ON
BEHALF OF THE
DECISION
OF
THE PLENUM OF THE
OF
THE
On verification of conformity
of decision of the Judicial Board on Civil Cases of the Supreme Court of the Republic of Azerbaijan of 31 March 2006
to the Constitution and laws of the Republic of
Azerbaijan in connection with the complaint of R.Agalarov
26 September 2007 Baku city
Plenum of the Constitutional Court of the
with participation of the secretary V.Zeynalov,
applicant R.Agalarov
according to Article 130.5 of the Constitution of the Republic of
Azerbaijan examined
in open court session on constitutional proceedings the complaint of I.Rajabov
concerning verification of conformity of decision of the Judicial Board on
Civil Cases (JBCC) of the Supreme Court of the
The constitutional case was examined in the absence of the respondent
party
– representative of the Supreme Court of the
Having heard the report of Judge E.Mammadov, speech of R.Agalarov, the
complainant, and having considered materials of the case and having discussed
them, the Plenum of the
DETERMINED AS FOLLOWS:
As it is evident from the case materials, on 25.03.2005 R.Agalarov brought a suit to
Binagadi district court of
The suit was grounded on the fact that the disputed apartment was a
private property of the plaintiff on the basis of inheritance since his mother
died on
The respondent stated that for termination of her and her child’s right
to use the disputed apartment, the compensation corresponding to the market
value should be determined in such a way that would enable her to purchase a
renovated one-room apartment in the territory of Rasulzadeh Settlement of
Binagadi district or micro-districts 6, 7 or 8, or any other area nearby with
satisfactory communal conditions making it possible for the child to live in.
Otherwise she requested to make a decision on rejecting the suit.
Binagadi District Court by its decision of 28.04.2005 appointed judicial
technical expertise in the civil case. According to the opinion of the
Institute of Problems of Judicial Scientific-Research Expertise, Criminalistics
and Criminology of the Ministry of Justice of the Republic of Azerbaijan dated
09.06.2005, on the day of expertise, the market value of the disputed apartment
was established in the approximate amount of 218,124,000 (two hundred and
eighteen million and one hundred and twenty four thousand) manat.
Later, by suit of R.Agalarov the judicial proceedings were conducted and
the suit was rejected on the basis of the decision of Binagadi District Court
of 05.08.2005.
Having evaluated the evidences in the case the court held that since the
respondent moved to the disputed apartment after having married plaintiff’s son
on 03.07.1999, the legal relations between the parties emerged before
According to the decision of the JBCC of the Court of Appeal of
09.11.2005, R.Agalarov’s appeal complaint was not satisfied and the decision of
Binagadi District Court of 05.08.2005 was kept unchanged.
By the decision of the Supreme Court’s Judicial Board on Civil Cases of
the
In the reply of the Chairman of the Supreme Court to R.Agalarov’s complaint
submitted via the procedure of additional cassation it was stated that the
complaint had not been submitted to consideration of the Plenum of the Supreme
Court as it failed to comply with the requirements of Article 424 of the Civil
Procedure Code (hereinafter - CPC) of the Republic of Azerbaijan.
R.Agalarov addressed the Constitutional Court of the Republic of
Azerbaijan (hereinafter – the Constitutional Court) and asked to consider the
decisions of general courts void stating that the provisions of existing
legislation were not correctly applied by them, the judicial acts were issued in
violation of his right to property and right to court and those judicial acts
contradicted to Articles 13, 29, 60 and 71 of the Constitution of the Republic
of Azerbaijan (hereinafter – the Constitution) and Article 228.2 of the Civil
Code of the Republic of Azerbaijan.
According to applicant, the courts of general jurisdiction wrongly
referred to the decision of the Constitutional Court “On interpretation of Article
228 of the Civil Code and Article 123 of the Housing Code of the Republic of
Azerbaijan” of 27.07.2001, and did not adequately react to the violation on the
ground that the law had shortcomings and retained the dispute open and
unsolved. He stated that the court’s rejection of the complaint on the ground that
the housing legislation did not provide for compensation institute violates his
right to property and concluded that despite he had addressed the court as a
proprietor, he was not provided with satisfactory reply. The applicant believes
that despite the respondent continues to live permanently in her father’s apartment,
he will never be in position to dispose his property due to the mere fact of
her passport registration in the apartment and thus all his life he will be
deprived of the right to property.
