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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE AZERBAIJAN REPUBLIC

of March 1, 2001

About compliance of Item 22 of Rules of compensation by the companies, organizations and organizations of damage to the workers who sustained injuries, occupational disease on duty, or to families of the workers who died for these reasons approved by the resolution of the Cabinet of Ministers of the Azerbaijan Republic of September 24, 1996 No. 129 of part three of Article 239 of the Labor code of the Azerbaijan Republic

Name of the Azerbaijan Republic

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

I. Ismaylov's secretary,

with participation of the legal representative of the requesting body, the judge of the Supreme Court A. Mirzaliyev, the legal representative of the defendant, the ranking officer of the Cabinet of Ministers of the Azerbaijan Republic Z. Meybalyeva, specialists: manager of legal department of Confederation of labor unions of Azerbaijan E. Efendiyev, the vice-chairman of Republican committee of labor unions of working power plants and the electrotechnical industry R. Ildarov, the head of department of information and statistics of the State inspectorate for work of the Ministry of Labour and Social Protection of the population M. Akhmedov considered the constitutional case connected with request of the Supreme Court of the Azerbaijan Republic of January 15, 2001 No. 5-1/2001 about compliance of Item 22 of Rules of compensation by the companies, organizations and organizations of damage to the workers who sustained injuries, occupational disease on duty or to families of the workers who died for these reasons approved by the resolution of the Cabinet of Ministers of the Azerbaijan Republic of September 24, 1996 No. 129 of part three of Article 239 of the Labor code of the Azerbaijan Republic

Having heard the report on this case of the judge R. Gvaladze, performance of agents of the parties of A. Mirzaliyev and Z. Meybalyeva, the reference of specialists E. Efendiyev, R. Ildarov and M. Akhmedov and having researched case papers, the Constitutional court of the Azerbaijan Republic determined:

In request the Supreme Court of the Azerbaijan Republic asks taking into account the arising difficulties in case of application in court practice of the mentioned Rule approved by the resolution of the Cabinet of Ministers of the Azerbaijan Republic of September 24, 1996 No. 129, to check compliance of Item 22 of these rules to Article 239 of the Labor code of the Azerbaijan Republic.

Due to the request official texts of Article 239 of the Labor code of the Azerbaijan Republic which authenticity is approved in Millie's Device of Majlis of the Azerbaijan Republic, and also the resolution of the Cabinet of Ministers of the Azerbaijan Republic of September 24, 1996 No. 129 and Item 22 of Rules of compensation by the companies, organizations and organizations of damage to the workers who sustained injuries, occupational disease on duty, or to families of the workers who died for these reasons are attached to case papers (further - Governed).

The constitutional court of the Azerbaijan Republic in connection with request notes following:

According to part one of Article 239 of the Labor code of the Azerbaijan Republic the employer guilty (fully or partially) of the accident which happened on production or in occupational disease, shall pay completely to the worker the damage caused owing to mutilation or violation of health in other form and also expenses of bodies of social insurance in connection with treatment, award of pension, benefits.

In part three of this Article it is specified that procedure, conditions and the amount of payments to the worker to whose health harm owing to production accident or occupational disease is done or to members of the family of the worker who died for this reason are established by the rules approved by relevant organ of the executive authority.

By Item 22 of the Rules approved by the resolution of the Cabinet of Ministers of the Azerbaijan Republic of September 24, 1996 No. 129 it is determined that in case of mass increase in the republic of tariff (official) salaries to workers, average earnings which undertake for calculation of the amount of the monthly and lump sum payments for damage issued in connection with labor mutilation on production are adjusted by the state or according to the procedure, established by the legislation, self-supporting or other guilty companies irrespective of form of their property.

According to part I of article 16 of the Constitution of the Azerbaijan Republic the Azerbaijani state cares for growth in prosperity of the people and each citizen, its social protection and worthy level of living.

It is provided in Article 25 of the Universal Declaration of Human Rights that each person has the right to such living standards, including food, clothes, the dwelling, medical care and necessary social servicing which is necessary for maintenance of health and welfare him both his families, and the right to providing in case of unemployment, diseases, disability, widowhood, approaches of old age or other case of loss of means of livelihood owing to circumstances.

As it is noted in Article 5 of the International Labor Organization Convention "About Compensation during the Labor Accidents", during the accidents which served as the reason of permanent disability or death, to persons or their relatives who were injured compensation it is performed in the form of periodical payments with condition of complete or partial payment, and by provision to authorized bodies of guarantees about its reasonable use in the form of lump-sum allowance.

Thus, provision of Item 22 of Rules about adjustment in case of stipulated by the legislation procedure mass increase in the republic of tariff (official) salaries are directed to workers of average earnings which undertake for calculation of the amount of the monthly and lump sum payments for damage issued in connection with labor mutilation on production according to the Constitution of the Azerbaijan Republic, other legal acts and also with rules of international law to strengthening of social security of the population.

From request it is also visible that the possibility of reduction of earlier appointed payments is not resolved during salary reduction and salary as a result of temporary suspension of productive activity or recession of the production rate in the companies.

In view of allocation of payments from the means which are created in the course of productive activity for the above-stated reasons these companies are not capable to perform earlier defined benefits and reduce its sizes. Persons who remained dissatisfied with it require judicially implementation of payments in earlier established size. However owing to not reflection of these questions in Rules, by hearing of cases in essence there were difficulties.

With respect thereto the Constitutional court notes that procedure, conditions of implementation and the amount of payments to the worker which health is damaged owing to production accident and occupational disease, or family of the worker who died for these reasons were found by the reflection in Article 239 of the Labor code of the Azerbaijan Republic, in the Section LX and Article 62 of the Civil code of the Azerbaijan Republic.

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