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

of November 19, 2004

About compliance of the resolution of Judicial Board on cases on economic disputes of the Supreme Court of the Azerbaijan Republic of October 9, 2003 to the Constitution and the laws of the Azerbaijan Republic in connection with the claim of Sema-10

Name of the Azerbaijan Republic

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

applicant CEO of Sema-10 D. M. Aliyev and his representative M. Ya. Novruzov,

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 legal proceedings the constitutional complaint case of Sema-10 about compliance of the resolution of Judicial Board on Cases on Economic Disputes of the Supreme Court of the Azerbaijan Republic of October 9, 2003 to the Constitution and the laws of the Azerbaijan Republic.

The constitutional case is considered without participation of the defendant.

Having heard the report of the judge R. Gvaladze, D. M. Aliyev and M. Ya. Novruzov's performance on case, having studied and having discussed case papers, the Plenum of the Constitutional Court of USTANOVIL:

The decision of Local Economic Court No. 1 of the Azerbaijan Republic of May 19, 2003 satisfies the claim of Sema-10 to the Etilenpolietilen plant about debt repayment in the amount of 320. 130. 000th manat:

* it is decided to collect at the Etilen-Polietilen plant for benefit of Sema-10 20. 500. The 000th manat as principal debt;

* penalty in the amount of 298. 275. 000th manat;

* the amount in 1. 355. The 000th manat, required by tax authority.

The decision of the above-stated Trial Court is left by the decision of Economic Court of the Azerbaijan Republic of August 12, 2003 without changes. The decision of Economic Court of the Azerbaijan Republic is changed by the resolution of Judicial Board on Cases on Economic Disputes of the Supreme Court of the Azerbaijan Republic (SKDES) of October 9, 2003, the part of the claim of Sema-10 concerning penalty in the amount of 298. 375. The 000th manat, it is rejected, other part is left without changes.

According to the letter of the chairman of the Supreme Court of the Azerbaijan Republic of April 20, 2004, the claim of Sema-10 shown according to the procedure of the additional cassation is not sent for consideration of the Plenum of the Supreme Court of the Azerbaijan Republic due to the lack of the bases provided in Article 424 of the Code of civil procedure of the Azerbaijan Republic (GPK).

The applicant firm of "Sema-10", including the court order of cassation instance illegal and unreasonable, asks to check compliance of its Constitution and to the civil legislation. The claim is proved by the fact that the court of cassation instance, having applied unliable to application Article 74 of the Civil Code of the Azerbaijan Republic (group of companies) which became effective since 1964 rejected the part of the claim concerning penalty.

Besides, in the claim it is specified that the court of cassation instance in contradiction to requirements of the procedural legislation was beyond the powers and made the decision new in essence.

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