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

of February 21, 2005

About compliance of the resolution of judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of April 28, 2004 to the Constitution and the laws of the Azerbaijan Republic in connection with Sh. Agakishiyev's claim

Name of the Azerbaijan Republic

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

with participation of the court secretary I. Ismaylov,

applicant Sh. Agakishiyev and his representative A. Gabilov,

according to part V of article 130 of the Constitution of the Azerbaijan Republic according to the procedure of the constitutional judicial proceedings in proceeding in open court of court according to Agakishiyev's claim of Shamistan Mohamed Oglou considered the constitutional case, about compliance of the Constitution and to the Laws of the Azerbaijan Republic of the resolution of judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of April 28, 2004.

Based on the letter of the chairman of the Supreme Court of the Azerbaijan Republic of January 12, 2005, No. 8 m-419\2 n-2, the constitutional case was considered without participation of the agent of the party of the defendant.

Having heard the report of the judge E.Mamedov, speech of the representative applicant A. Gabilov, having studied and having discussed case papers the Plenum of the Constitutional Court of the Azerbaijan Republic ESTABLISHED:

From the actual facts of the case established by courts of law it is visible that the resolution of the Local commission on agrarian reform (MKAR) sat down Ibrahim Gadzhily Tovuzskogo of the area of September 20, 2001, the cowsheds belonging to Tovuz sovkhoz and the parcel of land adjoining to them in 0,30 of hectare were sold to Sh. Agakishiyev on MKAR and the working group of the Tovuzsky district Commission on agrarian reform determined by representatives (further RKAR) the price of 14.000.000 (fourteen million) manats. On October 15, 2001 Tovuzsky RKAR, having considered that the property is sold out at cut price, decided to repeal the resolution MKAR and to hold its new sale. This resolution was sent to MKAR of the settlement of Ibragimgadzhila Tovuzskogo of the area only on December 29, 2001. The chairman of MKAR answered with the letter of January 4, 2002 that in view of the expiration more than three months since sale of property the new sale of cowsheds is impossible. Based on the resolution RKAR dated the same number were changed structure of MKAR, the chairman and the chief accountant of this commission are exempted from posts. Then on January 12 the new structure of MKAR decided to sell, the cowsheds belonging to Tovuz sovkhoz and the parcel of land adjoining to it in 2,5 of hectare (is 2,2 hectares more sold to Sh. Agakishiyev) the Tovuz-Baltic Ltd companies for 30.000.000 (thirty million) manats. On February 15, 2002 the registration certificate on transfer of this property to property of the company was granted.

Sh. Agakishiyev appealed to Tovuzsky district court with the claim to illegal actions of MKAR "Tovuz". In the claim the request for suppression of illegal actions of staff of the Tovuz-Baltic Ltd company and cancellation of the resolution MKAR "Tovuz" on illegal repeated sale of the property belonging to it is stated to other person. The action for declaration was left the judgment of December 26, 2002 without satisfaction.

Of May 14, 2003 the petition for appeal of Sh. Agakishiyev was satisfied with the decision of judicial board on civil cases of Appeal Court of the Azerbaijan Republic (dalee-SKPGD Appeal Court), are cancelled the decision of Tovuzsky district court of December 26, 2002, the resolutions of Tovuzsky RKAR of October 15, 2001 and MKAR "Tovuz" of January 12, 2002 concerning Sh. Agakishiyev and also the registration certificate granted the Tovuz-Baltic Ltd companies is nullified.

The resolution of judicial board on civil cases of the Supreme Court of the Azerbaijan Republic (dalee-SKPGD the Supreme Court) of September 17, 2003, partially satisfied the writ of appeal of the Tovuz-Baltic Ltd company, the solution of SKPGD of Appeal Court of May 14, 2003 is cancelled and case is returned on new appeal trial.

The petition for appeal was rejected by the solution of SKPGD of Appeal Court of December 05, 2003, and the decision of Tovuzsky district court of December 26, 2002 is left without changes.

The writ of appeal of Sh. Agakishiyev was rejected by the resolution SKPGD of the Supreme Court of April 28, 2004. By the letter of the Chairman of the Supreme Court of July 6, 2004 to him it was told that due to the lack of the bases of need to direct the claim according to the procedure of the additional cassation for consideration on the Plenum there is no Supreme Court.

Referring to the fact that in the resolution SKPGD of the Supreme Court of April 28, 2004 interpretation of number of provisions of the Laws of the Azerbaijan Republic "About bases of agrarian reform" and "About reform of sovkhozes and kolkhozes" are incorrectly applied and this and by that its rights affirmed in the Constitution of the Azerbaijan Republic are violated, Sh. Agakishiyev asks to check compliance of this resolution of the Constitution and to the laws of the Azerbaijan Republic, to declare it invalid and to recover the violated rights.

In connection with the claim Plenum of the Constitutional Court considers it necessary to note following.

According to the new provisions established in the Constitution of the Azerbaijan Republic, connected with bases of the state in agrarian and industrial complex, also as well as in all other industries of economy of the Azerbaijan Republic, radical restructurings were performed. For clarification of the questions disputed in Sh. Agakishiyev's claim there is need of the analysis of the laws and other regulatory legal acts adopted for establishment of limits of powers of the local and district commissions on agrarian reform in connection with the agrarian transformations which are carried out in recent years, and in particular with the Section and sale of the property which is in use (on balance) sovkhozes and kolkhozes, between persons having the right from it the share.

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