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

of February 3, 2005

About compliance of the resolution of Judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of June 4, 2004 to the Constitution and the laws of the Azerbaijan Republic in connection with N.F.Nurulov and Z.Z.Nurulova's claim

Name of the Azerbaijan Republic

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

with participation of the court secretary I. Ismaylov,

the applicant N.F.Nurulov and the representative Z.Z.Nurulova of A. Mamedov considered in proceeding in open court according to part V of article 130 of the Constitution of the Azerbaijan Republic according to the procedure of the constitutional judicial proceedings the constitutional complaint case of N.F.Nurulov and Z.Z.Nurulova about compliance of the resolution of Judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of June 4, 2004 to the Constitution and the laws of the Azerbaijan Republic.

Based on the letter of the vice-chairman of the Supreme Court of the Azerbaijan Republic of January 13, 2005 for No. 2n-15 the constitutional case was considered without participation of the representative of defendant.

Having heard the report of the judge F. Babayev, speech of the representative A. Mamedov, having studied and having discussed case papers, the Plenum of the Constitutional Court ESTABLISHED:

Claimants Nail and Zeytuna Nurulovy took a legal action with the action for declaration about eviction from the apartment to the address the city of Baku, the settlement of Patamdar, Ulitsa Myaktabli, the yard 6017, the house 14, the apartment 14, received by them based on the decision No. 1886 of June 13, 1994 of Executive Committee of Council of People's Deputies of Sabailsky district, displaced persons from the Zangelansky district Magerramova Ali Mukhtar ogla and the members of his family who occupied their apartment in 1996 during their departure to the city of Kazan to visit the sick grandmother.

The claim of applicants to A. Magerramov and others about eviction from the apartment was satisfied with the decision of Sabailsky district court of the city of Baku of November 3, 2003, and providing defendants with other temporary living space was entrusted to the Executive authority of Sabailsky district.

The specified decision was left by the resolution of Judicial board on civil cases of Appeal Court of the Azerbaijan Republic No. 1265 of March 11, 2004 without changes.

The above-stated decision of Appeal Court was left by the decision of Judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of June 4, 2004 without change, and execution of the decision was postponed until release of Zangelansky district from occupation.

In the letter of the chairman of the Supreme Court of August 23, 2004 it is specified lack of the bases for the direction of the additional writ of appeal of Nurulov on the Plenum of the Supreme Court.

Applicants in the claim submitted in the Constitutional Court ask to check compliance of the resolution of Judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of June 4, 2004 to the Constitution and other laws of the Azerbaijan Republic.

The claim is proved by the fact that the judgment of cassation instance violates the rights of applicants affirmed in articles 33 and 43 of the Constitution by the Azerbaijanian of the Republic about inviolability of home and the rights to housing.

The plenum of the Constitutional Court of the Azerbaijan Republic in connection with the claim notes the following.

In article 33 of the Constitution of the Azerbaijan Republic it is specified that everyone has the right to inviolability of home. According to requirements of article 43 of the Constitution of the Azerbaijan Republic nobody can be illegally deprived of the dwelling occupied by him. The main essence of the specified guarantees consists that except for the cases established by the law or the judgment nobody can be installed by force to the apartment against the will of the owner of the apartment. One of fixed assets of providing the rights and freedoms enshrined in the Constitution of the Azerbaijan Republic is the justice performed by courts. According to article 60 of the Constitution judicial protection of its rights and freedoms is guaranteed to everyone. On the substance of articles 125 and 127 of the Constitution these guarantees are not limited to providing the right of each person to appeal to the court and consideration of the case, but also require carrying out equality of participants, impartial, fair with providing, factual and according to the law of legal proceedings, including corresponding judicial execution within the limits established by the law.

The legislation of the Azerbaijan Republic provided the necessary legal mechanism within judicial system, having determined powers, the rights and obligations of courts of different instances, for the purpose of non-admission of leaving in force of illegal and unreasonable court resolutions.

One of important conditions of effective and real justice is connected with execution of judgments. According to article 129 of the Constitution, the decisions made by court are passed on behalf of the state and their execution is forced.

In too time the legislation, considering the rights and legitimate interests of the parties, also provides institute of suspension and delay of execution of court resolutions.

According to article 231.1 GPK the judge considering case based on the statement of persons participating in case, considering their financial position and other facts of the case having the right to otstrochit execution or its execution in parts, and also to change methods and procedure for its execution. Apparently from being of Article, the judge of the first or appeal instances considering case has the right to resolve issue of delay of execution of the judgment.

In too time according to article 16 of the Law "About Execution of Judgments" within enforcement proceeding according to the plaintiff's declaration or the debtor the legal executive can postpone executive actions for the term of no more than 10 days. In other cases the legislation finds possible provision of delay of execution of the judgment only by the judge who considered case according to article 231.1 GPK.

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