Document from CIS Legislation database © 2003-2024 SojuzPravoInform LLC

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

of March 9, 2005

About compliance of the resolution of Judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of April 7, 2004 to the Constitution and the laws of the Azerbaijan Republic in connection with S. A. Rasulova's claim

Name of the Azerbaijan Republic

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

with participation of the court secretary I. Ismaylov,

applicant S. Rasulova and her representative M. Aliyev

according to part V of article 130 of the Constitution of the Azerbaijan Republic considered in proceeding in open court the constitutional case in connection with the claim of the citizen S. Rasulova on compliance of the resolution of judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of April 7, 2004 to the Constitution and the laws of the Azerbaijan Republic.

In spite of the fact that the response party representative of the Supreme Court it was in advance in writing notified on time and the place of consideration of the case and for judicial session was not, the constitutional case was considered without its participation.

Having heard the report of the judge I. Nadzhafov, performance of the applicant and her representative in the constitutional judicial proceedings on case, having researched the provided case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic ESTABLISHED:

Apparently from the actual facts of the case established by courts, based on notarially certified sale and purchase agreement of September 1, 2001 Aleskerov Ismail Akber ogla sold the apartment to Rasulovy Sayeeda Abbas of gyza for 28.200.000 manat.

S. Rasulova received on August 22, 2002 the registration certificate confirming it the property right to this apartment in Management of technical inventory count and registration of the property rights of the city of Baku. After that I. Aleskerov, having taken a legal action with the action for declaration about recognition invalid the sale and purchase agreement and the registration certificate, specified that he did not sell S. Rasulova's apartment, and borrowed by agreement from S. Rasulova at interest 6.000 US dollars with the purpose to be borrowed together with the acquaintance commerce. The sale and purchase agreement of the specified apartment had formal character. Actually the apartment was pledged for the borrowed amount.

The above-stated claim of I. Aleskerov was satisfied with the decision of Hodzhalinsky district court of September 15, 2003, and the counter action of S. Rasulova is rejected. The court decided that in case of the conclusion of the sale and purchase agreement, declaration of will of the parties was not obligatory and sufficient, actually this contract between I. Aleskerov and S. Rasulova was signed as guarantee of the amount given for percent. The judgment exacts 5.600 US dollars in manats at the market rate from I. Aleskerov for benefit of S. Rasulova, and the sale and purchase agreement signed between them is nullified, the issued registration certificate addressed to S. Rasulova was cancelled.

The decision of Hodzhalinsky court was partially cancelled by the decision of judicial board on civil cases of Appeal Court of the Azerbaijan Republic of December 8, 2003, I. Aleskerov's claim concerning S. Rasulova and others about recognition of the sale and purchase agreement and registration certificate invalid was rejected, and the counter action was partially satisfied. The court decided to evict from I. Aleskerov together with family the apartment to the address of Baku, st. of Tabriz, the house 18, sq. 3, and in other part the decision of Hodzhalinsky court to leave without change.

The decision of appellate instance was changed by the resolution of judicial board on civil cases of the Supreme Court of the Azerbaijan Republic of April 7, 2004. It was decided to exact from I. Aleskerov 5.600 US dollars in manats at the market rate for benefit of S. Rasulova, and the sale and purchase agreement signed between them, and also to recognize the registration certificate issued addressed to S. Rasulova invalid. S. Rasulova's claim to I. Aleskerov for eviction from the apartment together with family and about compensation of moral and material damage was rejected.

In response to the additional writ of appeal of S. Rasulova the acting as the Chairman of the Supreme Court of the Azerbaijan Republic answered with the letter of August 10, 2004 that in view of discrepancy of arguments of the claim to Article 424 GPK removal at discussion of the Plenum of the Supreme Court is impossible.

The applicant in the address addressed in the Constitutional Court including the resolution of cassation instance illegal and unreasonable, asks to check its compliance to the Constitution and the laws of the Azerbaijan Republic.

In connection with the claim Plenum of the Constitutional Court notes following.

The providing rights and freedoms of man and citizen enshrined in the Constitution of the Azerbaijan Republic is the prime target of the state, at the same time is determined that the disputes connected with their violations are permitted by courts (Article 12 and 71).

The obligation of the state is rational to provide protection of the rights and freedoms requires availability of the legal mechanisms directed to elimination of miscarriages of justice when implementing justice.

The right of repeated appeal to the court is based on providing the rights and freedoms enshrined in the Constitution and, first of all, serves for elimination of miscarriages of justice. For same in the legislation procedural rules of check of legality and justification of court resolutions by higher degrees of jurisdiction in connection with application of new judicial productions and procedures are established.

The procedure for consideration of legal cases is specifically established in GPK. From the analysis of regulations of this code clearly that two directions of procedure for consideration of specific cases in judicial authorities differ. This consideration of the case, on the facts constituting claim basis and also check of the correct application of regulations of substantive and procedural law. Whereas Trial and Appeal Courts consider cases based on the facts, according to material and procedural precepts of law in essence, according to the procedure of the cassation are considered only according to legal issues. As subject of consideration of cassation instance draw up the court resolutions which took legal effect, in this instance the merits of the case are not considered, the facts of the case are not researched, new proofs are not accepted, and according to the available proofs the legal treatment is not given. In cassation procedure the acts adopted by appellate instance are checked that is observance of regulations of substantive and procedural law is checked.

Warning!!!

This is not a full text of document! Document shown in Demo mode!

If you have active License, please Login, or get License for Full Access.

With Full access you can get: full text of document, original text of document in Russian, attachments (if exist) and see History and Statistics of your work.

Get License for Full Access Now

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info

Effectively work with search system

Database include more 50000 documents. You can find needed documents using search system. For effective work you can mix any on documents parameters: country, documents type, date range, teams or tags.
More about search system

Get help

If you cannot find the required document, or you do not know where to begin, go to Help section.

In this section, we’ve tried to describe in detail the features and capabilities of the system, as well as the most effective techniques for working with the database.

You also may open the section Frequently asked questions. This section provides answers to questions set by users.

Search engine created by SoyuzPravoInform LLC.