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

of February 16, 1999

About dispute over question of separation of powers between the authorities in connection with the order of the chief executive of the city of Baku No. 876 of July 14, 1995 "About cancellation of the resolution of Executive Committee of the Baku City Council of People's Deputies No. 3/81 of April 20, 1990"

Name of the Azerbaijan Republic

Constitutional court of the Azerbaijan Republic as a part of H. Gadzhiyev (Chairman), F. Babayeva, B. Garibov, R. Gvaladze (judge-speaker), E. Mamedova, S. Salmanova, A. Sultanov, with participation of the court secretary I. Ismailov,

the legal representative of the body which sent inquiry, the vice-chairman of the Supreme Court of the Azerbaijan Republic Ch. Bashirov, legal representatives of the response party head of department of administrative legal bonds of the Baku city executive authority of Z. Rzayeva and the head of department of distribution and registration of living space I. Gadzhigaibov

according to Item 9 of part III of article 130 of the Constitution of the Azerbaijan Republic considered in proceeding in open court case on request of the Supreme Court of the Azerbaijan Republic of January 12, 1999, No. 5-1/98 about the order of the chief executive of the city of Baku No. 876 of July 14, 1995 "About cancellation of the resolution of Executive Committee of the Baku City Council of People's Deputies No. 3/81 of April 20, 1990". Having heard the report of the judge R. Gvaladze, performance of legal representatives of the parties Ch. Bashirov, I. Gadzhigaibov, Z. Rzayeva, having considered the provided materials, the Constitutional Court of the Azerbaijan Republic ESTABLISHED:

The Supreme Court of the Azerbaijan Republic in the request asks to check compliance of the Items 2,2. 1 and 3 orders of the chief executive of the city of Baku No. 876 of July 14, 1995 "About cancellation of the resolution of Executive Committee of the Baku City Council of People's Deputies No. 3/81 of April 20, 1990" parts III of Article 28, parts III of Article 29, Items 12, 13 parts I of Article 94, parts I of article 150 of the Constitution of the Azerbaijan Republic, article 21 of the Law of the Azerbaijan Republic of November 9, 1991, "About property in the Azerbaijan Republic", to Article 100-1 of the Civil Code of the Azerbaijan Republic, articles 2 and 3 of the Law of the Azerbaijan Republic of April 4, 1996 "About registration at the place of residence and the place of stay", Article 13 of the Provision "About Enhancement of Structure and Activities of State Governing Bodies in Areas, the Cities, Urban Areas, Villages and Settlements of the Azerbaijan Republic" approved by the Presidential decree of the Azerbaijan Republic of October 18, 1991.

According to the body which sent request the Items 2,2. 1 and 3 the specified orders of the chief executive of the city of Baku significantly are limited enshrined in the Constitution of the Azerbaijan Republic, and also in other laws and regulatory legal acts of the property right of citizens. Besides, the body which sent inquiry considers that the above-named Items of the order contradict the principle of separation of judicial, executive and legislative branches of the power enshrined in the Constitution of the Azerbaijan Republic.

Copies of official texts of the order of the chief executive of the city of Baku No. 876 of July 14, 1995 "About cancellation of the resolution of Executive Committee of the Baku City Council of People's Deputies No. 3/81 of April 20, 1990", the Provision "About Enhancement of Structure and Activities of State Governing Bodies in Areas, the Cities, Urban Areas, Villages and Settlements of the Azerbaijan Republic" approved by the Presidential decree of the Azerbaijan Republic No. 372 of October 18, 1991, the Laws "About Property in the Azerbaijan Republic" of November 9, 1991, "About registration at the place of residence and the place of stay" of April 14, 1996 are attached to materials of case in point.

The constitutional court of the Azerbaijan Republic notes the following:

Items 2, 2. 1 and 3, of the order of the chief executive of the city of Baku stated above it is determined that the citizens who had passport registration till 1990 can acquire houses (apartment) by purchase and sale.

This restriction extends only temporarily to the solution of question of return of the citizens who by force left places of permanent residence. Besides, the house (apartment), can be presented only to close relatives (the husband, the wife, children, brothers, sisters) having registration in the city of Baku. In case of reasonable excuses the chief executive of the city of Baku can permit to the citizens who do not have registration on acquisition of the house (apartment) according to purchase and sale agreements and donations.

Apparently, the order established general rules of legal regime of property that contradicts the international precepts of law, part III of Article 28, of part III of article 29 of the Constitution of the Azerbaijan Republic, to relevant provisions of other laws and regulatory legal acts of the Azerbaijan Republic.

So, according to part I of Article 13 of "Universal Declaration of Human Rights", the accepted United Nations General Assembly on December 10, 1948, each person has the right to freely move and choose to himself residences within each state.

In part I of Article 17 of the above-named Declaration it is specified: "Each person has the right to own property as solely, and together with others". To choose legitimate right of everyone to itself the residence follows from requirements of part III of article 28 of the Constitution of the Azerbaijan Republic. According to part III of article 29 of the Constitution of the Azerbaijan Republic everyone in property can have personal and real estate. The property right includes the right of the owner most or together with other persons to own, use and dispose of property.

In article 21 of the Law "About Property in the Azerbaijan Republic" of November 9, 1991 it is specified that the citizen having the apartment in property, the apartment house, giving, garage, other rooms and structures has the right to dispose of them at discretion: sell, grant, bequeath, lease, make with them other transactions which are not contradicting the law.

The rights of citizens of the Azerbaijan Republic specified in this Law found the reflection and in Art. 101-1 of the Civil Code of the Azerbaijan Republic. Thus, Items 2,2. 1, and 3 the mentioned orders of the chief executive of the city of Baku limit the rights of citizens of the Azerbaijan Republic to acquisition provided by the Constitution of the Azerbaijan Republic, the Law "About Property in the Azerbaijan Republic" and the Civil Code of the Azerbaijan Republic in property of the house (apartment), giving and other structures, and also the right to dispose of this property. Besides, apparently from Items 2, 2. 1, 3 aforesaid of the order, purchase and sale, donation of apartments in the city of Baku contact availability of passport registration, and it contradicts the Law of the Azerbaijan Republic of April 4, 1996 "About registration at the place of residence and the place of stay".

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