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RESOLUTION OF THE PLENUM OF THE CONSTITUTIONAL COURT OF THE AZERBAIJAN REPUBLIC

of January 12, 2005

About check of compliance of the Constitution and to the laws of the Azerbaijan Republic of resolutions of Judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of October 25, 2002 and on May 14, 2004 according to the claim Kamala Alekper Oglou of Makhmudov

Name of the Azerbaijan Republic

Plenum of the Constitutional court in F. Abdullaev (chairman), F. Babayev, B. Garibov, R. Gvaladze, E. Mamedov, I. Nadzhafov, S. Salmanova's structure (the judge - the speaker) and A. Sultanova,

with the assistance of the judicial secretary of I. Ismaylov,

the representative applicant K. Makhmudov there is A. Alekperova,

according to part V of article 130 of the Constitution of the Azerbaijan Republic in open session on the constitutional judicial proceedings considered based on K. Makhmudov's claim the constitutional case on check of compliance of the Constitution and the laws of the Azerbaijan Republic of resolutions of Judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of October 25, 2002 and on May 14, 2004.

Based on the letter of the chairman of the Supreme Court of the Azerbaijan Republic of December 28, 2002 the constitutional case was considered without participation of the agent of the party of the defendant.

Plenum of the Constitutional court of the Azerbaijan Republic, having heard the report of the judge-speaker S. Salmanova, speech of the representative applicant K. Makhmudov - A. Alekperova, having studied case papers, established:

The decision of Binagadinsky district court of the city of Baku of July 10, 2000 satisfied S. Shirinova's claim to I. Makhmudov for recognition invalid orders, the order and the registration certificate on the apartment 22, of the house 39 "A" down the street Nakhchyvani, the city of Baku and its eviction together with family members from the specified apartment.

The judicial board on civil cases (further - SKGD) Appeal Court of the Azerbaijan Republic made the decision of November 22, 2000 on change of the decision of Binagadinsky district court, cancellation of the order, order and registration certificate issued addressed to K. Makhmudov and its eviction from the specified apartment, having provided with other living space corresponding to the sizes and conveniences of the disputed apartment.

Judicial board on civil cases (further SKGD) the Supreme Court of the Azerbaijan Republic of March 14, 2001 the decision of Appeal Court of March 14, 2001 was changed by the resolution and from the specified decision specifying "was withdrawn having provided K. Makhmudov with family members in other living space corresponding to the sizes and conveniences of the disputed apartment".

The plenum of the Supreme Court the resolution of November 01, 2001 cancelled part of the resolution SKGD of the Supreme Court of March 14, 2001 about K. Makhmudov's eviction with family members from the disputed apartment without provision of other living space and kept in force the corresponding part of the solution of SKGD of Appeal Court of November 22, 2000, having left other part of the resolution without changes. After this SKGD of Appeal Court granted K. Makhmudov's application for return of execution of the decision of Binagadinsky district court of July 10, 2000 and accepted determination of November 26, 2001 about resettlement it with family members to the disputed apartment and S. Shirinova's eviction from the specified apartment.

The specified determination of SKGD of Appeal Court was cancelled by the resolution SKGD of the Supreme Court of January 30, 2002. SKGD of Appeal Court, the determination of May 23, 2002 having made return of execution of the decision of Binagadinsky district court of July 10, 2000, accepted the resolution on K. Makhmudov's installation with family members in the disputed apartment and eviction from this apartment of S. Shirinova.

According to the resolution Skgd of the Supreme Court of October 25, 2002 the writ of appeal of S. Shirinova was partially satisfied, determination Skgd of Appeal Court of May 23, 2002 was changed, and K. Makhmudov's statement for return of execution of the decision was not satisfied.

SKGD of the Supreme Court, having considered S. Shirinova's application for return of execution of the above-stated determination, the resolution of May 14, 2004 accepted the resolution on return of execution of the specified determination Skgd of Appeal Court, about K. Makhmudov's eviction with family members from the disputed apartment and its installation in this apartment.

The additional writ of appeal made by K. Makhmudov concerning the above-noted court resolution was not satisfied and was declared by the letter of the chairman of the Supreme Court of June 23, 2004 lack of the basis for removal of case at the Plenum of the Supreme Court.

The applicant declares that information on carrying out judicial session of SKGD of the Supreme Court of the Azerbaijan Republic and the resolution accepted this day do not own on October 25, 2002, specifies discrepancy of the resolution of the this board of May 14, 2004 to part I of article 43 of the Constitution of the Azerbaijan Republic and number of regulations of the Code of civil procedure (further - GPK) (to Articles 19.1.3., 405.1, 407 and 417) also asks to consider this resolution invalid.

In connection with K. Makhmudova Plenum Konstitutsionny Sud's claim notes the following:

From the circumstances established by vessels of the first and appellate instance on the merits of the case it is visible that the disputed apartment in 1993 was provided to Sevindzh and Aziza Shirinovym, however owing to occupation of the specified apartment by the resident of Beylagansky district F. Nagiyev, S. Shirinova within about 6 months could not be installed to this apartment.

The decision of Binagadinsky district court of April 23, 1999 the warrant for the disputed apartment issued addressed to S. Shirinova was considered invalid. After the introduction of this decision on August 10, 1999 in legal force, addressed to K. Makhmudov the warrant for the specified apartment was issued.

At the time of issue of the order to K. Makhmudov the apartment was empty, and about a month later from the date of its installation and accommodation in this apartment, the decision of Binagadinsky district court on sochteniya of the order issued addressed to S. Shirinova to invalid was cancelled by the resolution of Presidium of the Baku city court of September 3, 1999, and case is directed to review in the specified court.

In view of the fact that S. Shirinova did not know about transfer of the disputed apartment to K. Makhmudov, she brought the suit against F. Nagiyev and the claim of WILLOWS of Binagadinsky district for sochteniya invalid the order issued addressed to S. Shirinova was rejected by the decision of Binagadinsky district court of April 6, 2000, and S. Shirinova's claim for F. Nagiyev's eviction from the apartment - is satisfied.

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