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

of March 4, 2015

On the case of check of constitutionality of Article 325 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., Mamyrov E. T., Narynbekova A. O., Oskonbayeva E. Zh., Osmonova Ch. O., Sooronkulova K. S.,

in case of Iliyazova N. A. secretary.,

with participation:

- the addressing party - Toktakunova N. A.,

- the defendant party - Yrysbekova T. Y., the Jogorku Kenesh of the Kyrgyz Republic representing the interests by proxy,

- other persons - representatives of the Supreme Court of the Kyrgyz Republic of Bokosheva Zh. S. and Prosecutor General's Office of the Kyrgyz Republic of Shukurbekov A. Sh., by proxy

being guided by parts 1, of 6, of article 97 of the Constitution of the Kyrgyz Republic, Articles 4, of 18, of 19, of 37, 42 constitutional Laws of the Kyrgyz Republic "About the Constitutional chamber of the Supreme Court of the Kyrgyz Republic", considered case on check of constitutionality of Article 325 of the Code of penal procedure of the Kyrgyz Republic in proceeding in open court.

Reason for consideration of this 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 of the Kyrgyz Republic Article 325 of the Code of penal procedure of the Kyrgyz Republic providing that in case of the defendant's justification, and also in case of the resolution of sentence without assignment of punishment or with release from serving sentence, either condemnation it is conditional, or condemnation to the punishment which is not connected with imprisonment, or the termination of criminal case by production the defendant who is in custody is subject to immediate release after the introduction of sentence in legal force.

Having heard information of the judge-speaker Narynbekova A. O., 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

established:

The citizen Toktakunov N. A. addressed on August 25, 2014 to the Constitutional chamber of the Supreme Court of the Kyrgyz Republic (further - the Constitutional chamber). about recognition of Article 325 of the Code of penal procedure of the Kyrgyz Republic of the contradicting part of 1 Article 24, to parts 2, 4 Articles 26, parts 3 of article 99 of the Constitution of the Kyrgyz Republic.

From contents of the petition of the citizen Toktakunov N. A. follows that the law provision providing immediate release of the defendant after the introduction of sentence in legal force in case of pronouncement of the verdict of not guilty, and also in case of the resolution of sentence without assignment of punishment or with release from serving sentence, either condemnation is conditional, or condemnation to the punishment which is not connected with imprisonment, or the termination of criminal case by production violates the right to liberty, presumption of innocence and the principle of competitiveness and equality of participants guaranteed by the Constitution of the Kyrgyz Republic.

The applicant considers that the verdict of not guilty of court is official and motivated confutation of justification and rationality of accusation. Implies right to liberty and security of person that the compulsory provision in case of the solution of question of stay of person under guards is sufficiency of the bases for accusation, its rationality. If justification and rationality of accusation are confuted by the official judgment, leaving justified under guards becomes violation of its right to liberty and security of person. The fact that such court verdict does not take legal effect immediately is realization of the right of other party to appeal of the judgment, but does not mean at all that justified shall expect realization of this right, being in custody. The specified arguments will be approved with article 9 of the International Covenant on Civil and Political Rights in which reveals in more detail essence of right to liberty and security of person where in item 4 of Article 9 it is specified that everyone who is imprisoned owing to arrest or detention possesses the right to trial of its case in court that this court could issue instantly the decree concerning legality of his detention and dispose about its release if detention is illegal. Follows from sense of the specified regulation that the court considers legality of content of person under guards and disposes of its release if detention is illegal. If the court acquits this person, it that and obliges to release the authorities person from custody.

The fact that justified remains under guards before the expiration on appeal mentions also presumption of innocence, one of the most important components of which are the regulations that nobody shall prove the innocence, any doubts in guilt are interpreted for benefit of the person accused.

The applicant also considers that other important component of presumption of innocence are the regulations that the fault burden of proof on criminal case is assigned to the prosecutor. Remanding justified in custody, the law alleviates to the party of accusation its burden of proof of fault on criminal case, restacking its weight on shoulders of justified. In this regard the applicant asks to recognize Article 325 of the Code of penal procedure of the Kyrgyz Republic of the contradicting part of 1 Article 24, to parts 2, 4 Articles 26, of part 3 of article 99 of the Constitution of the Kyrgyz Republic.

Determination of board of judges of the Constitutional chamber of October 7, 2014 the petition of the citizen Toktakunov N. A. it was accepted to production.

In judicial session citizen Toktakunov N. A. specified amount of the requirements and asked to recognize unconstitutional normative provision of Article 325 of the Code of penal procedure of the Kyrgyz Republic "after the introduction of sentence in legal force" put into words.

Representative of the defendant party Yrysbekov T. Y., without having agreed with arguments of the addressing party, considers that the challenged normative provision of the Code of penal procedure of the Kyrgyz Republic does not contradict the Constitution of the Kyrgyz Republic and asks to leave the petition without satisfaction.

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