NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of January 29, 1999

According to the petition of Kyrgyzenergo joint-stock company for recognition unconstitutional and inappropriate to Item 3 of Article 15, to Item 2 of Article 16, to Item 2 of Article 19, to Item 3 of Article 84, to Item 1 of Article 87 and Item 2 of article 88 of the Constitution of the Kyrgyz Republic of Article 148 of the Arbitral Procedure Code of the Kyrgyz Republic and law-enforcement practice established by the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 5, 1998 on case on the claim of Kyrgyzenergo joint-stock company on recognition illegal and unliable to execution of the resolution of Severnaya customs of February 12, 1998 about collection with combined heat and power plant of Bishkek of penalty in the amount of 778404 US dollars

Constitutional court of the Kyrgyz Republic in structure: Chairman Bayekova Ch. T., vice-chairman Sutalinov A. A., Dryzhak P. N. judges, Kenensariyeva Ampere-second., Osmonova K. E., Satybekova S. S., Togoybayev..., Esenaliyeva K. E. and Esenkanova K. E.,

with participation of the court clerk Aydaraliyeva Zh. R.,

Having heard the report of the judge Dryzhak P. N., speech of representatives: Kyrgyzenergo joint-stock company - Vasilyeva L. A. and Beaver River. I, the Supreme Arbitration Court of the Kyrgyz Republic - Tyurina V. I., General Court of Jogorku Kenesh of the Kyrgyz Respublikiakhmetova N. M. and having researched case papers, the Constitutional court of the Kyrgyz Republic

ESTABLISHED:

The Kyrgyzenergo joint-stock company brings the following arguments into reasons for the petition. According to existing rules of the Customs code Kyrgyzskoy Respubliki, CHPP of the city of Bishkek declared receipt in the first half of the year 1997 of 350 thousand tons of coal. The customs since May, 1997 refused to accept documents on coal customs clearance, and on February 12, 1998 the resolution imposed on combined heat and power plant of the city of Bishkek for customs offense penalty in the amount of 778404 US dollars.

The Kyrgyzenergo joint-stock company addressed with the claim for recognition of the resolution of Severnaya customs of February 12, 1998 illegal and unliable to execution which was satisfied with the decision of Arbitration Court of the city of Bishkek of July 13, 1998. The resolution of October 5, 1998 the judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic cancelled this decision and refused the claim to Kyrgyzenergo joint-stock company. The Kyrgyzenergo joint-stock company considers that Article 148 of the Arbitral Procedure Code of the Kyrgyz Republic by which the judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic was guided contradicts Item 3 of article 84 of the Constitution of the Kyrgyz Republic providing that supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek performs the Supreme Arbitration Court of the Kyrgyz Republic. The judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic consisting of three judges determined by the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic is not the Supreme Arbitration Court of the Kyrgyz Republic and cannot review the decisions, determinations which took legal effect. Review of the decision of Arbitration Court of the city of Bishkek the resolution of judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic of October 5, 1998 violates constitutional rights of Kyrgyzenergo joint-stock company on equality of all before the law and court, the right to property and its protection, and the protection in proper judicial authority guaranteed by Item 3 of Article 15, Item 2 of Article 16, Item 2 of Article 19, Item 3 of Article 84, Item 1 of Article 87 and Item 2 of article 88 of the Constitution of the Kyrgyz Republic.

In judicial session representatives of Kyrgyzenergo joint-stock company Vasilyev L. A. and Bobrova R. Ya., having supported the petition, ask it to satisfy.

Representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I. did not agree with the petition and asks to leave it without satisfaction, and the constitutional legal proceedings - to stop.

The representative of General Court of Jogorku Kenesh of the Kyrgyz Republic Akhmetova N. M. supported the petition for recognition of unconstitutional Article 148 of the Arbitral Procedure Code of the Kyrgyz Republic.

Constitutional court of the Kyrgyz Republic, having discussed arguments of the parties and having researched case papers, considers that the petition of Kyrgyzenergo joint-stock company is subject to satisfaction on the following bases.

From the provided materials it is visible that the Arbitration Court of the city of Bishkek, the decision of July 13, 1998, satisfied the claim of Kyrgyzenergo joint-stock company for recognition illegal and unliable to execution of the resolution of Severnaya customs of February 12, 1998 about collection with combined heat and power plant of Bishkek of penalty in the amount of 778404 US dollars, having recognized it illegal and unliable to execution.

The decision of Arbitration Court of the city of Bishkek of July 13, 1998 was appealed by Severnaya customs according to the procedure of supervision in the Supreme Arbitration Court of the Kyrgyz Republic.

According to the statement of defense - Severnaya customs, the Chairman of the Supreme Arbitration Court of the Kyrgyz Republic, the order of September 1, 1998, created judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic from the chairman Kayypov M. T., Bazarkulov K. I judges. and Dzhumasheva K. O.

The specified judicial structure of supervising instance of the Supreme Arbitration Court of the Kyrgyz Republic, the resolution of October 5, 1998, being guided by Article 148 of the Arbitral Procedure Code of the Kyrgyz Republic, cancelled the decision of Arbitration Court of the city of Bishkek of July 13, 1998 and refused the claim to Kyrgyzenergo joint-stock company.

Judicial protection of the property right of Kyrgyzenergo joint-stock company shall be performed by the judicial bodies provided by the Constitution of the Kyrgyz Republic.

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