyz Republic as unconstitutional judicial body is the judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic which performed review on newly discovered facts taken place earlier on case the resolution of June 25, 1996 of cassation instance and of October 31, 1996 Presidium of the Supreme Arbitration Court of the Kyrgyz Republic.

In judicial session chairman of the board of public joint stock company Russian-Kyrgyz Amanbank Kudabayeva Sh. I. and representative of this society Yeliseyev A. A., having supported the petition, asked it to satisfy.

Representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I., without having agreed with the petition, asked to refuse its satisfaction, and to stop the constitutional legal proceedings.

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

From case papers it is visible that the decision of the judge (Dvornitsyn V. S.) of the Supreme Arbitration Court of the Kyrgyz Republic of June 29, 1995 from the settlement account of republican joint-stock commercial bank "Ak-Niyet" for benefit of Almaz joint-stock company collects the amount of 11201000 som of principal debt, 56000 som of the national duty.

The resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of June 25, 1996 (structure - Kovalenko G. G., Alpiyev A. N., Bekeshov T. R.) the specified judgment is changed, the amount of 4140778 som 42 tyyyn is collected from Amanbank commercial bank (the former joint stock bank "Ak-Niyet") for benefit of Almaz joint-stock company, other part of the claim it is refused.

On representation of the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic, the Presidium of the Supreme Arbitration Court of the Kyrgyz Republic created by its order No. 16/72 of October 28, 1996 (in structure: chairman Narymbayev D. I., judges: Luchkova G. A., Temirbekova L. and Bekbolotov A.), the resolution of October 31, 1996 cancelled the decision of the judge of the Supreme Arbitration Court of the Kyrgyz Republic of June 29, 1995 and the resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of June 25, 1996 on case on the claim of Almaz joint-stock company to commercial society "Amanbank" about collection of the amount of 11201000 som, refused the claim of Almaz joint-stock company.

After two years, determination of July 3, 1998 the judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic created on June 19, 1998 by Kayypovy M. T., the acting as the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic (as a part of the vice-chairman of the Supreme Arbitration Court of the Kyrgyz Republic Kayypov M. T., K.K. and Dzhumashev K. O. sudeybazarkulova.) granted the application of Almaz joint-stock company for review on newly discovered facts of resolutions of June 25, 1996 of cassation instance and of October 31, 1996 Presidium of the Supreme Arbitration Court of the Kyrgyz Republic on case, cancelled these court decrees and appointed its consideration according to the procedure of supervision to August 13, 1998 according to claims of public joint stock company Russian-Kyrgyz Amanbank of July 27, 1995 and of July 22, 1996.

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