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

of December 3, 2004

About compliance of the resolution of Judicial Board on civil cases of the Supreme Court of the Azerbaijan Republic of September 24, 2003 to the Constitution and the laws of the Azerbaijan Republic in connection with S. G. Ibragimova's claim

Name of the Azerbaijan Republic

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

with participation of the court secretary I. Ismaylov,

applicant S. Ibragimova,

according to part V of article 130 of the Constitution of the Azerbaijan Republic according to the procedure of the constitutional production on proceeding in open court considered on the basis of the claim Page of Ibragimova the constitutional case on compliance of the resolution of Judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of September 24, 2003 to the Constitution and the laws of the Azerbaijan Republic.

Despite the advance written notice of time and the venue of judicial session the constitutional case, due to the lack at meeting of the response party representative of the Supreme Court, was considered without its participation.

Having heard the report of the judge R. Gvaladze, performance of the applicant S. Ibragimova on case and having considered case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic ESTABLISHED:

The decision of Geokchaysky district court of April 23, 2003 Sakhiby Ibragimova's claim concerning Geokchaysky district department of the Ministry of Economic Development and G. Guliyev for recognition of the agreement was rejected by invalid.

The specified decision of district court was cancelled by the decision of Appeal Court of the Azerbaijan Republic of July 10, 2003, the sale and purchase agreement of the non-residential site located in the building at the address: Geokchay, Ulitsa M. Rasulzade, house 123, the prisoner at auction between Department for management and privatization of state-owned property of the Ministry of Economic Development and G. Guliyev was nullified, the certificate on sale of state-owned property to legal entities and physical persons granted to G. Guliyev was cancelled. It was decided to return to G. Guliyev paid by him as the cost of non-residential site 26.659.000 manat.

The judgment of appellate instance is changed by the resolution of Judicial board on civil cases of the Supreme Court of September 24, 2003, S. Ibragimova's requirement is rejected. In the claim addressed in the Constitutional Court, S. Ibragimov including the resolution of cassation instance illegal and unreasonable, asks to check its compliance to the Constitution and civil procedurally the legislation. The claim was also proved by the fact that the court of cassation instance, having exceeded the authority, actually accepted the new resolution under the pretext of change of the judgment of appellate instance.

Without mentioning merits of case, the Plenum of the Constitutional Court in connection with S. Ibragimova's claim notes the following.

On the disputed case of SKPGD of the Supreme Court, violating requirements of Article 416 of the Civil Procedure Code, gave assessment to the actual circumstances and proofs which are available in case.

So, the appellate instance proved the judgment by the fact that S. Ibragimova's right to participate at auction and to acquire the object offered for auction was broken as in contradiction to requirements of the legislation information on exposure to auction of the disputed square was not published in the Mulkiyet newspaper, and the auction was held unknown to S. Ibragimova.

SKPGD of the Supreme Court, based on the Mulkiyet newspaper, to the provided to time of cassation consideration, unknown Appeal Court owing to what it was not given assessment, considered wrong the above-stated conclusion of Appeal Court.

SKPGD of the Supreme Court also violated requirements of articles 418.1 and 417.0.3 GPK. According to these regulations, the court of cassation instance unlike Appeal Court cannot accept the new resolution on the merits of the case. In case of establishment of violation or the wrong application of regulations of substantive and procedural law the court of cassation instance can cancel or change the decision and determination of court appeal ин to the station. In case of cancellation of the above-stated court resolutions the court of cassation instance can send case in Appeal Court for new trial.

Actually, on civil case of S. Ibragimova of SKPGD of the Supreme Court accepted in essence the new resolution instead of, having established the wrong application of regulations of substantive and procedural law by board of Appeal Court, to return case to Appeal Court on new trial.

With respect thereto the Plenum of the Constitutional Court came to conclusion that the court order of cassation instance disputed by S. Ibragimova contradicts Articles 416, 417.0.3 and 418.1 GPK. It, in turn, violated S. Ibragimova's right to judicial protection of the rights and freedoms of everyone fixed by article 60 of the Constitution of the Azerbaijan Republic.

On the basis of the above the Plenum of the Constitutional Court considers that the resolution of Judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of September 24, 2003 in the matter of S. Ibragimova concerning Geokchaysky district department of the Ministry of Economic Development and G. Guliyev about recognition of the agreement invalid shall be declared invalid in communication of discrepancy to article 60 of the Constitution of the Azerbaijan Republic and to requirements of Articles 416, 417.0.3 and 418.1 GPK. According to this resolution, case shall be reconsidered according to the procedure and the terms determined by the civil and procedural legislation of the Azerbaijan Republic.

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