of May 27, 2008
About Article 228.5 of the Civil Code 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), E.Mamedova, I. Nadzhafova and A. Sultanova,
with participation of the court secretary I. Ismaylov,
representatives of the interested subjects - the judge of the Sumgayit Appeal Court of the Azerbaijan Republic Yu.Dzhavadov, the head of department of the Office of the Commissioner for Human Rights (Ombudsman) of the Azerbaijan Republic A. Safikhanla and the employee M. Mamedov, the main consultant of department of the administrative and military legislation of the Device of Millie of Majlis of the Azerbaijan Republic I. Dzhafarov, and the expert, the head of the department of the civil law of the Baku state university, Candidate of Law Sciences, associate professor R. Dunyamalyeva,
according to parts VI and VII of article 130 of the Constitution of the Azerbaijan Republic considered in proceeding in open court the constitutional case concerning Article 228.5 of the Civil Code of the Azerbaijan Republic.
Having heard the report of the judge R. Gvaladze on the appeal of the Sumgayit Appeal Court of the Azerbaijan Republic and request of the Commissioner for Human Rights (Ombudsman) of the Azerbaijan Republic, performance of legal representatives of the interested subjects and the expert, having researched case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic established:
According to Article 228.5 of the Civil Code of the Azerbaijan Republic (further - group of companies), members of the family (the husband, the wife, parents, children) of the owner of component of the residential building jointly living with it have right to use, equal with it, in living space. Members of the family of the owner of component of the residential building have the right to install to this residential building of the minor children. Installation of other family members (the husband, the wife) is allowed only with the consent of the owner. The right of these persons to use of component of the residential building remains also in case of the termination of the family relations with the owner. Right to use of members of the family of the owner of component of the residential building arises from the date of entry into force of this Code.
The Sumgayit Appeal Court, having appealed to the Constitutional Court of the Azerbaijan Republic (further - the Constitutional Court), asked to interpret expression the "consent of the owner" specified in the third offer of Article 228.5 of group of companies. The address was proved by the fact that in court practice there were difficulties in connection with application of this regulation as the legislation does not regulate procedure of noted provision.
The Commissioner for Human Rights (Ombudsman) of the Azerbaijan Republic (further - the Commissioner for Human Rights"), having appealed to the Constitutional Court with request, asked to check compliance of Article 228.5 of Konstitutsii Group of the Azerbaijan Republic (further" the Constitution").
The request was proved by the fact that the prediscretion in the disputed regulation of preserving right to use by premises component of the owner of component of the residential building and after the termination of the family relations with the owner limits to other family members (the wife, the husband) the property rights provided with articles 13 and 29 of the Constitution. In request it is also declared that specifying in this Article of emergence of the right of members of the family of the owner premises component from the date of entry into force of this Code contradicts part VII of article 149 of the Constitution.
Before resolving matter of substance, it should be noted that the Constitutional Court accepted resolutions concerning application of Article 228 of group of companies also earlier, and cleared up in a row questions.
So, the Constitutional Court in the resolution of July 27, 2001 "About interpretation of Article 228 of the Civil Code and article 123 of the Housing Code of the Azerbaijan Republic" came to conclusion that the disputes connected with legal relations on use of the residential building (apartment), which arose after September 1, 2001 shall be resolved according to rules of Article 228 of the Civil Code, and the disputes connected with the legal relations which arose before this date according to rules of article 123 of the Housing Code.
The plenum of the Constitutional Court in the resolution of September 26, 2007 according to R. Agalarov's claim in connection with Article 228.2 of group of companies noted that the property right differs from right to use in living space, at the same time came to conclusion that both rights are subject to providing being in a sense in proportion balanced.
In this resolution it is specified that if in one apartment there live family members (or persons equated to them), availability at one (or several) from them the property right to the apartment (including, rights to use by the apartment is possible), and at others right to use by the apartment. In case of the dispute resolution, arising between these persons, provisions of the current legislation of the Azerbaijan Republic concerning the nature of the property right and right to use by living space, their proportionality and implementation shall be considered.
The plenum of the Constitutional Court according to the legal line item in noted resolutions considers necessary to carry out the legal analysis of the interrelations which arose between the property right and right to use concerning subject of request and the address.
The legislator, proceeding from the constitutional principle of security of property and its protection by the state, established rules on right to use by component of the residential building in Article 228 of the operating Civil Code.
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