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

of July 18, 2008

About interpretation of article 109 of the Law of the Azerbaijan Republic "About courts and judges", article 73 of the Law of the Azerbaijan Republic "About the Constitutional Court" and articles 20.1.4 and 20.7 of the Law of the Azerbaijan Republic "About work pensions"

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

with participation of the court secretary V. Zeynalov,

representatives of the interested subjects - the judge of the Supreme Court of the Azerbaijan Republic A. Mirzaliyev, the employee of department of social laws of the Device Millie of Majlis of the Azerbaijan Republic M. Seid,

the expert - the acting as professor of Department of the civil and procedural, labor and environmental law of law department of the Baku state university, the doctor of jurisprudence M. Aliyev,

according to part IV of article 130 of the Constitution of the Azerbaijan Republic in proceeding in open court according to the procedure of special constitutional proceeding considered the constitutional case on request of the Supreme Court of the Azerbaijan Republic number 8-3/08 of May 12, 2008 concerning interpretation of article 109 of the Law of the Azerbaijan Republic "About courts and judges", article 73 of the Law of the Azerbaijan Republic "About the Constitutional Court" and articles 20.1.4 and 20.7 of the Law of the Azerbaijan Republic "About work pensions".

Having heard on case the report of the judge E.Mamedov, speech of representatives of the subjects interested in special constitutional proceeding and the expert opinion, having studied and having discussed case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic established:

Having made inquiry in the Constitutional Court, the Supreme Court of the Azerbaijan Republic specified that by amendments and changes made on October 19, 2007 to the Law of the Azerbaijan Republic "About courts and judges" and the Law of the Azerbaijan Republic "About the Constitutional Court" it is fixed that provision of pensions of the former judges who reached retirement age or became disabled people before achievement of this age is performed according to the Law of the Azerbaijan Republic "About work pensions".

With respect thereto in the solution of the questions connected with provision of pensions of judges there was uncertainty.

So, in initial edition of part five of article 109 of the Law "About Courts and Judges" which became effective since June 10, 1997 it was specified that pension in the amount of 80 percent of their official pay rate on the last place of employment is provided to the former judges who reached retirement age after term of office.

The provisions connected with provision of pensions after entering into this Law of changes are given on June 20, 2003 in the following type: "Pension in the amount of 80 percent of their average monthly salary within any five years on the last place of employment is provided to the former judges who reached retirement age after term of office, and subsequent change in the wages rise happens taking into account this amount. Provisions of part five of this Article concern the former judges who were working before carrying out appointments according to this Law and reached at that time retirement age".

The change made to the Law afterwards, on June 14, 2005 the words "Pension after Term of Office" in Article are replaced with the word "Pension".

Thus, persons holding judicial position after 1997 and also the former judges who were working before the appointments which are carried out according to the Law "About Courts and Judges", and reached at that time retirement age found the right to provision of pensions in the amount of 80 percent of the average monthly salary which they received as the judge on the last place of employment within any five years. At the same time it is fixed that subsequent changes in the wages rise will be charged from this amount.

However other changes made to the Law "About Courts and Judges" on December 30, 2005 the provisions concerning provision of pensions of judges are given in the following edition: "To the former judges who worked judges at least 5 years and reached retirement age depending on work term on judicial position, pension is granted in the following procedure:

* to the former judges who worked judges of 5 years - in the amount of 45 percent from their average monthly salary in 5 years on judicial position;

* to the former judges who worked judges from 5 to 10 years - in the amount of 45 percent from their average monthly salary for any 5 years on judicial position with the allowance in the amount of 2 percent from their average monthly salary for every year of their judicial years of service over 5 years;

* to the former judges who worked judges from 10 to 15 years - in the amount of 55 percent from their average monthly salary for any 5 years on judicial position with the allowance in the amount of 5 percent from their average monthly salary for every year of their judicial years of service over 10 years, subsequent changes in the wages rise concern the pension size provided that it will not exceed 80 percent of the specified average monthly salary".

The last amendments and changes made to the Law "About Courts and Judges" on October 19, 2007, parts five and the sixth Article 109 were excluded from it, and Article is added with part five of the following content: "Provision of pensions of the former judges who worked judges at least 5 years and reached retirement age or became disabled people before achievement of the specified age is performed according to the Law of the Azerbaijan Republic "About work pensions".

Thus, amendments and changes made to the Law "About Courts and Judges" on December 30, 2005 and on October 19, 2007 fix, first of all, working condition on judicial position at least 5 years for possession of the right of provision of pensions as the judge. Besides, the procedure of payments of the size of the granted pension on certain interest rates depending on work term on judicial position is established. Though before the specified changes of the judge, irrespective of work term on judicial position, had rights of provision of pensions in the amount of 80 percent of their average monthly salary which they received as the judge on the last place of employment within any five years.

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