NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

October 14, 1997

According to petitions of Opereyting Company Umayra and Kumtor Limited liability company for recognition of Article 79 unconstitutional and inappropriate to Item 3 and Item 3 of article 84 of the Constitution of the Kyrgyz Republic of Chapter 23 "Production in cassation instance" 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., Dryzhak P. N. judges, Kenensariyeva Ampere-second., Osmonova K. E., Togoybayeva Zh. Zh., Esenaliyeva K. E. and Esenkanova K. E.,

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

parties: the director of OSOO "Umayra" Kadyraliyeva Dinara Madanbekovna and her lawyer Skripkina Galina Anatolyevna acting according to the order of the order No. 998 of October 10, 1997, issued by October district legal advice bureau of Bishkek

Having heard the report of the judge Esenkanov K. E., speeches of the director of OSOO "Umayra" Kadyraliyeva D. M. and her lawyer Skripkina G. A., representative Kumtor Opereyting Company of Aldashev N. B., representatives of the Supreme Arbitration Court of the Kyrgyz Republic of Tyurin V. I. and Medetbekova Ch. A., the representative of General Court of Jogorku Kenesh of the Kyrgyz Republic Chebotova N. V., having studied case papers, the Constitutional court of the Kyrgyz Republic

ESTABLISHED:

In the Constitutional court of the Kyrgyz Republic the petition of OSOO "Umayra" for recognition of article 84 of the Constitution of the Kyrgyz Republic of Chapter 23 "Production in cassation instance" unconstitutional and inappropriate to Item 3 of the Arbitral Procedure Code of the Kyrgyz Republic and the resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of December 11, 1996 in the claim of JSC-Kuu to OSOO "Umayra" on July 29, 1997 arrived. In reasons for the petition of OSOO "Umayra" refers to what was refused to Ak-Kuu Joint-stock company by the decision of the Supreme Arbitration Court of the Kyrgyz Republic of October 24, 1996 the claim for eviction from the non-residential premise, at the address: Bishkek, Prospekt Molodaya Gvardiya - 41. The specified decision was cancelled by the resolution of cassation board of the Supreme Arbitration Court of the Kyrgyz Republic of December 11, 1996 and the claim of JSC-Kuu was satisfied. The Supreme Arbitration Court of the Kyrgyz Republic accepted this case to production in cassation instance, without having considered it in appellate instance and resolved issue of legality of own decision made on the first instance in defiance of Articles 122 and 146 of the Arbitral Procedure Code of the Kyrgyz Republic, Item 3 of article 84 of the Constitution of the Kyrgyz Republic according to which the Supreme Arbitration Court of the Kyrgyz Republic is granted the right of implementation only of supervising functions behind judicial activities of Arbitration Courts of areas and the city of Bishkek, and she has no right to consider cases in cassation procedure.

During preparation of cases for judicial session according to Item 7 of part 5 of article 22 of the Law "About the Constitutional Legal Proceedings of the Kyrgyz Republic" the specified petitions are united in one legal proceedings as their requirements are connected among themselves.

In judicial session director of OSOO "Umayra" Kadyraliyeva D. M. and her lawyer Skripkina G. A., the representative Kumtor by Opereyting Company Aldashev N. B., the representative of General Court of Jogorku Kenesh of the Kyrgyz Republic Chebotova N. V., having completely supported petitions, ask to meet their requirements as constitutional rights are violated: on protection and on property of the legal entities who appealed to the Constitutional court of the Kyrgyz Republic.

Representatives of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I. and Medetbekova Ch. A., objecting to the requirements declared in petitions ask the constitutional legal proceedings to stop behind not jurisdiction them to the Constitutional court of the Kyrgyz Republic.

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

Apparently from the provided materials, by the decision of the Supreme Arbitration Court of the Kyrgyz Republic of October 24, 1996 the claim to Ak-Kuu Joint-stock company to Umayra Limited liability company about eviction from the non-residential premise it is refused.

The resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of December 11, 1996 according to the claim of JSC-Kuu the specified judgment cancels and makes the new decision on satisfaction of claims of JSC-Kuu with collection from the account of operation of OSOO "Umayra" for benefit of JSC-Kuu of the national duty in the amount of 1105 som with issue of writ of execution.

In this case review of the Kyrgyz Republic by the Supreme Arbitration Court of own decision made on the first instance takes place than violation of requirements of Item 3 of article 84 of the Constitution of the Kyrgyz Republic which granted to the Supreme Arbitration Court of the Kyrgyz Republic the right to exercise supervision only of judicial activities of Arbitration Courts of areas and the city of Bishkek, but not behind the decisions made by him on the first instance is allowed. Except the Supreme Arbitration Court of the Kyrgyz Republic no other instance can perform the specified constitutional powers.

Ignoring this regulation of the Constitution, Chapter 23 "Production in cassation instance" of the Arbitral Procedure Code of the Kyrgyz Republic provided to cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic, the right of implementation of supervision of decisions of Arbitration Courts of areas and the city of Bishkek, than nullified role of the Supreme Arbitration Court of the Kyrgyz Republic in implementation of supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek.

The resolution of cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of July 17, 1997 the decision of Arbitration Court of the city of Bishkek of May 28, 1997 on refusal in the claim of JSC ASOM to Kumtor by Opereyting Company about collection of the amount of 2170255 som cancels partially and makes the new decision on collection of the amount from the account of operation Kumtor by Opereyting Company for benefit of JSC ASOM of the amount of 1860955 som of principal debt and the national duty in the amount 70828, of the 5th som, with issue of writ of execution.

In this case review by cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic of the decision of Arbitration Court of the city of Bishkek, with the same violation of Item 3 of article 84 of the Constitution of the Kyrgyz Republic takes place.

The specified decisions are made by cassation instance of the Supreme Arbitration Court of the Kyrgyz Republic which structure on each case was created individually: in the claim of JSC-Kuu to OSOO "Umayra" about eviction - the chairman of the Supreme Arbitration Court of the Kyrgyz Republic, and in the claim of JSC ASOM to Kumtor Opereyting Company about collection of the amount of 2170255 som - the vice-chairman of the Supreme Arbitration Court of the Kyrgyz Republic.

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