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

of October 28, 2004

About compliance of the resolution of Judicial Board on civil cases of the Supreme Court of the Azerbaijan Republic of January 28, 2004 to the Constitution and the laws of the Azerbaijan Republic in communication by A. M. Ibragimova's claim

Name of the Azerbaijan Republic

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

with the assistance of the applicant A. Ibragimova and her representatives I. Shirinov and S. Alkhazov,

according to part V of article 130 of the Constitution of the Azerbaijan Republic having considered on proceeding in open court according to the procedure of the constitutional legal proceedings the constitutional case on civil case on Miriyev's claim of Telman Farrukh ogla about compliance of the resolution SKPGD of the Supreme Court of the Azerbaijan Republic of January 28, 2004 to the Constitution and the laws of the Azerbaijan Republic.

According to the letter of the chairman of the Supreme Court of the Azerbaijan Republic No.-2n-348 of October 19, 2004, the constitutional case was considered without participation of the representative of defendant.

Having heard the report of the judge F. Babayev, performance of the applicant A. Ibragimova and her representatives I. Shirinov and Sh. Alkhazov on case, having discussed case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic ESTABLISHED:

The claim the applicant T. Miriyev to the defendant L. Avakyana about recognition of the transaction which took place between them was satisfied with the decision of Narimanovsky district court of September 4, 2003, the sale and purchase agreement signed between T. Miriyev and L. Avakyan on the belonging L. Avakyana 1/5 parts of the house to the address: Baku, Ulitsa S. Rakhmana, 74, was acknowledged, and issue of the registration certificate addressed to Miriyev of Telman Farrukh to ogl is assigned to the Baku municipal government of technical inventory count and registration of property rights.

Narimanovsky district court (judge E. S. Babayev) on August 21, 2003, having considered civil case in A. Ibragimova's claim to T. Miriyev for recognition of the transaction which took place and about its eviction from living space, took out determination about suspension of proceeedings before consideration on September 16, 2003 in essence and permissions in appeal procedure for the previous decision on civil case in T. Miriyev's claim.

S. Kuliyeva and A. Ibragimov as interested persons made the petition for appeal about the decision of September 4, 2003 with request to send the claim together with materials on civil case to Appeal Court of the Azerbaijan Republic. The petition for appeal of S. Kuliyeva and A. Ibragimova together with the materials attached to it were returned by determination of Narimanovsky district court of September 22, 2003 in view of the fact that as the concerned party in the specified judgment they have no right to submission of the petition for appeal.

S. Kuliyeva and A. Ibragimov, having made the petition for appeal, asked about cancellation of determination of court and pronouncement of the new decision on satisfaction of the claim. By determination of SKPGD of Appeal Court of October 30, 2003 it was solved, having cancelled determination of Narimanovsky district court, to consider in essence in appeal procedure the petition for appeal on the decision of September 4, 2003.

Having made the writ of appeal, T. Miriyev asks about cancellation of determination of Appeal Court of October 30, 2003 and petition for appeal variation. SKPGD of the Supreme Court the resolution of June 28, 2004 did not accept to production the petition for appeal of S. Kuliyeva and A. Ibragimova on the decision of Narimanovsky district court in view of its legal groundlessness.

By the letter of the chairman of the Supreme Court of June 21, 2004 A. Ibragimov it was notified that the bases for the direction of its additional writ of appeal in the Plenum of the Supreme Court were not determined.

A. Ibragimova in the claim sent to the Constitutional Court including the resolution SKPGD of the Supreme Court of the Azerbaijan Republic illegal and unreasonable, asks it to cancel. The claim was proved by the fact that SKPGD of the Supreme Court, interfering with the questions connected with merits of case exceeded the authority, having resolved issue of possibility of acceptance to production in appeal procedure the petition for appeal on resolution of the Trial Court, and it violated its right to judicial protection provided in the Constitution of the Azerbaijan Republic. The plenum of the Constitutional Court of the Azerbaijan Republic in connection with the claim notes following.

Article 60 of the Constitution of the Azerbaijan Republic guarantees everyone judicial protection of its rights and freedoms. The main sense of noted guarantee is also that the court considering case shall be effective only within the powers provided by the law. This requirement also follows from provisions of article 6 of the European Convention "About Protection of the Rights and Fundamental Freedoms of the Person".

In the legislation of the Azerbaijan Republic, having taken legal mechanism, obligatory within judicial system, into account illegal and unreasonable court resolutions did not remain in force, powers, the rights and obligations of different degrees of jurisdiction are determined.

It should be noted that the Civil Procedure Code of the Azerbaijan Republic including the rights recognized by the Constitution and the international acts guarantees execution of the fair legal proceedings connected with violations of the civil laws.

The three-stage judicial system provided in GPK of the Azerbaijan Republic is the judicial mechanism for impartial, fair, legal and reasonable permission of civil disputes. In GPK the circle of powers for each degree of jurisdiction is specifically determined.

In Article 398 GPK of the Azerbaijan Republic powers of Appeal Court are specified. According to this Article, the Appeal Court has the right to leave resolution of the Trial Court without changes or to cancel in part, or to change and bring case in Trial Court. However Appeal Court, in defiance of requirements of Article 398 GPK, having cancelled determination of Narimanovsky district court of September 22, 2003 in T. Miriyev's claim, took out determination about new trial of case on being in appeal procedure.

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