NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of June 25, 1997

On idea of the deputy of General Court of Jogorku Kenesh of the Kyrgyz Republic Musulmankulova Oktyabrya Kydyrmayevicha of recognition of part 3 of Article 324 and part 6 of Article 331 of the Code of civil procedure of the Kyrgyz Republic unconstitutional and inappropriate to item 4 of Article 82, to Item 2 of Article 83, to Item 2 of Article 88 and article 90 of the Constitution of the Kyrgyz Republic and about cancellation of the resolution of Presidium of the Supreme Court of the Kyrgyz Republic of March 17, 1997 on civil case in Dunganov E. A. claim. to the Ministry of Agriculture and Food of the Kyrgyz Republic about recovery at work, and also about recognition unconstitutional law-enforcement practice of Presidium of the Supreme Court of the Kyrgyz Republic by consideration of this civil case

Constitutional court of the Kyrgyz Republic as a part of the presiding Bayekova Ch. T., vice-chairman Sutalinov A. A., judges: Dryzhaka P. N., 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 Kazakbayev B. M.,

parties: representative of the deputy of General Court of Jogorku Kenesh of the Kyrgyz Republic Musulmankulov O. K - Boyarinova Valentina Vasilyevna who is acting on the basis of the power of attorney of May 8, 1997, the signed deputy of General Court of Jogorku Kenesh of the Kyrgyz Republic Musulmankulov O. K. the representative of General Court of Jogorku Kenesh Kyrgyz Respublikichebotova Natalya Viktorovna who is acting on the basis of the power of attorney of May 21, 1997, signed Toraga of General Court of Jogorku Kenesh of the Kyrgyz Republic, the vice-chairman of the Supreme Court of the Kyrgyz Republic of Aknazarovy Kalima Korchubekovna who is acting on the basis of the power of attorney of May 21, 1997, the signed Chairman of the Supreme Court of the Kyrgyz Republic, the representative of Meeting of national representatives of Jogorku Kenesh of the Kyrgyz Republic - the deputy Kazakbayev Zhalgap Iymanbekovich who is acting on the basis of the power of attorney of June 23, 1997, signed Toraga of the Meeting of national representatives of Jogorku Kenesh of the Kyrgyz Republic and

Having heard the report of the judge Esenaliyev K. E., speeches of the representative of the deputy of General Court of Jogorku Kenesh of the Kyrgyz Republic Boyarinova V. V., representative of General Court of Jogorku Kenesh of the Kyrgyz Republic Chebotova N. V., representative of the Supreme Court of the Kyrgyz Republic Aknazarova K. K. and representative of Meeting of national representatives of Jogorku Kenesh of the Kyrgyz Republic of the deputy Kazakbayev Zh. I., having researched the provided materials, the Constitutional court of the Kyrgyz Republic

established:

The deputy of General Court of Jogorku Kenesh of the Kyrgyz Republic Musulmankulov O. K. with idea of recognition unconstitutional parts 3 of Article 324 and part 6 of Article 331 of the Code of civil procedure of the Kyrgyz Republic as inappropriate to item 4 of Article 82, to Item 2 of Article 83, to Item 2 of Article 88 and article 90 of the Constitution of the Kyrgyz Republic, and about cancellation of the resolution of Presidium of the Supreme Court of the Kyrgyz Republic of March 17, 1997 on civil case in Dunganov E. A. claim on May 13, 1997 appealed to the Constitutional court of the Kyrgyz Republic. about recovery at work.

During preparation of case for consideration the deputy of General Court of Jogorku Kenesh of the Kyrgyz Republic Musulmankulov O. K. added the representation with the new requirement about recognition unconstitutional law-enforcement practice of the Supreme Court of the Kyrgyz Republic by consideration of legal cases according to the procedure of supervision.

The deputy Musulmankulov O. K. brings the following arguments into reasons for the requirements.

Bishkek of April 18, 1996 is left by the decision of May Day district court without satisfaction Dunganov E. A. claim. to the Ministry of Agriculture and Food of the Kyrgyz Republic about its recovery at work. Judicial board on civil cases of the Bishkek city court, having considered case on the writ of appeal of Dunganov E. A., determination of-29 May, 1996 left the decision of May Day district court without change.

The chairman of the Supreme Court of the Kyrgyz Republic, having supported Dunganov E. A. complaint., being guided by Article 323 of the Code of civil procedure of the Kyrgyz Republic, brought protest according to the procedure of supervision in judicial board on civil cases of the Supreme Court of the Kyrgyz Republic which being guided by Item 5 of Article 333 of the Code of civil procedure of the Kyrgyz Republic the determination of August 14, 1996, not canceling the judgment which is earlier made on case, made the new decision on Dunganov E. A. recovery. to former position - the Bishkek Gosvettsentr's chief.

In representation it is also specified that Article 323 of the Code of civil procedure of the Kyrgyz Republic regulating the procedure of representation of cases in Presidium was acknowledged unconstitutional and its action is cancelled, the new law on the matter is not adopted, and the mechanism of implementation of supervision of judicial activities of subordinate courts is not determined yet. Therefore former supervising instances, including Presidium of the Supreme Court of the Kyrgyz Republic cannot function before entering of corresponding changes into the Code of civil procedure of the Kyrgyz Republic.

After recognition of unconstitutional Article 323 of the Code of civil procedure by legislature the mechanism of implementation of supervision of judicial activities of subordinate courts is not determined. The Supreme Court should address to Jogorku Kenesh of the Kyrgyz Republic with the legislative initiative concerning determination of the mechanism of implementation of supervision of judicial activities of subordinate courts.

The Supreme Court, instead entered unforeseen the law supervision procedure. In one cases cases are considered according to the procedure of supervision directly according to the claim of citizens, in other cases the claim is rejected without consideration of the case.

Such law-enforcement practice of the Supreme Court of the Kyrgyz Republic breaks the principle of equality of all before the law and court and is unconstitutional and does not correspond to item 4 of Article 82 and Item 3 of article 15 of the Constitution of the Kyrgyz Republic.

Besides, part 6 of Article 331 of the Code of civil procedure violates the rights of citizens to protection and contradicts article 88 of the Constitution of the Kyrgyz Republic. Due to stated asks to recognize unconstitutional part 3 of Article 324 and part 6 of Article 331 of the Code of civil procedure of the Kyrgyz Republic.

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