NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

December 27, 1996

Constitutional court of the Kyrgyz Republic as a part of the presiding Bayekova Ch. T., vice-chairman Sutalinov A. A., Dryzhak P. N. judges, Kenensariyeva Ampere-second., Osmonova K. E., Satybekova S. S., Togoybayev Zh. Zh., Esenaliyeva K. E. and Esenkanova K. E.,

with participation of the court session secretary Tungatarov B. O., the translator Akmataliyeva R. M.,

parties: the representative of the Attorney-General of the Kyrgyz Republic Bopoyev Nazarkul Bopoyevich who is acting on the basis of the power of attorney No. 11-7 of October 8, 1996; Ergashev Rakhim Salizhanovich and his lawyer Chernoknizhnoy Raisa Antonovna who is acting on the basis of the orders orders No. 2324 of 24.12.1996 issued by May Day legal advice bureau of Bishkek

Having heard the report of the judge Togoybayev Zh. Zh., explanations of the representative Attorney-General Bopoyev N. B., Ergashev R. S. and his lawyer Chernoknizhna R. A., having researched collected materials, the Constitutional court of the Kyrgyz Republic

ESTABLISHED:

Attorney-General of the Kyrgyz Republic Sharshenaliyev A. Sh. On September 9, 1996 appealed to the Constitutional court of the Kyrgyz Republic with idea of consent on criminal prosecution of the judge of the Osh city court Ergashev Rakhim Salizhanovich. In representation it is specified that the judge of the Osh city court Ergashev R. S. for mitigation of punishment to Satybaldiyev Israil brought to trial as regards 1 article 215 UK of the Kyrgyz Republic whose case was at the judge Ergashev R. S. extorted 500 som from his uncle Umarov D. According to Umarov D. statement of August 14, 1995 the judge Ergashev R. S. was detained by the staff of law-enforcement bodies in Agartuu cafe on August 15, 1995 15 hours 30 min. 500 som of money which was transferred in quality of bribe by Umarov D. shortly before this detention were found and withdrawn from it.

On this fact on August 17, 1995 Attorney-General Sharshenaliyev A. Sh. initiated in the relation of the judge Ergashev R. S. criminal case by part 3, of article 180 UK of the Kyrgyz Republic.

In judicial session the representative of the Attorney-General of the Kyrgyz Republic Bopoyev N. B., relying on case papers, having supported representation of the Attorney-General of the Kyrgyz Republic Sharshenaliyev A. Sh., asks to agree to criminal prosecution of the judge of the Osh city court Ergashev Rakhim Salizhanovich.

Ergashev R. S. and his lawyer Chernoknizhnaya of R. A., denying receipt of 500 som by Ergashev R. S. by racketing from Umarov D., ask not to agree to attraction it to criminal liability.

Constitutional court of the Kyrgyz Republic, having researched the materials collected by representation consideration, having listened to explanations and final words of the parties, finds it possible to deprive of Ergashev R. S. of immunity, stipulated in Item 4 articles 79 of the Constitution of the Kyrgyz Republic and to satisfy idea of the Attorney-General of the Kyrgyz Republic of consent on attraction it to criminal liability.

From the criminal case file it is visible that on August 14, 1995 were processed by special pencil for transfer to the judge Ergashev R. S. of 500 som, brought by Umarov D. and for implementation of sound recording of conversation on bribe the tape recorder was transferred to it.

On August 15, 1995 in corporate shop "Agartuu" in the presence of witnesses the judge Ergashev R. S. was detained by the staff of law-enforcement bodies and from the right pocket of his trousers the specified 500 som were withdrawn and he explained this amount as own money intended for cement acquisition. The staff of law-enforcement bodies in the presence of witnesses constituted the protocol and the video about withdrawal at Ergashev R. S. of 500 som is performed.

The resolution of August 17, 1995 the Attorney-General of the Kyrgyz Republic concerning the judge of the Osh city court Ergashev Rakhim Salizhanovich brought criminal case as regards 3rd article 180 UK of the Kyrgyz Republic and charged its investigation to investigative department of investigation department of the Ministry of Internal Affairs of the Kyrgyz Republic of the Osh and Zhalal-Abadsky regions.

On August 17, 1995 Ergashev R. S. is interrogated by the investigator as the suspect, besides the injured Umarov D. and witnesses is interrogated, and confrontations are carried out between them.

The specified legal proceedings confirm the fact of detection and withdrawal at the judge Ergashev R. S. of 500 som handed to it as bribe.

In defiance of article 97 Code of Criminal Procedure of the Kyrgyz Republic the staff of law-enforcement bodies, having received Umarov D. application for racketing the judge of the Osh city court Ergashev R. S. of money, independently began to perform legal proceedings instead of transferring this statement on jurisdiction - prosecutor's office of the Kyrgyz Republic.

After acceptance of necessary operational search measures for detection of essential elements of offense and to detention of person which made it the staff of law-enforcement bodies in compliance, with article 105 Code of Criminal Procedure of the Kyrgyz Republic shall notify on it the prosecutor in writing. This requirement of the law was not fulfilled by them, and Ergashev R. S. detention from 15 to 23 o'clock on August 15, 1995 documentary was not drawn up and remained out of public prosecutor's supervision.

In defiance of requirements of article 115 Code of Criminal Procedure of the Kyrgyz Republic the Attorney-General of the Kyrgyz Republic, having brought criminal case, did not accept it to the production, bezmotivno again charged pretrial investigation to law-enforcement bodies, namely investigative department of investigation department of the Ministry of Internal Affairs of the Kyrgyz Republic of the Osh and Zhalal-Abadsky regions.

From the criminal case file it is visible that the last investigative action - the resolution on familiarizing of the physical evidence with case is executed on September 22, 1995, and since September 28, 1995, criminal case is over a year in central office of Prosecutor's office of the Kyrgyz Republic, despite it, in defiance of requirements of article 124 Code of Criminal Procedure of the Kyrgyz Republic the term of pretrial investigation is extended by nobody and case is almost left without any movement.

The above-stated violations of the law demonstrate that prosecutor's office of the Kyrgyz Republic completely ignoring legal concerns did not take measures to ensuring the corresponding public prosecutor's supervision for case.

1. To satisfy idea of the Attorney-General of the Kyrgyz Republic of consent on criminal prosecution of the judge of the Osh city court Ergashev Rakhim Salizhanovich.

2. Oblige the Attorney-General of the Kyrgyz Republic to eliminate the violations of the law specified in the decision.

3. The final decision, appeals is not subject and it is obligatory to execution by all bodies, officials and citizens.

4. The decision to publish in newspapers: "Word of Kyrgyzstan", "Erkin of limited liability partnership", "Our newspaper", "Kyrgyz to tuus".

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