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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE AZERBAIJAN REPUBLIC

of June 17, 2003

On interpretation of the first part of Article 115, first part of Article 116 and second part of Article 136 of the Labor code of the Azerbaijan Republic

Name of the Azerbaijan Republic

Constitutional court of the Azerbaijan Republic as a part of A. Sultanov (chairman), judges: F. Babayeva, B. Garibova (judge-speaker), R. Gvaladze, E. Mamedova, I. Nadzhafova, S. Salmanova

with I. Ismaylov's participation,

legal representatives of the subjects interested in special constitutional production - the judge of the Supreme Court of the Azerbaijan Republic B. Asadov, the assistant manager General department of the Device of Millie of Majlis of the Azerbaijan Republic I. Abdulazizov and the senior assistant of legal department of the Cabinet of Ministers of the Azerbaijan Republic G. Ashrafov,

expert, head of the department of the civil and procedural, labor and environmental law of law department of the Baku state university, Candidate of Law Sciences A. Gasymov,

specialists - the head of department of labor policy of the Ministry of Labour and Social Protection of the population of the Azerbaijan Republic T. Mamedova,

manager of legal department of the Azerbaijani confederation of labor unions A. Efendiyev

according to part IV of article 130 of the Constitution of the Azerbaijan Republic considered in proceeding in open court the constitutional case connected with request of the Supreme Court of the Azerbaijan Republic of May 15, 2003 No. 8 - 4/03 concerning interpretation of the first part of Article 115, of the first part of Article 116 and the second part of Article 136 of the Labor code of the Azerbaijan Republic.

Having heard the report of the judge B. Garibov, performance of legal representatives of the subjects interested in special constitutional production, B. Asadova, I. Abdulazizov and G. Ashrafov the expert opinion of A. Gasymov, the reference of specialists T. Mamedova and A. Efendiyev and having studied materials of the constitutional case, the Constitutional court of the Azerbaijan Republic determined:

In request the Supreme Court of the Azerbaijan Republic notes that in the Labor code of the Azerbaijan Republic provision of additional vacation for working conditions and specifics of labor function (the first part of Article 115) and depending on working life (the first part of Article 116) is established, and in the second part of article 136 of the same Code it is noted that in the presence the worker has rights at the same time to two and more additional vacations provided in Articles 115 and 116, one additional vacation of bigger duration joins its main leave.

Proceeding from the fact that application of the second part of Article 136 of the Labor code owing to inaccuracy of its creation causes difficulties in activities of organizations the companies and the organizations, and also in court practice and negatively influences edinost of court practice, the Supreme Court of the Azerbaijan Republic asks to interpret parts the first Articles 115, the first Articles 116, the second Article 136 of the Labor code.

Official texts of Articles 115, 116 and 136 Labor codes of the Azerbaijan Republic certified of Millie's Device of Majlis of the Azerbaijan Republic are attached to case papers.

The constitutional court of the Azerbaijan Republic in connection with request notes that the right to rest is among the basic rights and freedoms enshrined in the Constitution of the Azerbaijan Republic.

According to article 37 of the Constitution everyone has right to rest. Working according to the employment contract the daily working day established by the law, but not exceeding 8 hours, days of rest and holidays, provision at least once in year of paid leave lasting at least than 21 calendar day are guaranteed.

The provisions connected with the right to leave found reflection and in a number of the international legal acts with participation of the Azerbaijan Republic. According to Item 1 of article 3 of the Convention "About Paid Leaves" which was accepted by the International Labour Organization in 1970 and which the Azerbaijan Republic joined since June 19, 1994 each person has the right to annual paid leave of the established minimum duration.

The procedure and conditions of provision of time for rest and leaves according to the principles and regulations of the Constitution and international convention are also among the relations regulated by the Labor code.

As it is noted in the resolution of the Constitutional court of the Azerbaijan Republic of November 29, 2000, provision and additional vacation depending on nature of work and working life is directed to workers along with the basic, on the one hand, to recovery of health of workers in connection with accomplishment of the labor functions by them, and on the other hand - to their awarding for long-run effective job.

According to the Item "and" of the first part of Article 112 of the Labor code providing leave types, labor leave consists of the main and additional leaves.

In the second part of article 113 of the mentioned Code it is noted that Labour leave consists of the annual main leave granted by the worker performing labor function by the corresponding profession (position) and the additional vacation granted for nature of production, work and for working life and also to the women having children and it can be provided both jointly, and separately.

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