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

of June 29, 2007

Concerning Article 1179.2 of the Civil code of the Azerbaijan Republic, articles 15 and 18-1 of the Law of the Azerbaijan Republic "About notariate"

Name of the Azerbaijan Republic

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

with participation of the court secretary I. Ismaylov,

legal representatives of the subjects interested in private constitutional production, the employee of Surakhansky district court of the city of Baku T. Geydarov, the assistant manager by department of the administrative and military legislation of the Device of Millie of Majlis of the Azerbaijan Republic S. Mamedova

according to part VI of article 130 of the Constitution of the Azerbaijan Republic considered according to the procedure of special constitutional proceeding the constitutional case in connection with the appeal of Surakhansky district court of the city of Baku concerning interpretation of articles 15 and 18-1 of the Law of the Azerbaijan Republic "About notariate".

Having heard and having discussed the report of the judge R. Gvaladze, performance of legal representatives of the subjects interested in T. Geydarov and S. Mamedov's special constitutional proceeding on case, the Plenum of the Constitutional Court of the Azerbaijan Republic established:

The citizen M. Askerova, referring to Article 1179.2 of the Civil code of the Azerbaijan Republic (further - group of companies), appealed to Eni-Surakhansky municipality to certify its will. In response to the address the Eni-Surakhansky municipality reported that assurance of the will belongs to powers of Office of notary public, but not municipalities. Due to the refusal of Eni-Surakhansky municipality in assurance of the will of M. Askerov of the procedure provided by the civil and procedural legislation made the complaint in Surakhansky district court about the resolution and actions of local government bodies, their officials. During legal proceedings of M. Askerov, having regarded noted as restriction of implementation of rights and freedoms of man and citizen, showed the petition concerning the direction of the address to the Constitutional Court in connection with interpretation of articles 15 and 18-1 of the Law of the Azerbaijan Republic "About notariate" (further - the Law "About Notariate").

The Surakhansky district court appealed to the Constitutional Court with request to give interpretation of provisions of articles 15 and 18-1 of the Law "About Notariate" connected with assurance of the will.

The address was proved by the fact that in spite of the fact that Article 1179.2 of group of companies provides assurance of the will by local government bodies of places of absence of the notary, nevertheless, in article 1181 of this Code, persons equated to the notary in article 15 of the Law "About Notariate" are specified, it is told about the subjects performing notarial activities in public institutions, in Article 18 the notarial actions performed by officials of relevant organs of the executive authority are listed in Article 18-1 persons equated to the notary are specified, but do not provide implementation of this notarial action by local government bodies. In the address it is also noted that in the specified articles of the Law "About Notariate" given power are assigned to relevant organs of the executive authority. And it in practice of application of the right leads to emergence of disputes and misunderstanding.

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

According to part I of article 142 of the Constitution of the Azerbaijan Republic (dalee-Konstitution), local self-government is performed by municipalities. In the Constitution the organization of work of municipalities, their powers and guarantee of independence are precisely specified.

Along with the powers listed in the Constitution additional powers of legislative and executive power (part II of article 144 of the Constitution) can be delegated to local government bodies.

According to noted Constitution provision in article 1 of the Law of the Azerbaijan Republic "About the status of municipalities" it is specified that local self-government in the Azerbaijan Republic is such system of the organization of activities of citizens which allows them to perform the right of the independent and free solution of questions of local value within the law and to carry out according to part II of article 144 of the Constitution of the Azerbaijan Republic part of the state work for interests of local population.

Transfer to local government bodies by the legislative and executive authorities of some specific powers is not excluded also in the international documents.

For example, in Item 1 of Article 4 of the European Charter of October 15, 1985 it is said about local self-government that the main powers of local self-government are established by the Constitution and the law. However this provision does not exclude transfer to local government bodies according to the law of separate specific powers. According to Item 2 of this Article, self-government institutions in the limits established by the law are quite free in implementation of the initiatives concerning any question which is not excluded from their powers and not carried to powers of other authority. According to Item 3 of Article 4 of the Charter, the state shall assign implementation of the powers to other authorities shall be performed taking into account amount and nature of objective, and also requirements of efficiency and economy.

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