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

of December 14, 2006

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 the claim of Capital Bank Open joint stock company

Name of the Azerbaijan Republic

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

with participation of the court secretary I. Ismaylov,

representative of the applicant director of legal department of Capital Bank Open joint stock company M. Aliyev,

defendant's representative, judge of the Supreme Court of the Azerbaijan Republic A. Kalbaliyev,

according to part V of article 130 of the Constitution of the Azerbaijan Republic considered in proceeding in open court according to the procedure of the constitutional legal proceedings the constitutional case on check of 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 the claim of Capital Bank Open joint stock company.

Having heard the report of the judge R. Gvaladze, speech of the representative applicant M. Aliyev, the defendant's representative A. Kalbaliyev, having studied and having discussed case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic established:

The decision of local Economic Court No. 1 of the Azerbaijan Republic of June 28, 2001 the claim of Bulk Oil Distribution Lines Production association of the State Oil Company of Azerbaijan Republic to credit institution

Agrocredit private company, not being bank (further closed joint stock company - Agrocredit), and to the United universal joint stock bank (further - БУСБанк) about deduction 612.000.000 manat were rejected.

The decision of Economic Court of the Azerbaijan Republic of September 25, 2001 the resolution of the Trial Court was cancelled, decided to transfer claim to account of credit institution of Agrocredit Ltd.

Of December 27, 2001 the judgment of appellate instance was left by the resolution of Judicial board on cases on economic disputes of the Supreme Court of the Azerbaijan Republic (further SKDES of the Supreme Court) without changes.

The resolution of the Plenum of the Supreme Court of the Azerbaijan Republic of February 14, 2003 the above-stated resolution SKDES of the Supreme Court is changed, decided to hold from the account of BUSBANK (nowadays Capital Bank Open joint stock company) principal debt in the amount of 612.000.000 manats for benefit of Bulk Oil Distribution Lines Production Association, and the claim to credit institution of Agrocredit Ltd is rejected.

JSC Capital Bank in the claim addressed in the Constitutional Court of the Azerbaijan Republic specifies that the above-stated resolution of plenum of the Supreme Court violated its rights provided by articles 13 and 29 of the Constitution of the Azerbaijan Republic.

The claim is proved by the fact that the Plenum of the Supreme Court, having violated requirements of the procedural legislation, considered case more than in year after the court order of cassation instance, incorrectly interpreted the order of the Cabinet of Ministers of the Azerbaijan Republic No. 40s of February 21, 2000, in the resolution without reference to any regulatory legal act, having determined authorized fee to the operating assets, came to wrong conclusion. The applicant notes that the constituent share of Bulk Oil Distribution Lines Production association in the amount of 612.000.000 manat shall be withheld in the authorized capital of the former Industrial and investment incorporated bank from the account of Agrarian and industrial bank as, according to the act of delivery of July 27, 2000, this amount was transferred to this bank.

The applicant also reported that execution of the disputed resolution of the Plenum of the Supreme Court was termless is suspended on the basis of the letter of the Supreme Court, and he learned about the direction Economic Court of the resolution on execution in June, 2006 after receipt of writ of execution about deduction at JSC Capital bank of the amount in the amount of 612.000.000 manat. For the purpose of recovery of the rights he appealed to the Supreme Court with the statement on newly discovered facts, and further with the claim in the Constitutional Court.

From case papers and documents attached to the constitutional claim it is visible that though the legislation and does not provide suspension of execution of the resolution accepted by the Plenum of the Supreme Court the Supreme Court, the Supreme Court addressed the letter of May 27, 2003 No. 8m-3/2003 to Management of Judicial Supervisors and Legal executives of the Ministry of Justice of the Azerbaijan Republic with request for execution suspension on this case of the resolution of the Plenum of the Supreme Court of the Azerbaijan Republic. The copy of the letter was sent also to BUSBANK (JSC Capital Bank).

According to the letter, the above-stated resolution of the Plenum of the Supreme Court was not performed till June, 2006, and only on June 13, 2006 the Economic Court of the Azerbaijan Republic issued writ of execution about deduction forcibly at BUSBANK (JSC Capital Bank) of constituent share in the amount of 612.000.000 manat.

After this JSC Capital Bank appealed to the Supreme Court with the statement on newly discovered facts, however by the letter of the Chairman of the Supreme Court of October 31, 2006 it was reported that in connection with discrepancy of arguments of the statement to requirements of the law, and also the omission of the term specified in the legislation consideration of the claim in the Plenum of the Supreme Court is impossible.

And as for essence of the constitutional claim, the Plenum of the Constitutional Court notes following.

Apparently from the facts of the case established by Appeal Court, the Bulk Oil Distribution Lines Production association of State oil company was one of founders of Industrial investment incorporated bank, at different times transferred to Authorized capital of bank funds in the amount of for 612.000.000 manat.

By the order of the Cabinet of Ministers of the Azerbaijan Republic No. 40s of February 21, 2000 due to consolidation of capital assets and obligations Azerbaijani Agrarian and industrial commercial joint-stock, Joint-stock and investment and Savings banks it was created БУСБанк which 100% of shares belong to the state, according to item 4 of this order, the Ministry of state-owned property, the Ministry of Finance and National Bank it was entrusted to organize based on the Agrarian and industrial Management bank on problem debts and obligations of all three banks acting on the basis of the limited license.

According to item 4 of the order of the Cabinet of Ministers No. 40s of February 21, 2000, the order No. 65s of April 1, 2001 accepted the approved offers of the Ministry of Finance, the Ministry of state-owned property and National Bank on functioning of Agrarian and industrial joint stock bank with preserving organizationally legal form as Credit Institution of Agrocredit Ltd, and its Charter underwent state registration.

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