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

of January 25, 2005

About compliance of Item 9 of part III and Item 7 of part IV of the Law of the Azerbaijan Republic "About entering of amendments and changes into some legal acts of the Azerbaijan Republic" No. 688-II QD of June 11, 2004 parts IX of article 130 of the Constitution of the Azerbaijan Republic

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, E.Mamedova (judge-speaker), I. Nadzhafova, S. Salmanova and A. Sultanov,

with participation of the court secretary I. Ismaylov,

agents of the parties, chief of staff of the Commissioner for Human Rights of the Azerbaijan Republic (Ombudsman) R. Ragimova and assistant manager department of the administrative and military legislation of the Device of Millie of Majlis of the Azerbaijan Republic of S. Kerimov,

according to part VII of article 130 of the Constitution of the Azerbaijan Republic in proceeding in open court according to the procedure of the constitutional judicial proceedings No. 688-II QD of June 11, 2004 of part IX of article 130 of the Constitution of the Azerbaijan Republic considered the constitutional case on compliance of Item 9 of part III and Item 7 of part IV of the Law of the Azerbaijan Republic "About entering of amendments and changes into some legal acts of the Azerbaijan Republic".

Having heard the report of the judge E.Mamedov, performance of agents of the parties of R. Ragimov and S. Kerimov on case, having considered and having discussed case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic established:

The law of the Azerbaijan Republic "About entering of amendments and changes into some legal acts of the Azerbaijan Republic" No. 688-II QD of June 11, 2004 made corresponding changes to some legal acts of the Azerbaijan Republic. Thereby the institute of production on newly discovered facts in connection with violations of the rights and freedoms in the civil and penal procedural legislation of the Azerbaijan Republic was founded.

This production provides recognition by the Constitutional Court of the Azerbaijan Republic of resolutions of the Supreme Court of the Azerbaijan Republic (further - the Supreme Court) or the court resolutions violating the right of appeal to the court, inappropriate to the Constitution and the laws of the Azerbaijan Republic (further the Constitution and the laws) as one of the bases for review of court resolutions on newly discovered facts in connection with violations of the rights and freedoms.

According to the additions made by the law and changes in the procedural legislation the Plenum of the Supreme Court considers cases only on the legal issues connected with execution of resolutions of the Constitutional Court of the Azerbaijan Republic and the European Court of Human Rights (Article 431.2. Civil Procedure Code of the Azerbaijan Republic, Article 456.2. Code of penal procedure of the Azerbaijan Republic).

The Commissioner for Human Rights of the Azerbaijan Republic (Ombudsman) made inquiry in the Constitutional Court of the Azerbaijan Republic (further - the Constitutional Court) in which he considers that the provisions fixed in Item 9 of part III and Item 7 of part IV of the Law of the Azerbaijan Republic "About entering of amendments and changes into some legal acts of the Azerbaijan Republic" No. 688-II QD of June 11, 2004 according to which consideration is provided by the Plenum of the Supreme Court of the Azerbaijan Republic of cases only on the legal issues connected with execution of resolutions of the Constitutional Court of the Azerbaijan Republic are artificial obstacles to execution of the resolutions of the Constitutional Court directed to recovery of the rights and freedoms and therefore asks to check compliance of these Items of part IX of article 130 of the Constitution of the Azerbaijan Republic.

With respect thereto request the Plenum of the Constitutional Court of the Azerbaijan Republic considers necessary to note the following circumstances.

(Ombudsman) of the Azerbaijan Republic lifted in request of the Commissioner for Human Rights question is directly connected with reflection in the current legislation of mechanisms of judicial protection of the human rights and freedoms affirmed in the Constitution of the Azerbaijan Republic and international treaties which supporter is the Azerbaijan Republic.

Along with the fact that this request belongs to judicial guarantees of the rights and freedoms of everyone taking the place among the fundamental rights it at the same time serves also refining of some basic principles of implementation of justice and the regulation of number of questions connected with the organization of effective judicial protection of the rights and freedoms. The request is important also from the point of view of clarity introduction in a row of questions which can arise when implementing production on newly discovered facts in connection with violations of the rights and freedoms.

According to article 6 of the European Convention on Human rights protection and fundamental freedoms everyone has the right in case of determination of its civil laws and obligations or by consideration of any criminal charge brought to him to fair public trial of case in reasonable time by the independent and just trial created based on the law.

For the comprehensive analysis of the questions raised in request, first of all, it is necessary to consider the provisions enshrined in the legislation on the right to fair legal proceedings, in particular, in Articles 60, of 125, of 127, 129-131 and other articles of the Constitution of the Azerbaijan Republic.

So, according to the constitutional guarantee of human rights and freedoms, the right of everyone to judicial protection is provided only with courts by permission of the corresponding disputes and conflicts by the principles and procedures established by the legislation.

Such universal values as rule of law and justice, the national right acting as declaration of will of the people in the country and also the principles of international law and legal proceedings accepted in modern democratic society are essential for courts.

Judges shall, without allowing any preference, discrimination, or bias, to perform the functions according to the law, accurately and in reasonable time, respecting all persons participating in case, allowing the distinctions provided by the law between them, observing the principles of equality of the parties and competitiveness, having comprehensively considered cases on the basis of proofs, to provide the right of everyone to fair legal proceedings.

The trust and respect for judicial authority from the public is guarantee of overall performance of court. Courts shall enjoy confidence not only the parties participating in specific legal proceedings but also trust of all society.

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