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

of May 31, 2006

About check of compliance of the resolution of Judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of December 28, 2004 to the Constitution and the laws of the Azerbaijan Republic in connection with S. Aliyeva's claim

Name of the Azerbaijan Republic

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

with participation of the court secretary I. Ismaylov,

applicant S. Aliyeva and her representative K. Aliyev,

according to part V of article 130 of the Constitution of the Azerbaijan Republic Salatyn Alesker of gyza 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 Judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of December 28, 2004 to the Constitution and the laws of the Azerbaijan Republic in connection with Aliyeva's claim. The constitutional case was considered without participation of defendant.

Having heard the report of the judge A. Sultanov, performance of the applicant and her representative on case, having studied and having discussed case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic established:

From the facts of the case established by courts it is visible that two rooms (further - disputable property) from three constituting 3/24 part of the apartment house No. 41 (further - the apartment) became matter in issue down the street to M. Senani, Baku. This apartment since 1956 was addressed to V. Bagdasarova, on April 14, 1972 I. Bagiryan purchased it and on May 24, 1989 sold to G. Aliyeva, and the last sold on May 24, 1995 to T. Aliyev. According to the sale and purchase agreement of December 15, 2000, the declarant purchased this apartment from T. Aliyev and on January 26, 2001 the Baku municipal government of technical inventory count and registration of property right to it issued the registration certificate.

B. Iskenderov, having taken a legal action with the action for declaration of December 22, 2003, specified that in 1969 he purchased two rooms from three which are in S. Aliyeva's property from I. Bagiryan and, having risen on passport accounting, lived in this apartment with the family, however did not register purchase and sale that his son E.Iskenderov remains there registered, asked about recognition of the purchase and sale agreement with I. Bagiryan of rather disputable property, cancellation of the registration certificate addressed to S. Aliyeva and issue, according to share, the new registration certificate.

B. Iskenderov's claim was satisfied with the decision of Narimanovsky district court of February 5, 2004.

The Trial Court proved the decision by the fact that B. Iskenderov purchased disputable property from I. Bagiryan in 1969, though was not owner, continuously and dobrosovetno performed for more than 30 years all obligations following from the property right and though several times in case of purchase and sale other room of the apartment was provided in agreements how one room because the purchase and sale agreement between I. Bagiryan and the claimant was not registered, the apartment in full, including the disputable property used by the last, was drawn up addressed to several persons, and, at last, addressed to S. Aliyeva.

Of April 21, 2004 the resolution of the Trial Court was left by the decision of Judicial board on civil cases of Appeal Court of the Azerbaijan Republic (dalee-SKPGD Appeal Court) without changes, the petition for appeal of S. Aliyeva is not satisfied.

Of July 14, 2004 the writ of appeal of S. Aliyeva was satisfied with the resolution of Judicial board on civil cases of the Supreme Court of the Azerbaijan Republic (dalee-SKPGD the Supreme Court), the judgment of appellate instance was cancelled, and case was sent for new appeal trial.

The solution of SKPGD of Appeal Court of September 30, 2004 resolution of the Trial Court, and the resolution SKPGD of the Supreme Court of December 28, 2004 the judgment of appellate instance were left without changes.

In the letter of the chairman of the Supreme Court of May 4, 2005 S. Aliyeva it was specified lack of the bases for consideration of the additional writ of appeal on the Plenum of the Supreme Court.

The declarant in the claim addressed in the Constitutional Court specifies that when considering the case by courts Articles 149.1 and 178.6 of the Civil code of the Azerbaijan Republic which are not subject to application were applied (further - the operating Civil Code), Articles 76, of 130, of 416, of 417, 418.1 and 418.3 Codes of civil procedure of the Azerbaijan Republic are incorrectly applied (dalee-GPK) and not taken into account the omission of term of limitation period. Its rights affirmed in Articles 29, of 60, 71 and 127 Constitutions of the Azerbaijan Republic (dalee-Konstitution) were as a result violated. The declarant asks to declare invalid the resolution SKPGD of the Supreme Court of December 28, 2004 in connection with its discrepancy to the Constitution and the laws and recoveries of the violated rights.

T. Aliyev who sold the disputed apartment of S. Aliyeva appealed to the Constitutional Court with the statement certified of notarial procedure and specified that the apartment consists of three rooms, since 1995 until the end of 2000 lived together with family there, and later sold this three-room apartment of S. Aliyeva.

The plenum of the Constitutional Court in connection with the claim considers necessary to note following.

Judicial protection of its rights and freedoms is guaranteed to everyone. Observe and protect the rights and freedoms of man and citizen affirmed in the Constitution is obligation of bodies of the legislative, executive and judicial authorities. Judges consider cases without prejudice, fairly, observing equality of participants, on the basis of the facts and according to the law (part I of Article 60, part I of Article 71 and part II of article 127 of the Constitution).

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