of January 13, 2014 No. 1-r
On the case of check of constitutionality of normative provision of Item 1 of part 1 of Article 34 of the Code of penal procedure of the Kyrgyz Republic in connection with the address of the citizen Abdykalykov Mamasadyk
The constitutional chamber of the Supreme Court of the Kyrgyz Republic in structure:
the chairman - the judge Kasymaliyev M. Sh., judges - Aydarbekova Ch. A., Bobukeeva M. R., Makeshov J. M., Mamyrov E. T., Oskonbayeva E. Zh., Osmonova Ch. O., Sooronkulova K. S.,
in case of the secretary Tolobaldiyev M. E.,
with participation: the addressing party - Abdykalykov M., the representative Abdykalykov M. by proxy Aytkulova I. N., the parties of the defendant - the representative of Jogorku Kenesh of the Kyrgyz Republic by proxy Sadykov K. R., the other person - the deputy attorney general of the Kyrgyz Republic Usmanova L. Yu.,
Having heard speech of the judge-speaker Makeshov J. M. who was carrying out preparation of case for judicial session and having researched the provided materials, the Constitutional chamber of the Supreme Court of the Kyrgyz Republic,
Lawyer Aytkulov I. N. for the benefit of Abdykalykov M. appealed to May Day district court of the city of Bishkek with the claim about recognition of action of the Attorney-General by SU of GKNB, illegal regarding the order of investigation of criminal case, and also about recognition illegal actions of the investigator of SU of GKNB for collecting of proofs for the specified case.
The resolution of May Day district court of the city of Bishkek of November 23, 2011 the claim of the lawyer Aytkulov I. N. it was satisfied partially and the action of the Attorney-General expressed in the order of investigation of criminal case of SU of GKNB was acknowledged illegal, - is refused other part.
Lawyer Aytkulov I. N., without having agreed with the resolution of May Day district court of the city of Bishkek, appealed it in the Bishkek city court.
The resolution of May Day district court of the city of Bishkek is changed by determination of judicial board of the Bishkek city court of January 25, 2012 also the decision of the Attorney-General on the order of investigation of criminal case of SU of GKNB, and also investigative actions of the investigator of SU of GKNB are recognized as illegal.
The judicial board of the Supreme Court by results of consideration of representation of the Attorney-General the resolution of March 22, 2012 upheld determination of judicial board of the Bishkek city court of January 25, 2012.
Judicial board of the Supreme Court, having considered case on newly discovered facts, the resolution of March 22, 2012 cancelled all taken place judgments on this case.
Abdykalykov M. petition was accepted determination of board of judges of the Constitutional chamber of August 12, 2013 to production.
During judicial session the addressing party on behalf of Abdykalykov M. and his representative Aytkulov I. supported the petition and asked it to satisfy in full.
The constitutional chamber, having discussed arguments of the parties, having listened to opinion of the other person and having researched case papers, came to the following conclusions.
1. According to part 4 of article 19 of the constitutional Law "About the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic" the Constitutional chamber takes out acts in the subject mentioned in the address only concerning that part of regulatory legal act which constitutionality is called in question.
2. In total amount of the powers assigned to prosecutor's office by article 104 of the Constitution, criminal prosecution of officials acts as the separate, independent function isolated from other functions performed by prosecutor's office.
Such constitutional establishment is predetermined by special status of prosecutor's office in the constitutional system of state bodies.
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