of October 27, 2004
About compliance of acts of Judicial Board on Civil cases of the Supreme Court of the Azerbaijan Republic to the Constitution and the laws of the Azerbaijan Republic in connection with S. N. Mamedova's claim
Name of the Azerbaijan Republic
Plenum of the Constitutional Court of the Azerbaijan Republic as a part of A. Sultanov (chairman), F. Babayeva, B. Garibov, R. Gvaladze, E. Mamedova (judge-speaker), I. Nadzhafova and S. Salmanova,
with participation of the court secretary I. Ismaylov,
representative applicant R. Orudzhev
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 Sona Niftull of gyza of Mamedova about determination compliance of October 3, 2003 and the resolution of November 5, 2003 of Judicial Board on Civil Cases of the Supreme Court of the Azerbaijan Republic to the Constitution and the laws of the Azerbaijan Republic.
According to the letter of the vice-chairman of the Supreme Court of the Azerbaijan Republic of August 11, 2004 No. 8m-84 the constitutional case was considered without participation of the representative of defendant.
Having heard the report of the judge E. Mamedov and speech of the representative applicant R. Orudzhev on case, having studied and having discussed case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic ESTABLISHED:
Apparently from materials of the constitutional case, E. T. Abdullaeva on the basis of the credit agreement No. 165 of May 29, 1998 got for 3rd monthly penal from Russian Credit commercial Bank (in this time - "United Credit Bank") the credit for the amount 30. 000 US dollars with condition under 40% per annum. In the same day it as the guarantee of repayment of the loan drew up in notarial procedure with the employee of Russian Credit commercial Bank (further - Bank) F. R. Muradov the sale and purchase agreement of the apartment No. 25 of the house No. 2 belonging to it down the street of Aliyarbekov of the city of Baku.
On the eve of the specified events against E. T. Abdullaeva according to statements of different persons two criminal cases in connection with availability in its actions of signs of fraud were brought, and on January 29, 1999 in management of police of Sabailsky district these cases were consolidated, after completion on them preliminary inquiry are sent for consideration in court of Sabailsky district. Court, considering manifestations of mental disturbance of E. T. Abdullaeva, during preliminary inquiry because of the direction her at first on forced treatment under intensive observation, subsequent its transfer into forced treatment under regular observation, and then on treatment on the general beginnings, and also purposes of the judicial examination connected with passing of hospitalization by it suspended proceeedings so far (after the beginning of the constitutional production E. T absence was revealed. Abdullaeva in hospital and the court of Sabailsky district issued the decree on her search with renewal of criminal proceeding).
During preliminary inquiry for the purpose of providing the requirements connected with damage of the apartment E. By T. Abdullaeva it was seized. After removal of this arrest by investigating body on April 10, 1999 on the basis of earlier signed sale and purchase agreement transition of the apartment addressed to the employee of Bank F finally was drawn up. R. Muradova the appropriate registration certificate by Management of technical inventory count and registration of the property rights of the executive authority of the city of Baku is also granted (dalee-UTIR).
On April 20, 1999 the specified apartment was sold on the basis of the sale and purchase agreement of S. N. Mamedova approved in notarial procedure. After that its property right to the apartment was drawn up in the procedure provided by the law from UTIRPSNVGB; from the money received from sale of the apartment 35. 625 US dollars were directed to debt repayment of E. T. Abdullaeva before Bank on the credit and percent, and 34. 375 US dollars are handed over in management of police of Sabailsky district.
Approximately in two years her daughter K. A. Miriyeva living together with E. T. Abdullaeva filed a lawsuit the action for declaration about recognition invalid sale and purchase agreements and cancellation of the registration certificate for the reason that the apartment was sold by mother without its consent on the basis of forgery documents.
The claim was not satisfied with the judgment of Sabailsky district of October 25, 2001. On February 18, 2002 the decision of Sabailsky district court was cancelled by the decision of Judicial Board on Civil Cases of Appeal Court of the Azerbaijan Republic (dalee-SKPGD Appeal Court), K. A. Miriyeva's claim was satisfied. Also in the decision to the parties it was explained that each of them can take a legal action in general procedure with the action for declaration with the requirement about collection on the other side of everything given according to the nullified sale and purchase agreement. On this civil case of July 17, 2002 the solution of SKPGD of Appeal Court is left by the resolution of Judicial Board on Civil Cases of the Supreme Court of the Azerbaijan Republic (dalee-SKPGD the Supreme Court) without changes.
Afterwards S. N. Mamedova filed a lawsuit the action for declaration to E. T. Abdullaeva and F. R. Muradov with the requirement about return of payments and compensation of the caused damage in connection with cancellation of the sale and purchase agreement nullified. During judicial review F. R. Muradov declared that the bargain was concluded for the sake of appearances, and actually with respect thereto case the order was given by management of Bank. Considering this circumstance, the Bank was involved in judicial review as the new defendant in case.
Claims of S. N. Mamedova were partially satisfied by the judgment of Yasamalsky district of March 17, 2003, and in its advantage at the Bank which actually acted as the seller in the agreement money on the amount 92 was collected. 500 US dollars compensated in case of purchase and sale of the apartment, and 48. 500 US dollars spent for repair construction works from E. T. Abdullaeva in view of loss of legal source of the income-18. 000 US dollars.
The judgment of Yasamalsky district was partially changed and determined by the solution of SKPGD of Appeal Court of August 29, 2003 that for benefit of S. I. Mamedova from Bank the amount in the amount of 48 is subject to collection. 567 US dollars, spent for repair construction works, from E. T. Abdullaeva in connection with loss of legal source of the income are subject to collection the amount in the amount of 17. 225 US dollars.
The bank and E. T. Abdullaeva made the writ of appeal about this decision.
The petition of Bank was satisfied with determination of SKPGD of the Supreme Court of October 3, 2003 and execution of the solution of SKPGD of Appeal Court of August 29, 2003 before completion of cassation production was suspended. And on November 5, 2003 SKPGD of the Supreme Court issued the decree on change of this decision.
This resolution SKPGD of the Supreme Court established:
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