ON BEHALF OF AZERBAIJAN REPUBLIC
DECISION
OF THE PLENUM OF THE CONSTITUTIONAL COURT
OF AZERBAIJAN REPUBLIC
On complaint lodged by R.A.Aslanova concerning verification of conformity of the decision of the Plenary Session of Supreme Court of Azerbaijan Republic of March 24, 2004 to laws and Constitution of Azerbaijan Republic
July 26, 2004 Baku city
The Plenum of the Constitutional Court of Azerbaijan Republic composed of Chairman F.Abdullayev, Judges F.Babayev, B.Garibov, R.Gvaladze (Reporter Judge), E. Mammadov, I. Najafov, S. Salmanova and A. Sultanov,
joined in the proceedings by the Court Clerk I. Ismayilov;
applicant, Rufat Ali Aslanov and his representative Z. Mammadova
in accordance with Article 130.5 of the Constitution of Azerbaijan Republic has examined in open court session via the procedure of constitutional proceeding the constitutional case on complaint lodged by by R.A.Aslanova concerning verification of conformity of the decision of the Plenary Session of Supreme Court of Azerbaijan Republic of March 24, 2004 on Elkhan Tayyar Abbasov against Rufat Ali Aslanov, on the recognition of illegibility of the sale and purchasing contract, termination of the registration documents and counter claim of Rufat Ali Aslanov against Elkhan Tayyar Abbasov and Isa Sariya Yagubova on loss of the right of ownership, removal from apartment was reviewed for compliance to laws and Constitution of Azerbaijan Republic.
Based on the letter of the Chairman of Supreme Court of Azerbaijan Republic of July 25, 2004 the constitutional case has been examined without participation of respondent party.
Having heard the report of Judge R. Gvaladze, applicant’s representative Z. Mammadova and having studied the materials of the case, Plenum of the Constitutional Court
DETERMINED AS FOLLOWS:
In accordance with decision of Sabayil District Court of Baku from November 8, 2002, the apartment sale and purchasing contract by and between Elkhan Tayyar Abbasov and Rufat Ali Aslanov and invalidity of the registration certificates was satisfied, the counter claim of R. Aslanov against E. Abbasov and S. Yagubova on loss of the rights of property ownership and removal from the apartment was rejected.
Board on Civil Cases of the Appeal Court of Azerbaijan Republic in its decision from March 3, 2003 has cancelled the decision of the Sabayil District Court of Azerbaijan Republic from November 8, 2002, rejecting the claim of E. Abbasov against R. Aslanov on cancellation of the sale and purchasing contract, registration certificate and satisfying the counter claim of R. Aslanov.
In accordance with decision of Board on Civil Cases of the Supreme Code of Azerbaijan Republic from April 30, 2003 the above decision of the appeal instance court was canceled, and case was directed for another review under appeal procedures.
In accordance with decision of Board on Civil Cases of the Appeal Court of Azerbaijan Republic from August 6, 2003 the decision of the Sabayil District Court from November 8, 2002 was cancelled the claim of E. Abbasov was rejected, and R. Aslanov’s counter claim was satisfied.
In accordance with decision of Board on Civil Cases of the Supreme Code of Azerbaijan Republic from November 7, 2003 the decision of the appeal instance court from August 6, 2003 was left unchanged.
In accordance with decision of the Plenary Session of the Supreme Court from March 24, 2004 the decision of Board on Civil Cases of the Supreme Code of Azerbaijan Republic from November 7, 2003 and decision of the Board on Civil Cases of the Supreme Court of Azerbaijan Republic from August 6, 2003 was left unchanged, claim of E. Abbasov was satisfied, and contract No. 137733, 137734 by and between E. Abbasov and R. Aslanov on sale and purchasing of apartments at 11/1 Huseyn Javid avenue and 11/15 Huseyn Javid Avenue, of Baku city and the registration certificate issued on the basis of these contracts to R. Aslanov on July 17, 2002 to be cancelled, and the counter claim of R. Aslanov against E. Abbasov and S. Yagubova was rejected.
In his complaint R. Aslanov has requested the cancellation of the decision of the Plenary Session of Supreme Court as illegal and ungrounded. The complaint was explained by the fact that the Plenary Session of the Supreme Court has implemented the authorities of the first instance court in contradiction with provisions of Articles 424 and 429 of the Civil Procedures Code, and although was not entitled to look into the essence of the case, has changed the decision of the appeal instance court and made the new decision. By this it violated his rights for court justice and property rights stipulated under the Constitution of Azerbaijan Republic.
Plenary Session of the Constitution Court of Azerbaijan Republic has noted the following.
