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

of June 17, 2004

About compliance of the resolution of the Plenum of the Supreme Court of the Azerbaijan Republic of February 14, 2003 to the Constitution and the laws of the Azerbaijan Republic in connection with I. R. Aliyev's claim

Name of the Azerbaijan Republic

The plenum of the Constitutional Court of the Azerbaijan Republic as a part of F. Abdullaev (chairman), B. Garibova, R. Gvaladze (judge-speaker), E.Mamedova, S. Salmanova and A. Sultanov, with participation of the court secretary I. Ismaylov, representatives of the applicant T. Aliyeva and T. Sultanov, 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 judicial proceedings the constitutional complaint case of the citizen Aliyev Islam Rz to ogl about compliance of the resolution of the Plenum of the Supreme Court of the Azerbaijan Republic of February 14, 2003 on civil case in Aliyeva's claim of Lala Hamlet of gyza to it about recognition of the rights to use of the seasonal dacha and its claim to L. G. Aliyeva and others about liquidation of the lease agreement of the Constitution and to the laws of the Azerbaijan Republic.

According to the letter of the Chairman of the Supreme Court of the Azerbaijan Republic of June 4, 2004 No. 8m-2/04, the constitutional case was considered without participation of the representative of defendant.

Having heard the report of the judge R. Gvaladze, speech of the representative applicant T. Soltanov, having discussed case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic ESTABLISHED:

The decision of Nasiminsky district court of March 6, 2002 L. Aliyeva's claim to Consolidation of development and operation of small-scale farming and construction (OREDH) and I. About recognition of its right to the seasonal dacha and the conclusion of the lease agreement with it the counter action of I. Aliyev concerning L. Aliyeva and others about recognition invalid the lease agreement signed with L. Aliyeva is left to R. Aliyev without satisfaction, and privatizations of the seasonal dacha and the country house it is satisfied.

The resolution of the Trial Court is left by the decision of Judicial Board on Civil Cases of Appeal Court (SKPGD) of the Azerbaijan Republic of June 12, 2002 without changes. The above-stated judgment of appellate instance is left by the resolution SKPGD of the Supreme Court of the Azerbaijan Republic of September 20, 2002 without changes.

Are changed by the resolution of the Plenum of the Supreme Court of the Azerbaijan Republic of February 14, 2003 the Resolution of Judicial Board on Civil Cases of the Supreme Court of the Azerbaijan Republic and the related decision of Judicial Board on Civil Cases of Appeal Court of the Azerbaijan Republic, L. Aliyeva's claim is satisfied, its rights to the seasonal dacha No. 231 "an" in country array of Bilgya are acknowledged, obligations of the conclusion of the lease agreement on this seasonal dacha from L. Aliyeva were assigned to OREDH and contracts No. 20491 of January 8, 1991 with I. Aliyev are repealed.

I. Aliyev in the claim, including the Resolution of the Plenum of the Supreme Court illegal and unreasonable, asks to cancel it. The claim was proved by the fact that the Plenum of the Supreme Court on its civil case violated requirements of Article 429 of the Civil Procedure Code (CPC), having assigned to itself obligations of Trial Court, not having besides power on it, having given assessment to the actual facts of the case, changed the judgment of appellate instance, as a result violated its right of judicial protection affirmed in article 60 of the Constitution.

The plenum of the Constitutional Court in connection with I. Aliyev's claim notes that the Constitutional Court on many specific considered cases formulated legal line item concerning bases, conditions and rules of hearing of cases in cassation and additional cassation productions.

In the Resolution of the Plenum of the Constitutional Court "About check of legality of the decision of Judicial Board on Civil Cases of the Supreme Court of the Azerbaijan Republic of July 11, 2003 in connection with A. A. Ibragimov's claim" of April 12, 2004 it was celebrated years: "The court of cassation instance checks correctness of application of regulations of substantive and procedural law from Appeal Court. The obligation of court of cassation instance consisting only in it clearly is traced in Articles 407.1. 4, 408.1.5 and 416 Civil Procedure Codes. According to article 407.2 of this Code, in the writ of appeal the reference to absence of proof of the facts of the case, not clarification of all actual circumstances having essential value for the conclusions of court, or on discrepancy stated in the decision and determination of conclusions to the actual facts of the case is not allowed.

This circumstance is limited to the answer to the questions raised in the claim concerning clarification of the facts of cassation production, including, without mentioning the main point, only legal side of question, that is about availability or lack of violations of the law in the appealed decision".

And as for bases and rules of hearing of cases in additional cassation production, the Plenum of the Constitutional Court considers it necessary to note once again that hearing of cases in additional cassation production, in fact, means their de novo review in cassation instance. The production which is carried out in the additional cassation as continuation of cassation production, despite availability of the specifics, cannot go beyond its limits.

According to the Resolution of the Plenum of the Constitutional Court "About compliance of the Resolution of the Plenum of the Supreme Court of the Azerbaijan Republic of February 1, 2002 to the Constitution and the laws of the Azerbaijan Republic in connection with Zalov's claim of Aydyn Gasanbal to ogl" of May 21, 2004, unlike Trial and Appeal Courts, case in cassation and additional cassation productions in essence is not considered, that is the new facts are not accepted, the actual facts of the case are not researched, the facts are not given legal treatment. In general, decision in case of substantive prosecution is possible only in that case when other facts other than the facts researched in courts of former instances are researched. Such power is conferred in the legislation only to Trial and Appeal Courts.

Such line item of the Constitutional Court is based on requirements of the civil and procedural legislation.

So, according to article 424.1 GPK, the Plenum of the Supreme Court considers cases only on legal issues.

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