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

of February 1, 2005

About compliance of the resolution of Judicial board on cases on economic disputes of the Supreme Court of the Azerbaijan Republic of January 8, 2004 to the Constitution and the laws of the Azerbaijan Republic in connection with the claim of the head of rural farm "Found fault" with A. Dzhafarov

Name of the Azerbaijan Republic

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

with participation of the court secretary I. Ismaylov,

applicant A. Dzhafarov and his representative R. Akhmedov

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 complaint case of the head of rural farm "Found fault" with A. Dzhafarov about compliance of the resolution of Judicial board on cases on economic disputes of the Supreme Court of the Azerbaijan Republic of January 8, 2004 to the Constitution and the laws of the Azerbaijan Republic.

According to the letter of the acting as the chairman of the Supreme Court of the Azerbaijan Republic of December 6, 2004 No. 2n-414 8i-11/04, the constitutional case was considered without participation of the response party representative of the Supreme Court.

Having heard the report of the judge E. Mamedov, performance of the applicant A. Dzhafarov and his representative R. Akhmedov on case, having studied and having discussed case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic ESTABLISHED:

"Found fault" with rural farm (dalee-SFH "Found fault"), having appealed with the claim to Local economic court No. 3 of the Azerbaijan Republic concerning Sabirabad-pambyg open joint stock company (further JSC Sabirabad-pambyg), asked to recover debt in the amount 129.340.000 (hundred twenty nine million three hundred forty thousand) manat which arose according to the agreements of the countershare of crude cotton signed in 1995-1996 and to direct execution to property of the defendant. The action for declaration was granted by the decision of Local economic court No. 3 of June 27, 2001.

The decision became effective due to the lack of the claim during the procedural term established by the legislation. However because of non-execution of the decision from JSC Sabirabad-pambyg, on the basis of representation of group of judicial supervisors and legal executives by the decision of Local economic court No. 3 of February 27, 2003 it was seized some vehicles and agricultural machinery belonging to JSC Sabirabad-pambyg. On February 5, 2003 (in 1 year 7 months from the date of adoption of the judgment) Department of Management and privatization of state-owned property of the Ministry of Economic Development of the Azerbaijan Republic (further - Department of property), having made the petition for appeal, asked about cancellation of the decision of Local economic court No. 3 of June 27, 2001 because of violation of the rights connected with management and content of the state share in the authorized capital of JSC Sabirabad-pambyg in connection with attraction it to case despite availability in state-owned property 29, 02% of shares of JSC Sabirabad-pambyg, and adoption of the new decision with reconsideration of the case with its participation. The petition for appeal was returned by determination of this court of February 6, 2003 without consideration.

Without having agreed with determination, the Department of property appealed to Economic Court of the Azerbaijan Republic with the petition for appeal. SFH "Found fault", without having accepted the petition for appeal of Department of property, proved the line item by the fact that it in connection with sending the judgment to persons participating in case in the time of JSC Sabirabad-pambyg established by the law bears responsibility for the notification of shareholders about this decision.

The economic Court of the Azerbaijan Republic the determination of March 25, 2003 left without changes determination of Local economic court No. 3 of February 6, 2003, without having satisfied the claim of Department of property.

The line item of Economic Court of the Azerbaijan Republic consisted that according to Article 357 of the Code of civil procedure (dalee-GPK) on the decisions and determinations accepted by Trial Courts of the Azerbaijan Republic, except as specified which did not take legal effect, provided by this Code, the petition for appeal by the parties, the third parties, applicants for special proceeding and interested persons can be made. The decision of Local economic court No. 3 of June 27, 2001 was sent by means of mail of JSC Sabirabad-pambyg, acted as the defendant in civil case. JSC Sabirabad-pambyg did not make the petition for appeal within 1 month from the date of delivery (obtaining) to it the judgments as it is stipulated in Article 360 GPK. However the Department of property made the petition for appeal, 1 year 7 months later after decision making of court. According to Article 361.1.1.3. GPK, the petition for appeal was made after fixed term, and according to Articles 130.1. and 130.3. this Code after the procedural term established by the law, the right to legal proceedings also shall be considered as passed.

After that Department of property, having addressed to Judicial board on cases on economic disputes of the Supreme Court (dalee-SKDES the Supreme Court), asked about cancellation of the judgment of appellate instance and the direction of case on new appeal trial.

With SKDES of the Supreme Court the resolution of May 22, 2003, having satisfied the writ of appeal of Department of property, cancelled determination of Economic Court of the Azerbaijan Republic of March 25, 2003 and again sent case to Appeal Court.

After trial de novo determination of Economic Court of the Azerbaijan Republic of August 6, 2003 cancelled determination of Local economic court No. 3 of February 6, 2003, and the petition for appeal made by Department of property about the decision of this court of June 27, 2001 is recognized as possible and accepted to production. The court also passed the decision on involvement of Department of property as the third party who is not declaring the independent requirement regarding dispute over civil case.

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