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

of February 15, 2005

About compliance of the resolution of judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of March 3, 2004 to the Constitution and the laws of the Azerbaijan Republic according to the claim A.A. Mamedjyarova

Name of the Azerbaijan Republic

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

with participation of the court secretary I. Ismaylov,

applicant A. Mamedjyarov

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 judicial proceedings the constitutional case on compliance of the resolution of judicial board on civil cases of the Supreme Court of March 3, 2004 on civil case in G. Gamdamov's claim of the Constitution and the laws of the Azerbaijan Republic.

According to the letter No. 2n-14 of the vice-chairman of the Supreme Court of the Azerbaijan Republic of January 13, 2005, the constitutional case was considered without participation of the representative of defendant.

Having heard the report of the judge F. Babayev, performance of the applicant A. Mamedjyarov on case, having considered and having discussed case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic ESTABLISHED:

The resolution of judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of March 3, 2004, the decision of judicial board on civil cases of Appeal Court of the Azerbaijan Republic of October 30, 2003 in A. A. Mamedjyarov's claim to G. Gamdamov for eviction from the apartment was cancelled and the enforcement proceeding on case is stopped.

In the claim submitted in the Constitutional Court, A. Mamedjyarov including the resolution of judicial board on civil cases of the Supreme Court of the Azerbaijan Republic illegal and unreasonable, asks it to cancel. The claim was proved by the fact that the decision of Agsuinsky district court of February 9, 1996 was timely directed to execution with respect thereto the Agsuinsky district court and department of legal executives and judicial supervisors (further the SI and SN) Shamakhinsky district drew up the relevant statements.

Apparently from case papers, the decision of Gabalinsky district court of April 6, 1995 according to G. Gamdamov's statement the claim for prolongation of term of acceptance of heritable property, for recognition was rejected by the structure completed sale and purchase agreements of the applicant with A. Mamedjyarov and about determination of right of possession, established fact that the owner of the one-storey two-room apartment house of 43 sq.m., in the village of Chukhuryurd of Shamakhinsky district A. Mamedjyarov is.

The property right of the applicant A. Mamedjyarov to this apartment house is recognized by the decision of Agsuinsky district court of February 9, 1996, the claim for G. Gamdamov's eviction together with family from this apartment was satisfied.

Based on this decision the writ of execution was issued to the applicant A. Mamedjyarov, at the same time on March 18, 1996 the writ of execution was sent to destination to Shamakhinsky district court for execution. But as G. Gamdamov interfered with execution of the decision, about it legal executives drew up the relevant statements.

In May, 2003 A. Mamedjyarov demanded from legal executives of eviction of G. Gamdamov from the apartment again, but G. Gamdamov interfered with execution of the decision and appealed to Gobustansky district court with the claim to actions of the SI and SN group of Shamakhinsky district.

G. Gamdamov's claim to actions of officials of the SI and SN group of Shamakhinsky district was rejected by the decision of Gobustansky district court of August 19, 2003 behind groundlessness.

The judicial board on civil cases of Appeal Court of the Azerbaijan Republic the decision of October 30, 2003 left the decision of Gobustansky district court of August 19, 2003 without change, without having satisfied the petition for appeal of G. Gamdamov.

Having considered G. Gamdamov's claim judicial board on civil cases of the Supreme Court of the Azerbaijan Republic, based on Article 73 of the Civil Code which was valid till September 1, 2000 and Article 358 of the Code of civil procedure of the Azerbaijan Republic, cancelled the decision of judicial board on civil cases of Appeal Court of October 30, 2003 and stopped enforcement proceeding on case.

In connection with A. Mamedjyarova Plenum Konstitutsionny Sud Azerbaydzhanskoy Respubliki's claim notes the following.

In the Azerbaijan Republic the property is inviolable and is protected by the law. Everyone has the property right. Everyone in property can have personal property and the real estate. Nobody can be dispossessed, differently as by a court decision (articles 13 and 29 of the Constitution of the Azerbaijan Republic).

The property right as one of fundamental human rights includes such rights as ownership, use and the order of property in the procedure established by the law and methods. Respect the civil laws and help with their protection, is obligatory for all public authorities, local government bodies, political parties, public organizations, the organizations of labor unions, physical persons and legal entities. The constitution of the Azerbaijan Republic guarantees judicial protection of its rights and freedoms (Article 60).

In our country protection of the civil laws is performed by courts, according to the compliance of accessory of cases and powers, the rights and obligations of specific degrees of jurisdiction determined in the law.

According to Article 73 of the Civil code of the Azerbaijan Republic which was valid till September 1, 2000 (further - the invalid Civil code), aggregate term (claim term) for protection of the rights was determined by the claim of person which rights were violated in three years.

According to Article 358 of the Code of civil procedure of the Azerbaijan Republic which was valid till September 1, 2000 (further - the invalid Code of civil procedure), the judgment which took legal effect on case in which one of the parties is the citizen can be performed forcibly within three years, and on all other cases if the legislation does not determine other procedure, within one year.

Apparently from contents of these Articles, Article 73 of the invalid Civil code determines aggregate claim terms, and article 358 of the invalid Civil procedural code terms of submission of executive documents for execution.

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