The Plenum of the
Judicial dispute between R.Agalarov and E.Agalarova (Zeynalova) started
in 2005 and in that time there were two legal sources regulating the relations
of parties.
According to Article 123.1 of the Housing Code, when the proprietor of
the apartment brings his/her family members to his apartment, they have the equal
authority to use the residential area in the apartment (in the second part of
this Article this authority is mentioned as a right) if other reservation is
not the case at the moment of moving of the family members.
Article 228.2 of the Civil Code stipulates that the establishment of the
right to use of the component of residential building, the conditions of its
realization and termination are determined on the basis of the agreement
concluded with the proprietor and certified in public notary. In case of
absence of the agreement on termination of the right to use of the component of
residential building, this right can be terminated by court on the basis of proprietor’s
suit by way of payment the compensation in accordance with the market value.
Binagadi District Court, when dealing with the civil case launched by
R.Agalarov against E.Agalarova (Zeynalova) on termination of the right to use
of disputed apartment by paying the compensation and eviction from the
apartment, came to conclusion that in accordance with the decision of the Constitutional
Court “On interpretation of Article 228 of the Civil Code and Article 123 of
the Housing Code of the Republic of Azerbaijan” of 27.07.2001 the dispute had
to be solved on the basis of rules of Article 123 of the Housing Code and the suit
was rejected as the said Article, as opposed to Article 228.2 of the Civil Code,
did not provide for the possibility of termination of the right to use an
apartment after payment of compensation.
It should be noted that the decision of the Constitutional Court of
27.07.2001 was adopted on the basis of inquiry of the Supreme Court. The reason
for it was that the Housing Code and Civil Code differently regulated the use
of residential area and component of the residential building including
differences in their establishment and realization, and disputes arising in
practice of application of those legislative acts. The Constitutional Court,
having taken the ratione temporis of
the law, held that the disputes concerning the relations that arose after 1 September
2000 have to be solved in accordance with the rules of Articles 228.1 and 228.2
of the Civil Code and the disputes connected with relations established prior
to this date are to be solved in accordance with the rules of Article 123 of
the Housing Code.
The courts of general jurisdiction when dealing with the dispute between
R.Agalarov against E.Agalarova (Zeynalova) omitted the fact that the Constitutional
Court in its decision of 27.07.2001 on Article 123 of the Housing Code also
expressed the following legal position: “However, this Article without
determining the form of agreement between the parties and conditions of its
realization left this issue to the discretion of the parties and established
that the disputes on the rules of use of residential area and amount of
participation in expenses are to be solved by the court”.
In this regard it should be mentioned that the issue of termination of
the right to use the residential area is one of the issues connected with the
rules of using residential area. Moreover, it should be taken into account that
a judicial dispute between R.Agalarov and E.Agalarova (Zeynalova) derives from the
failure of the parties to agree about the termination of the right to use the
residential area owned by former bride’s father-in-law and the latter’s
application launched before the court. Solving this kind of issues in the court
is fully in line with the legal position of the
When family members (or persons equal to them) live in one apartment, it
is possible that one of them (or several of them) possesses the right to
property (including the right to use of the residential area) over the
apartment and the rest – only the right to use the residential area. In course
of consideration of the dispute among these persons, the nature of the right to
property and the right to use the residential area, their co-relation and
provisions of the legislation of the
Firstly, it should be particularly emphasized that the right to property
and the right to use the residential area are different legal categories.
The right to property, reflecting individual belonging of material goods,
has an important role in the system of economic rights and freedoms in the
general theory of human rights, international law acts (Article 17 of the
Universal Declaration of Human Rights, Article 1 of Protocol 1 to the European
Convention on protection of human rights and fundamental freedoms, etc.) and
fundamental human rights envisaged by the Constitution of the Republic of
Azerbaijan (Article 29).
The right to use residential area without taking into account the
proprietor’s will was reflected even in the Housing Code adopted on 08.07.1982.
