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DECISION OF THE CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF THE KYRGYZ REPUBLIC

of July 9, 2014

On the case of check of constitutionality of part 3 of Article 184 of the Code of penal procedure of the Kyrgyz Republic in connection with the address of the citizen Toktakunov Nurbek Akbarovich

The constitutional chamber of the Supreme Court of the Kyrgyz Republic in structure:

the chairman - the judge Kasymaliyev M. Sh., Aydarbekova Ch. A. judges., Bobukeeva M. R., Makeshov J. M., Mamyrov E. T., Narynbekova A. O., Oskonbayeva E. Zh., Osmonova Ch. O., Sooronkulova K. S.,

in case of the secretary Tolobaldiyev M. E.,

with participation: the addressing party - the citizen Toktakunov N. A.; Dzhorupbekova A. A. defendant party., the Kyrgyz Republic representing the interests of Jogorku Kenesh by proxy; the other person - Shukurbekova A. Sh., representative of the Prosecutor General's Office of the Kyrgyz Republic by proxy,

being guided by parts 1 and 6 of article 97 of the Constitution of the Kyrgyz Republic (further - the Constitution), Articles 1, of 4, of 18, of 19, of 24, 37 and 42 constitutional Laws of the Kyrgyz Republic "About the Constitutional chamber of the Supreme Court of the Kyrgyz Republic" (further - the constitutional Law "About the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic"), considered in proceeding in open court case on check of constitutionality of part 3 of Article 184 of the Code of penal procedure of the Kyrgyz Republic (further - the Code of Criminal Procedure) providing carrying out search and dredging including in the dwelling, with participation of witnesses under the motivated resolution of the investigator from the sanction of the prosecutor.

Reason for consideration of the case was the petition of the citizen Toktakunov N. A.

The basis to consideration of this case was the found uncertainty in question of whether there corresponds to the Constitution part 3 of article 184 Code of Criminal Procedure.

Having heard information of the judge-speaker Mamyrov E. T., the case which was carrying out preparation for judicial session, and having researched the provided materials, the Constitutional chamber of the Supreme Court of the Kyrgyz Republic

established:

In the Constitutional chamber of the Supreme Court of the Kyrgyz Republic (further - the Constitutional chamber) the petition of the citizen Toktakunov N. A. arrived on February 20, 2014. about recognition of part 3 of article 184 Code of Criminal Procedure of the contradicting part 2 of article 30 of the Constitution.

Toktakunov N. A. notes that it is right everyone on inviolability of home and other objects which are at it in property or other right production of search, dredging, survey and other actions, according to part 2 of the specified article of the Constitution is guaranteed by part 1 of article 30 of the Constitution, and, are allowed only based on court resolution.

However part 3 of article 184 Code of Criminal Procedure provides extrajudicial procedure for production of search and dredging which contradicts part 2 of article 30 of the Constitution.

The petition of the applicant was accepted determination of board of judges of the Constitutional chamber of March 17, 2014 to production.

In judicial session Toktakunov N. A. supported the petition and asked it to satisfy.

Representative of Jogorku Kenesh of the Kyrgyz Republic Dzhorupbekova A. A. agreed with arguments of the addressing party and recognized that the disputed norm of the Criminal Procedure Code does not correspond to the Constitution.

The constitutional chamber, having discussed arguments of the parties, having researched case papers, having listened to explanation of the other person, 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.

Thus, subject of consideration of the Constitutional chamber of this case is part 3 of article 184 Code of Criminal Procedure of the following content:

"Article 184. Basis and procedure for production of search and dredging

(3) the Search and dredging, and also search and dredging in the dwelling are made with participation of witnesses under the motivated resolution of the investigator from the sanction of the prosecutor.".

The code of penal procedure of the Kyrgyz Republic of June 30, 1999 is accepted No. 62 according to the procedure, established by the legislation, No. 63, is enacted by the Law of the Kyrgyz Republic "About enforcement of the Code of penal procedure of the Kyrgyz Republic" of June 30, 1999 published in the Erkin Too newspaper of July 21, 1999 No. No. 59-60-61-62, is entered in the State register of regulatory legal acts of the Kyrgyz Republic and is acting.

2. According to the Constitution of human right and freedom are the supreme value. They act directly, determine sense and content of activities of the legislative, executive authority and local government bodies (part of 1 Article 16).

Recognition by the Constitution of the exclusive status of the personality irrespective of floor, race, nationality, ethnic origin, the relation to religion, age, educations, property or other status, political or other convictions, and also other circumstances are correlated with regulations of the international legal acts (The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention of the Commonwealth of Independent States on the rights and fundamental freedoms of the person) according to which the conventional standards of human measurement shall be observed and provided in each state.

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