of June 8, 2006
About check of compliance of the resolution of Judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of March 2, 2005 to the Constitution and the laws of the Azerbaijan Republic in connection with A. Salimzade's claim
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, S. Gasanova, B. Garibov, R. Gvaladze (judge-speaker), E.Mamedova, I. Nadzhafova and A. Sultanova,
with participation of the court secretary I. Ismaylov,
representatives of the applicant A. Salimzade N. Allakhverdiyev, T. Gasymov and I. Odzhagverdiyev,
defendant's representative, judge of the Supreme Court of the Azerbaijan Republic A. Kalbaliyev,
specialists, teacher of department of the civil law of the Baku state university M. Tairov and main consultant of the Baku department of the State land and cartographic committee of the Azerbaijan Republic V. Gasanov,
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 legal proceedings the constitutional case on check of compliance of the resolution of Judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of March 2, 2005 to the Constitution and the laws of the Azerbaijan Republic in connection with A. Salimzade's claim.
Having heard on case the report of the judge R. Gvaladze, speech of representatives of the applicant N. Allakhverdiyev, T. Gasymov and I. Odzhagverdiyev, the defendant's representative A. Kalbaliyev, specialists M. Tairov and V. Gasanov, having studied and having discussed case papers, the Plenum of the Constitutional Court established:
The seasonal dacha No. 1218 "A" in the territory of the settlement of Nardaran of Baku, according to the lease agreement No. 30819 of April 5, 2002, was leased to A. Salimzada for a period of 10 years, and the seasonal dacha No. 1214 since 1978 is in M. Ibragimbekov's use and the country house in its private property. These seasonal dachas are next, the left side barrier of the seasonal dacha of M. Ibragimbekov at the same time is the right side barrier of the seasonal dacha of A. Salimzade if to look in the direction of the Caspian Sea.
The letter of Consolidation of development and operation of small-scale farmings and construction (further the SHOUTING and EDH) for No. 977 of May 19, 2004 to M. Ibragimbekov this the permission for construction of the year-round observation deck the meter 6,2 length, width of 5,5 of meters to the North from northeast part of its dacha.
After that letters of this Consolidation for No. 1026 of June 1, 2004 and No. 1113 of June 18, 2004 to M. Ibragimbekov in addition this the permission for construction of the year-round observation deck length of 14,0 of meters, width of 5,5 of meters to the North from northeast part of its dacha.
A. Salimzade, having counted the letters issued by Consolidation, illegal, having specified that the construction begun by M. Ibragimbekov adjoins to barrier of its seasonal dacha from the sea, along with what limits its movement to the seashore, also interferes with its right to have a rest freely on the seashore, appealed to Sabunchinsky district court of Baku with the action for declaration about recognition of the above-named letters illegal and prohibition of the begun construction.
A. Salimzade's claim was rejected by the decision of Sabunchinsky district court of July 2, 2004.
The decision was proved by the fact that the permission for construction of the year-round observation deck was this to M. Ibragimbekov on legal causes, the site allocated to it for this purpose has no relation to the site which is in A. Salimzade's lease, and the construction on this site of construction does not violate right of possession of the last.
Of August 10, 2004 the above-stated resolution of the Trial Court was cancelled by the decision of Judicial board on civil cases of Appeal Court of the Azerbaijan Republic (further SKPGD), A. Salimzade's claim is satisfied, letters the SHOUTING and EDH of May 19, on June 1 and on June 18, 2004 are recognized as illegal, continuation of construction works by M. Ibragimbekov was forbidden and it is decided to demolish the made construction at his expense.
As opposed to the conclusions to which the Trial Court came the Appeal Court determined that permission is provided to M. Ibragimbekov on construction of the observation deck by the body which does not have on it power, the construction works which are carried out by M. Ibragimbekov were performed outside the seasonal dacha belonging to it, together with barrier of the seasonal dacha of A. Salimzade from the sea, as a result along with traffic restriction of the last to the seashore, also obstacle to its right became free to have a rest.
The court of cassation instance the resolution of September 29, 2004 because case was considered by Appeal Court with violation of terms, stipulated in Clause 367.2 Codes of civil procedure of the Azerbaijan Republic (dalee-GPK) and by that M. Ibragimbekov's right to judicial protection was limited, cancelled the above-stated decision of this court and sent case for new judicial review.
The judgment of appellate instance of November 19, 2004 the decision of Sabunchinsky district court, and the resolution SKPGD of the Supreme Court of the Azerbaijan Republic of March 2, 2005 the judgment of appellate instance were left without changes.
With the letter of the chairman of the Supreme Court of June 24, 2005 the additional writ of appeal of A. Salimzade about removal of case at consideration of the Plenum of the Supreme Court of the Azerbaijan Republic, was not satisfied.
In the claim addressed in the Constitutional Court, A. Salimzade specified that Trial and Appeal Courts, considering dispute, not having taken into account that permission to maintaining construction before its seasonal dacha was issued the SHOUTING and EDH, not having on that powers, and, according to requirements of the legislation, this site can be transferred to use or to lease only in the state purposes by the decision of relevant organ of the executive authority, than violated requirements of part 1 of Item 2 of Article 46 of the Land code of the Azerbaijan Republic, Article 180.1 of the Civil code. According to the specified letters, M. Ibragimbekov conducted construction works together with barrier of its seasonal dacha, blocked the door leaving to the sea thereby having limited the right to freely use the sea. According to the applicant, the court of cassation instance which left illegal and unreasoned decision of Appeal Court in force violated the right to judicial protection affirmed in article 60 of the Constitution of the Azerbaijan Republic.
In connection with the claim A. Salimzade Plenum of the Constitutional Court notes following.
Based on part I of article 60 of the Constitution of the Azerbaijan Republic judicial protection of its rights and freedoms is guaranteed to everyone.
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