At that time the
Since the
The right to property in the
Republic of Azerbaijan is not only a broad power of the proprietor reflected by
the law (to own the property that belongs to him, to use this property as she/he
wishes in accordance with the functions of the property and in accordance with
his/her needs, and to determine legal regime of the property by his/her will)
but also is the power, in the frame of the current legislation, to eliminate the
interference by third parties to his/her powers over the property guaranteed by
the state without damage to rights and lawful interests of others and to act on
his/her choice, and in accordance with his/her interests.
General provisions of the right to property, provisions about the right
to own, acquisition of the right to property, its realization, limitation and
loss, as well as types of this right are regulated by the Civil Code. The
provisions on protection of the right to property are reflected in the Civil
Code, the Criminal Code, the Code on Administrative Offences and some other
laws.
It should be emphasized that disposal of a property is possible by means
of concluding of transactions or by virtue of other legal acts. It should not
be overlooked that regulation of such transactions, including regulation of full,
consecutive and concrete norms of purchase and sale of a real property is envisaged
in the Civil Code.
The right to use residential area is an element of the right to home
that is normally described as the right to live in the apartment, house and
other relevant places. Despite the right to home is not factually recognized in
international law, it has been recognized in the legislation of the
However, it should also be mentioned that Article 43.1 of the
Constitution that reflects the right to home expresses it in a negative form (nobody can be
illegally deprived of his/her home). Part II of this Article guides the state
bodies for realization of the right to home, so that the state facilitates
construction of residential buildings and houses, and takes measures on
realization of citizens’ right to home.
The right to home is ensured by means of allocation from the state house
fund of residential areas usually via the order (queue, for some category of
citizens without queue) and by norms provided for by the law, as well as getting
residential areas on the conditions (rent, pro bono use, etc.) agreed with the
proprietor, or on the basis of payment (purchase and sale, change, etc.) or for
free (inheritance, gift, lottery, etc). In any case for establishment of the
right to home the rules envisaged in the provisions of housing legislation and
civil legislation in force should be observed.
Article 123.1 of the Housing Code stipulates that when the proprietor of
the apartment brings his/her family members to the apartment, their right to
equally use the residential area in the apartment would depend on the fact of
absence of other reservation at the moment of moving of the family members. However,
this Article does not determine the rules of the said use including conditions
and limits in course of its realization.
At the same time, this Article and the Housing Code in general does not
provide for a power of a third person when using the residential area owned by
other person to limit proprietor’s right to dispose his/her property.
Interpretation of provisions of the Housing Code contrary to the right
to property can lead to disparity with Article 13 (inevitability of the
property), 29 (the right to property), 71 (guarantees of human and citizens’
rights and freedoms), 147 (direct legal power of the Constitution) of the
Constitution, as well as Para 8 of the Transitional Provisions of the
Constitution (the provisions of laws adopted before the present Constitution entered into
force remain valid if they do not contradict the present Constitution).
It should be particularly mentioned that Article 29.4 of the
Constitution embodies two important legal guarantees of the right to property.
By the first guarantee, no one can be deprived of his/her property
without a court decision. It prohibits deprivation of the right to property
contrary to proprietor’s will by any state body or official referring to any
expediency or even law without court decision.
According to the second guarantee, the amortization of a property for
state and public needs can take place only after a fair compensation for its
value. Such a provision derives from the abovementioned international law norms
and was written in a spirit of respectful treatment of the right to property.
International law bodies that apply those norms in their decisions pay
particular attention to significance of main elements of the components of the
right to property.
For instance, the European Court of Human Rights in Marckx v. Belgium (13.07.1979) held that the right to dispose one’s
property constitutes a traditional and fundamental aspect of the right of
property.
In course of solving disputes on realization of the right to use
property and residential area in the
It should also be mentioned that Article 123 of the Housing Code, on the
one hand, does not prevent the proprietor from termination of the right to use
of family members and others and, on the other hand, does not exclude termination
of the right to use by paying compensation. Despite uncertainty in this Article,
it is possible that on the basis of the proprietor’s will, the termination of
the right to use the residential area is carried out by way of paying
compensation. If this will is not expressed, leaving the consideration of
termination of the right to use by way of compensation up to the user or a court
can lead to various approaches in practice.
