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

of July 26, 2004

About compliance of the resolution of the Plenum of the Supreme Court of the Azerbaijan Republic of March 24, 2004 to the Constitution and the laws of the Azerbaijan Republic in connection with R. A. Aslanov's claim

Name of the Azerbaijan Republic

Constitutional court of the Azerbaijan Republic as a part of F. Abdullaev (chairman), F. Babayeva (judge-speaker), B. Garibova, R. Gvaladze, E.Mamedova, S. Salmanova and A. Sultanov,

with participation of the court secretary I. Ismaylov,

zayavitelya-Aslanova Rufat Aliyevich and legal representative Z.Mamedova,

according to part V of article 130 of the Constitution of the Azerbaijan Republic on proceeding in open court on the constitutional judicial proceedings Elkhana Tayar to ogl to Aslanov Rufat Aliyevich about recognition of sale and purchase agreements invalid, cancellation of registration certificates and about the counter action of Aslanov Rufat Aliyevich to Abbasov to Elkhan Tayar to ogl and Yagubovy Sariya Iza of gyza about eviction and loss of the right to the apartment considered the constitutional case on compliance of the resolution of the Plenum of the Supreme Court of the Azerbaijan Republic of March 24, 2004 on civil case in Abbasov's claim.

According to the letter of the Chairman of the Supreme Court of the Azerbaijan Republic of June 25, 2004, the constitutional case was considered without participation of the representative of defendant.

Having heard the report of the judge F. Babayev, speech of the representative applicant Z.Mamedova, having discussed case papers, the Constitutional Court of the Azerbaijan Republic ESTABLISHED:

Abbasov's claim Elkhana Tayar Oglou to Aslanov Rufat Aliyevich about recognition invalid the sale and purchase agreements of apartments and registration certificates signed between them was satisfied with the decision of Sabailsky district court of the city of Baku of November 8, 2002, the counter action of R. Aslanov to E.Abbasov and S. Yagubova about eviction and loss of the right to the apartment was rejected.

The decision of Judicial Board on Civil cases of Appeal Court of the Azerbaijan Republic (SKPGD) of March 3, 2003 the decision of Sabailsky district court of the city of Baku of November 8, 2002 was it is rejected, E.Abbasov's claim to R. Aslanov for cancellation of the registration certificate and about recognition of the sale and purchase agreement was rejected by invalid, and the counter action of R. Aslanov was satisfied.

The resolution SKPGD of the Supreme Court of the Azerbaijan Republic of April 30, 2003 the above-stated judgment of appellate instance was repealed, case was directed for new trial in appeal procedure.

SKPGD of Appeal Court of the Azerbaijan Republic the decision of August 6, 2003, having cancelled the decision of Sabailsky district court on this case, rejected E.Abbasov's claim, and satisfied the counter action of R. Aslanov.

The judgment of appellate instance of August 6, 2003 is left by the resolution SKPGD of the Supreme Court of the Azerbaijan Republic of November 7, 2003 without changes.

By the resolution of the Plenum of the Supreme Court of the Azerbaijan Republic of March 24, 2004, taken out on this case the resolution SKPGD of the Supreme Court of November 7, 2003 and the related solution of SKPGD of Appeal Court of August 6, 2003 were changed, E.Abbasov's claim is satisfied, prisoners between it and R. Aslanov sale and purchase agreements of apartments, at the address were acknowledged invalid: Baku, пр; G. Jaweed, the house 1, and according to the same prospectus the house 15, sq. 11, at numbers 137733 and 137734 the registration certificates issued based on these agreements addressed to R. Aslanov of July 17, 2002 is also rejected by quarter 11 the counter action of R. Aslanov to E.Aslanov and S. Yagubova about eviction and about loss of the right to housing.

In the claim R. Aslanov asks to repeal the Resolution of the Plenum of the Supreme Court, including its illegal and unreasonable. The claim is proved by the fact that on this case the Plenum of the Supreme Court, violating requirements of Articles 424 and 429 of the Code of Civil Procedure (CCP), having assigned to itself powers of Trial Court, having given assessment to the actual circumstances on case, having changed the decision of appellate instance, not having on that powers, made the new decision. Thereby its rights to judicial protection and the property specified in the Constitution of the Azerbaijan Republic were violated.

The plenum of the Constitutional Court of the Azerbaijan Republic of rather this case notes following.

In article 60 of the Constitution of the Azerbaijan Republic protection in court of the rights and freedoms of everyone is guaranteed. Importance of the mentioned protection is also that the court considering case shall be effective within the powers specified by the law. This requirement follows also from provisions of article 6 of the European Convention on protection of the rights and fundamental freedoms of the person.

In order that illegal and unreasonable court resolutions did not remain in force, the legislation of the Azerbaijan Republic, considering the legal mechanism obligatory within judicial system, determined powers, the rights and obligations of different degrees of jurisdiction.

It should be noted that reflecting recognized by the Constitution and the international acts of the right, Civil and Civil procedural codes of the Azerbaijan Republic respectively regulate the civil laws and guarantee carrying out fair legal proceedings in connection with violation of these rights.

The three-stage judicial system specified in GPK of the Azerbaijan Republic is the judicial mechanism for the impartial, fair, legal and thorough decision of civil disputes. The circle of powers of each degree of jurisdiction is specifically determined in GPK. So, powers of the Plenum of the Supreme Court on civil cases are limited only to determination of correctness of permission of legal issues.

In the resolution of the Plenum of the Constitutional Court of May 21, 2004 about compliance to the laws and the Constitution of the Azerbaijan Republic of the resolution of the Plenum of the Supreme Court of the Azerbaijan Republic of February 1, 2002 in connection with Zalov's claim of Aydyn Gasanbal to ogl it is specified that unlike Trial and Appeal Courts according to the procedure of cassation and additional cassation production the merits of the case are not considered, that is new proofs are not accepted, the actual facts of the case are not considered, legal evaluation is not given to proofs. In general, substantive prosecution and decision making is possible if on case, except the facts considered by the previous degrees of jurisdiction, also other facts are researched. And such powers are provided by the legislation only to Trial and Appeal Courts.

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