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

of February 4, 2005

About compliance of the resolution of Judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of February 5, 2004 to the Constitution and the laws of the Azerbaijan Republic in connection with S. Mamedov and S. Mamedova'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 (judge-speaker), E.Mamedova, I. Nadzhafova, S. Salmanova and A. Sultanov,

with participation of the court secretary I. Ismaylov,

applicant Salman Mamedov and his representative A. Gabilov

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 Salman and Samai Mamedov about compliance of the resolution of Judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of February 5, 2004 to the Constitution and the laws of the Azerbaijan Republic.

The constitutional case was considered without participation of the representative of defendant.

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

The claim of Salman and Samai Mamedov to Jamil Safikhanova and others about recognition invalid certificates on the right to legal inheritance and on the requirement of share of inheritance was rejected by the decision of Shamkirsky district court of August 28, 2002, and the counter action of Djamila Safichanowa about the Section and property boundary fence on which there are constructions registered addressed to the parties was satisfied.

The decision of district court was cancelled by the decision of the Judicial Board on Civil Cases (JBCC) of Appeal Court of the Azerbaijan Republic of September 17, 2003, the claim of Salman and Samai Mamedov was satisfied, and the counter action was rejected.

The judgment of appellate instance was changed by the resolution of Judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of February 5, 2004, the claim of Salman and Samai Mamedov was rejected, satisfied the counter action of D. Safikhanova, is decided about the Section of the parcel of land according to the decision of district court.

The additional writ of appeal of Salman and Samai Mamedov was not satisfied with the letter of the Chairman of the Supreme Court of the Azerbaijan Republic of June 24, 2004.

Salman and Samaya Mamedova, having recognized the court order of cassation instance illegal, ask to check its compliance to the Constitution and the laws of the Azerbaijan Republic. The claim is proved also by the fact that SKPGD of the Supreme Court, having exceeded the limits of the powers established by the law issued the new decree in essence.

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

The plenum of the Constitutional Court in many resolutions accepted according to claims specified that, according to the procedure established by the legislator, the court of cassation instance checks legality of the acts adopted by Appeal Court from the legal point of view that is checks correctness of use of material and procedural rules (Article 416 GPK). According to this provision of the law, the court of cassation instance does not consider the merits of the case. And in case of establishment of violation or the wrong application of regulations of substantive or procedural law the court of cassation instance can cancel the decision and determination of Appeal Court (Article 418.1. GPK). In this case the court of cassation instance can send case for new trial in Appeal Court (Article 417.0.3.).

SKPGD of the Supreme Court, having established abnormality of application of the law by judicial board of Appeal Court on civil case of Salman and Samai Mamedov, changed the decision of Appeal Court and actually accepted in essence the new resolution instead of again directing case to Appeal Court. This the court of cassation instance violated requirements of the above-stated articles GPK. And it, in turn, led to violation of implementation of the principle of judicial guarantee of the rights and freedoms of Salman and Samai Mamedov enshrined in article 60 of the Constitution of the Azerbaijan Republic.

It agrees specified, the Plenum of the Constitutional Court comes to such conclusion that the resolution SKPGD of the Supreme Court disputed by Salman and Samayey Mamedovymi in connection with discrepancy to requirements of article 60 of the Constitution, Articles 416, 417.0.3. and 418.1. GPK, it shall be declared invalid. And case shall be newly considered, according to this Resolution, according to the procedure, established by the civil and procedural legislation of the Azerbaijan Republic.

Being guided by parts V and IX of article 130 of the Constitution of the Azerbaijan Republic, Articles 52, of 62, of 63, 65-67 and 69 Laws of the Azerbaijan Republic "About the Constitutional Court", the Plenum of the Constitutional Court DECIDED:

1. Declare invalid the resolution of Judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of February 5, 2004 on civil case of Salman and Samai Mamedov to Jamil Safikhanova and others about recognition of certificates on the right to inheritance under the law invalid, about the requirement of share of inheritance, and also concerning Djamila Safichanowa to Salman and Samai Mamedov about procedure for use of the parcel of land in connection with discrepancy of part I of article 60 of the Constitution of the Azerbaijan Republic, to Articles 416, 417.0.3. and 418.1. Code of civil procedure of the Azerbaijan Republic. Consider case again, according to this Resolution according to the procedure, established by the civil and procedural legislation of the Azerbaijan Republic.

2. The resolution becomes effective from the date of publication.

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