With this regard, the position of the Plenum of the
Article 228.2 of the Civil Code in force from 1 September 2000, provides
that in case of absence of the agreement on the termination of the right to use
the component of a residential building, there is a possibility of termination
of such a right by way of paying compensation of a market value on the basis of
proprietor’s suit in court.
The
However, in order to clarify whether the norm ‘in case of absence of the
agreement on the termination of the right to use the component of a residential
building, there is a possibility of termination of such a right by the way of
paying compensation of the market value on the basis of proprietor’s suit in
court’ as envisaged in Article 228.2 of the Civil Code, can be applied to
settlement of disputes stemming from the relations established prior to its
adoption, the attention should be paid to some issues.
According to Article 2.1 of the Civil Code, the civil legislation of the
In its essence the housing legislation is one part of the civil legislation by
its nature. The Housing Code regulates the legal relations about allocation of
residential area, its use, termination of such use, managing the housing fund,
ensuring its maintenance, as well as strengthening the rule of law in the field
of housing. However, the Housing Code does not regulate the relations between parties
with regard to payment of compensation for termination of the right to use
residential area.
Apart from that, a number of civil law relations are of continuous nature,
and in this case the legislation of the
However, in such a case, realization of one of the main goals of this
Code, ensuring protection of rights and lawful interests of subjects of the
civil law, reflected in Article 1.2 of the Civil Code, is of great importance.
In case of collision between new and previous laws, one need to be
guided by Article 149.7 of the Constitution that provides for the possibility
of retroactivity of the normative legal acts that improve the legal situation
of natural and legal persons, eliminate or mitigate their legal responsibility.
It should also be taken into account that according to Article 7 of the
Civil Code, except the cases provided for by Article 149.7 of the Constitution,
civil law provisions can not be retroactive, and they are to be applied to
relations arising after their entry into force. If the application of
provisions of the civil legislation damages the subjects of civil law or
worsens the situation of these subjects, the civil legislation can not be
retroactive.
Along with that, it should not be overlooked that according to Article
11.1 of the Civil Code, if civil law relations are not directly regulated by
civil legislation or agreement between the parties, and there is no business
custom to be applied to them, those relations, if it does not contradict to their
substance, are subjected to application of civil law norms regulating similar
relations.
Analysis of the content of both Articles reveals that, besides the
exceptional cases, if Article 7 of the Civil Code reflects non-possibility of
application of the law to relations established after its adoption, Article
11.1 of the said Code in the enumerated concrete cases enables the application
of the civil law norms regulating similar relations.
Such an approach can, in accordance with Articles 1.2 and 11.1 of the
Civil Code, concern such norms of the existent civil legislation, which are
designed for relations that were not previously regulated by law and create
better regime for the participants of civil circulation, and ensure better
protection for rights and lawful interests of such persons.
By taking into account Article 11.1 of the Civil Code, the possibility
of application of the norm provided for by Article 228.2 of the Civil Code
(about termination of the right to use residential area by paying the
compensation) to relations that were established prior to it, but are of
continuous nature, supplements it if this does not contradict to the decision
of the Constitutional Court of 27.07.2001. In this decision, by taking into
account Article 7.1 of the Civil Code, the Constitutional Court expressed its
position as follows: ‘the disputes about relations that arose after 1 September
2000, have to be solved in accordance with the rules of Articles 228.1 and
228.2 of the Civil Code; and the disputes connected to relations established
prior to this date are to be solved in accordance with the rules of Article 123
of the Housing Code’. It transpires that the
It should be reiterated in this regard that Article 123.1 of the Housing
Code determines neither the order for use of apartment by family members of the
proprietor and other persons, nor its termination. As a result, the relations
in this field between the proprietor and these persons were not regulated, and
there was uncertainty with regard to the rights of both parties.
At the same time, it should be taken into account that in case when the
Housing Code does not provide for compensation for termination of the right to
use the residential area, the provision of the Civil Code which stipulated that
“in case of absence of the agreement on the termination of the right to use the
component of a residential building, there is a possibility of termination of
such a right by way of paying compensation of the market value on the basis of the
proprietor’s suit in court”, ensures better protection of the rights and lawful
interests of the parties.
