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

of July 23, 2004

About compliance of the decision of Judicial Board on civil cases of the Supreme Court of the Azerbaijan Republic of November 5, 2003 to the Constitution and the laws of the Azerbaijan Republic in connection with T. N. Rafiyev's claim

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, E.Mamedov, I. Nadzhafova (judge-speaker), S. Salmanova and A. Sultanov,

with participation of the court secretary I. Ismaylov,

applicant Rafiyev Tofiga Nadzhaf Oglou,

experts-heads of legal department of the Ministry of Defence of the Azerbaijan Republic R. Ramazanov, head of legal department of the State Customs Committee of the Azerbaijan Republic S. Mukhtarov, head of department of the Device Millie of Majlis of the Azerbaijan Republic N. Aliyev, director of the department of Provision of pensions of the State Social Security Fund of the Azerbaijan Republic U. Murshudov and chief economist of the State Social Security Fund T. Mamedov

according to part V of article 130 of the Constitution of the Azerbaijan Republic Nadzhaf Oglou about compliance of the decision of Judicial Board on Civil Cases of the Supreme Court of the Azerbaijan Republic of November 5, 2003 to the Constitution and the laws of the Azerbaijan Republic considered on proceeding in open court according to the procedure of the constitutional judicial proceedings the constitutional complaint case of Rafiyev Tofiga.

According to the letter of the chairman of the Supreme Court of the Azerbaijan Republic of July 8, 2004 No. 6K, the constitutional case was considered without participation of the representative of defendant.

Having heard the report of the judge I. Nadzhafov, performance of the applicant and the expert opinion - R. Ramazanova, S. Mukhtarov, N. Aliyev, U. Murshudov, T. Mamedov, having studied and having discussed case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic ESTABLISHED:

The decision of Sabailsky district court of the city of Baku of May 23, 2003 about variation of the claim of T. Rafiyev to Financial Management of the Ministry of the Homeland Security about pension payment was left by the decision of Judicial Board on Civil Cases of Appeal Court of the Azerbaijan Republic of August 19, 2003 without changes.

The judicial Board on Civil Cases of the Supreme Court which considered case on November 5, 2003 according to the writ of appeal of the claimant, left the decision of Appeal Court without changes.

T. Rafiyev was notified by the letter of the chairman of the Supreme Court of the Azerbaijan Republic of March 9, 2004 on lack of the bases for consideration of its additional writ of appeal.

T. N. Rafiyev specified in the claim submitted in the Constitutional Court that decisions and resolutions of courts were based on misinterpretation of regulatory legal acts, and this most violated its right to social insurance affirmed by the Constitution and other laws.

By court resolutions it was determined that T. N. Rafiyev from February 12, 1965 to February 12, 1991, that is within 26 years, was in public service in the state security agencies. On December 12, 1991 came to long-service pension, and, according to part I of article 1 of the Law USSR "About provision of pensions of the military personnel" of the April 28, 1990 operating at that time, to it the life pension was established. Part I of article 1 of the Law "About Provision of Pensions of the Military Personnel" adopted on April 29, 1992 affirmed the right of persons from this category, including T. N. Rafiyev, on receipt of life pension.

T. N. Rafiyev after retirement in December, 1991 was employed in Customs Committee of the Azerbaijan Republic and at present works as the chief of control room. From 1991 to December, 2000 he received both the pension established to it, and the salary issued from place of employment. It the order of the minister of the Homeland Security of the Azerbaijan Republic of April 18, 2000 was struck No. 17/10 in connection with age achievement of limit of condition in inventory off military stock accounting and retired in the colonel-lieutenant's rank.

Since December, 2000 T. N. Rafiyev began to collect the pension in savings bank. When in May, 2001 it came to savings bank for receipt of pension in six months, declared to it that Financial Management of MNB, having accepted the order about suspension of pension payment and return of the pension paid from December, 2000 to May, 2001, withdrew the savings accumulated for this period in savings bank. It was explained that the claimant T. N. Rafiyev after retirement was employed in bodies of customs. Courts in the decisions considered that work of the claimant T. N. Rafiyev in bodies of customs does not give the grounds for payment of pension to it as to the serviceman.

So, according to Article 113 of the Provision "About Service in Customs Authorities", approved by the Law of the Azerbaijan Republic of December 7, 1999, provision of pensions of the officials serving in customs authorities and members of their families is established by the Law of the Azerbaijan Republic "About provision of pensions of the military personnel". This provision was regarded by courts as repeated return of T. N. Rafiyev to military service, and they considered that it, according to part I of article 2 of the Law "About Provision of Pensions of the Military Personnel" and Article 133 of the Instruction "About rules of establishment of pension and benefits to military personnel and members of their families by the Ministry of the Homeland Security of the Azerbaijan Republic", gives the grounds for nonpayment to it pension.

According to part I of article 38 of the Constitution of the Azerbaijan Republic, everyone has right to social insurance. According to part III of this Article, everyone has right to social insurance on reaching the age established by the law, in case of disease, disability, loss of the supporter, disability, unemployment and in other cases provided by the law. The constitutional right on social security of each citizen provides also its right to pension in the amount of and in the cases established by the law. In this sense provision of pensions acts as important component of right to social insurance and found the reflection in a number of international legal acts which the Azerbaijan Republic joined.

Provisions of the specified Law exclude repeated acceptance on military service of the persons struck off the military register and transferred to resignation. Besides, according to article 1 of the Law "About the Status of the Military Personnel", the tasks of Armed Forces of the Azerbaijan Republic determined by the Law of the Azerbaijan Republic "About Armed Forces of the Azerbaijan Republic" conditions and nature of military service determine the status of the military personnel.

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