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

of November 9, 2004

About compliance of the resolution of Judicial Board on civil cases of the Supreme Court of the Azerbaijan Republic of April 1, 2004 to the Constitution and the laws of the Azerbaijan Republic in connection with I. M. Allakhverdiyev's claim and others

Name of the Azerbaijan Republic

Plenum of the Constitutional Court of the Azerbaijan Republic as a part of F. Abdullaev (chairman), F. Babayeva, B. Garibova (judge-speaker), R. Gvaladze, E. Mamedova, I. Nadzhafova, S. Salmanova and A. Sultanov, with participation of the court secretary I. Ismaylov,

applicant I. Allakhverdiyev

according to part V of article 130 of the Constitution of the Azerbaijan Republic considered on proceeding in open court according to the procedure of the constitutional production Imran Misir's claim to Allakhverdiyev's ogl and others about compliance of the resolution of Judicial Board on Civil Cases of the Supreme Court of the Azerbaijan Republic (SKPGD) of April 1, 2004 on civil case about cancellation of the order concerning Baky Elektrotekmya Open joint stock company of the Constitution and to the laws of the Azerbaijan Republic. According to the letter of the chairman of the Supreme Court of the Azerbaijan Republic of October 20, 2004 No. 8m-356/04 the constitutional case was considered without participation of the representative of defendant.

Having heard the report of the judge B. Garibov, performance of the applicant I. Allakhverdiyev on case, having studied and having discussed case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic ESTABLISHED:

I. M. Allakhverdiyev, G. N. Muradov, A. D. Zulfugarov, A. V. Ibragimov, N. N. Kadyrov, D.Kh. Ragimov, E. B. Mamedov, G. I. Dadashov, V. M. Arazov, A. A. Ibragimov, B. U. Abdulov, R. Z. Mamedov (further I. Mallakhverdiyev and others) specify in the claims that the decision of Narimanovsky district court of September 10, 2003 rejects their claims concerning Baky Elektrotekmya Open joint stock company for cancellation of the order at No. 28 of February 27, 1998, taking into account pronouncement of this order in 1998 and the expirations of limitation period.

The resolution of the Trial Court was left by the decision of the Judicial Board on Civil Cases (JBCC) of Appeal Court of the Azerbaijan Republic of November 20, 2003 without change. The solution of SKPGD of Appeal Court is left by the resolution of the Judicial Board on Civil Cases (JBCC) of the Supreme Court of the Azerbaijan Republic of April 1, 2004 without change, and the writ of appeal was not satisfied.

By the letter of the chairman of the Supreme Court of the Azerbaijan Republic of June 1, 2004 it was refused pronouncement at the Plenum of the Supreme Court of the Azerbaijan Republic of I. M. Allakhverdiyev's complaint made according to the procedure to the additional cassation and others in view of lack of the bases provided in Article 424 of the Civil Procedure Code of the Azerbaijan Republic.

Further in the claim it is specified that applicants worked in the organization of the defendant, during the different periods in case of execution of labor obligations sustained injuries, and because of disability the corresponding benefits with recognition of their disability were paid to them for labor mutilations.

Despite establishment in the legislation of the Azerbaijan Republic only of increase in amount and the sizes of the benefits paid to the workers who sustained injuries in case of execution of labor obligations, and also got occupational diseases or the families of workers which died for these reasons, the order No. 28 of February 27, 1998 provided in quality of the factor operating on amount and the size of the benefits issued to specified persons along with the actual increase or salary reduction in connection with change of the production rate.

And this circumstance, having been the cause of reduction of the size of the benefits which are subject to issue to persons recognized as disabled people in view of receipt of labor mutilation at this company led to violation of the rights provided by the law.

In the claim it is also specified that the claim of 10 workers from this category against this company about the requirement of benefits was completely satisfied with courts (decisions of Narimanovsky district court of October 9, 2000 and SKPGD of Appeal Court of the Azerbaijan Republic of April 16, 2001, the resolution SKPGD of the Supreme Court of the Azerbaijan Republic of June 8, 2001).

So, applicants, including the court order of cassation instance illegal and unreasonable, ask to check its compliance to the Constitution and the civil legislation of the Azerbaijan Republic.

In connection with the claim Plenum of the Constitutional Court notes the following. From case papers it is visible, as. M. Allakhverdiyev and others appealed to Narimanovsky district court with the claim concerning Baky Elektrotekmya Open joint stock company for cancellation of the order No. 28 of February 27, 1998 "about procedure for execution of 3rd Item of the Provision from 02. 02. 1998 in months of production of product in number of at least 100 tons a month or for temporary or long-term suspension of work at the plant" on the Myarkyazi Elektrotekmya plant. The claim was proved by the fact that these persons worked at the company, sustained labor injuries at different times, because of disability were recognized as disabled people and for the sustained injuries the benefit was issued to them. But the defendant in connection therewith the order reduced the amount of the monthly benefits which are subject to payment to these persons, with recalculation of the monthly allowances granted to them, based on mass reduction of tariff earnings for subsequent periods from the date of its removal. And this circumstance is not stipulated by the legislation the Azerbaijan Republic.

The claim was rejected by the decision of Narimanovsky district court of September 10, 2003 on the basis of parts III and IV of Article 296 of the Labor Code of the Azerbaijan Republic (for permission of the employment disputes which arose in connection with monetary and other property claims, and also damnification, the worker can take a legal action during 1 year from the date of when he learned about violation of the right) and Article 375.2 of the Civil Procedure Code of the Azerbaijan Republic.

The solution of SKPGD of Appeal Court of the Azerbaijan Republic of November 20, 2003 and the resolution SKPGD of the Supreme Court of the Azerbaijan Republic of April 1, 2004 were left without changes according to decision of the courts of the first and appeal instances.

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