Article 60 of the Constitution of Azerbaijan Republic stipulated everybody’s right for court justice protection of his human rights and freedoms. The main idea behind the provision is that every court shall only act with its level of authority stipulated under the legislation. This requirement is also stipulated under provisions of Article 6 of the European Convention on Human Rights and Main Freedoms.
For avoidance of the remaining in force of illegal and ungounded court decisions, the mechanism is provided within the court justice system legislation of Azerbaijan Republic, providing the description of authorities, rights and responsibilities of various court instances.
It shall be noted, Civil Procedures Court of Azerbaijan Republic, which provides the reflection of the rights stipulated under the Constitution and Internaitonal Treaties, also has provisions for guarantee of the fair court justice for violated civil rights.
Three stage court system stipulated under the Civil Procedures Court of Azerbaijan Republic provides the mechanism for indifferent, fair, legal and grounded settlements of civil disputes. The authorities of each court instance are stipulated specifically in the Civil Procedures Code.
In accordance with the decision of the Plenary Session of the Constitution Court from May 21, 2004 "" On review of compliance with the Constitution and legislation of Azerbaijan Republic of the Decision of the Plenary Session of Supreme Court of Azerbaijan Republic from February 1, 2002 regarding the claim of Aydin Hasanbala Zalov”, different from first and appeal instance court, cassationa and additional cassation are not entitled to review the case on essense, thus new evidences are not accepted, factual conditions of the case are not investigated, and no legal assessment is provided for evidences. In general, the review of the essence of the case and making the decision is only allowed when in addition to facts investigated in the previous court instance other facts are investigated. This authority is provided only to the first and appeal instance courts.
Article 424 of the Civil Procedures Code of Azerbaijan Republic reflects the basis of case review by the Plenary Session of the Supreme Court of Azerbaijan Republic. In accordance with Article 424.1 of the Civil Procedures Code the Plenary session shall only review the cases on legal issues. Article 424.2 defines the basis for termination of the cassation instance court decisions.
Authorities of the Plenary Session of the Supreme Court stipulated under Article 429 of the Civil Procedures Code of Azerbaijan Republic include also the complete or partial cancellation of the decision of the cassation instance court and related decision of the appeal instance court, as well as direction of the case to the appeal instance for additional review (Civil Procedures Code-429.0.3).
From the text of this Article the conclusion can be drawn that responsibility of the cassation instance court only stipulates the review for the correct application of only material and procedural norms and making the decision on the basis of these findings.
On the case of R. Aslanov, from the decision of Plenary Session of the Supreme Court it is observed that it has cancelled the decisions of the cassation and appeal instance court, but instead of directing the case for additional review to the appeal instance court has made the decision on case essense, violating the provisions of Article 429.0.3. of the Civil Procedures Code.
In accordance with above, the Plenary Session of the Constitution Court has drawn the decision, that violation of provisions of Articles 424 and 429 of the Civil Procedures Code by Plenary Session of the Supreme Court, as cassation instance court has resulted in the violation of rights of R. Aslanov for fair court justice on protection of rights and freedoms, as per Article 60 of the Constitution of Azerbaijan Republic.
In accordance with above, the Plenary Session of the Constitution Court hereby decides, that the decision of the Plenary Session of the Supreme Court from March 28, 2004 shall be considered as cancelled, and the relevant aspect of the case shall be reviewed additionally in accordance with procedures of legislation..
Using the guidance of parts V and IX of Article 130 of the Constitution of Azerbaijan Republic, Articles 52, 62, 63, 65-67 and 69 of the law of Azerbaijan Republic “On Constitution Court” the Plenary Session of the Constitution Court of Azerbaijan Republic
DECIDED:
1. Decision of the Plenary Session of the Supreme Court of Azerbaijan Republic from March 24, 2004 made under the claim of Elkhan Tayyar Abbasov against Rufat Ali Aslanov, on the recognition of illegibility of the sale and purchasing contract, termination of the registration documents and counter claim of Rufat Ali Aslanov against Elkhan Tayyar Abbasov and Isa Sariya Yagubova on loss of the right of ownership, removal from apartment shall be considered as null and void on the basis of contradictions to Article 60 of the Constitution of Azerbaijan Republic, and Articles 424.1 and 429 of the Civil Procedures Code of Azerbaijan Republic and the case shall be revised in order determined by civil procedural legislation.
2. The decision of the Constitutional Court of Azerbaijan Republic comes into force from the date of its publication.
3. The decision is subject to publication in the "Azerbaijan", “Respublika”, “Xalg gazeti”, “Bakinsky rabochiy” newspapers and “Bulletin of the Constitutional Court of Azerbaijan Republic”.
4. The decision is final and cannot be cancelled, changed or interpreted by any body or official.
Chairman Farhad Abdullayev