As opposed to the provisions of the Housing Code, the institute of
paying a compensation for termination of the right to use the residential area
provided for by the Civil Code, opens a possibility for realization of the
rights of the proprietor over the property on the basis of the law and not by discretion
of the user, or a court. Despite the institute of compensation does not give
the right to user to demand division of the apartment, or payment of a part
from its value, it is not a mere termination of the right to use the residential
area; it also provides for the possibility of such a replacement that would
enable the user to live (at the expense of the proprietor) continuously and temporarily
in other place of similar condition compared to the previous place of living.
All these create more favourable legal regime for the realization of the rights
of parties.
Existence of the consent between the parties can be the ground for
building relations in line with requirements of the law. But if there is no
consent, it is absolutely important to regulate the relations on the basis of
law. For the relations to be treated as legal ones, it is necessary to regulate
them by means of a legal norm(s). In this case, the relations would differ from
each other by their structure, i.e. subjects, objects, subjective right and
legal duties. Last two elements create a legal content of the legal relations. This
determines the behaviour of the subjects by law in the limits provided for by
the law. When those elements do not overlap, it is possible that they are alike,
even if the identity of the legal relations is not the case.
Legal relations can not be self-regulating; there should be an objective
regulator for this. Establishment of the legal relations, their change and
termination is possible only on the basis of legal norms. There should always
be a reason-result bond between such norms and relations. Legal relations are
directed, systematized and their stability, sustainability and protection are
ensured as a result of influence of the norms.
It should be emphasized that the legislation can not fully embrace the
changes and general diversity of civil relations in society. Even if the
legislators attempt to adopt the legal norms that embrace all the cases and
regulate permanently developing legal relations, sometimes it is objectively
impossible. Sometimes there emerge such property and private non-property
relations which were not present at the moment of adoption of the relevant law,
or their presence was not taken into account when the legislator adopted that law.
In such a case, the practice of application of the laws reveals a gap in the
legislation. As a result, certain cases to be regulated are left aside from the
legal regulation due to the absence of a relevant norm.
Although the adoption of a missing norm is an ideal way for elimination
of the gap, according to Article 11.5 of the Civil Code, the lack of a legal
norm regulating civil law relations and its uncertainty may never be a ground
for the court to refuse to deal with the case.
Thus, the refusal by general jurisdiction courts to deal with the case
due to absence of a norm in housing legislation and factual refusal to deal
with the concrete dispute is unacceptable. Non-regulation of certain relations
by housing legislation, existence of civil relations that have the features of
civil law subject and existence of a norm regulating similar relations in civil
legislation may be taken as a basis for application of analogy of the law for
the purposes of eliminating the gap acting on behalf of the will of the state
in general.
Taking into account the aforementioned, the Plenum of the Constitutional
Court holds that the decision of the Binagadi District Court of 25.03.2005 (on
the civil case launched by R.Agalarov against E.Agalarova (Zeynalova) on termination
of the right to use the disputed apartment by paying the compensation, and
eviction from the apartment) which rejected the suit due to absence of the institute
of compensation in the Article 123 of the Housing Code, does not comply with the
requirements of Articles 13, 29, 71, 147 and 149 of the Constitution, Para 8 of
the Transitional Provisions of the Constitution, as well as Articles 1.2, 11.1,
11.5 and 228.2 of the Civil Code.
The Court of Appeal as a competent court should have checked whether the
first instance court observed material and procedural norms on the basis of
evidences in the said case and should have eliminated the shortcomings made by
the first instance court. However, the JBCC of the Court of Appeal violated the
requirements of Articles 372.1, 372.7, 384 and 385.1 of the Civil Procedure
Code and made a decision on 09.11.2005 on upholding the decision of the first
instance court.
Having ignored the requirements of Articles 416, 417.0.03 (in force at
the moment of examination of the case) and 418.1 of the Civil Procedure Code, the
Supreme Court’s JBCC adopted a decision on 31.03.2006 by which it upheld the
decision of the Court of Appeal which did not comply with the Constitution and
provisions of the civil legislation. Having done so, the Supreme Court failed
to carry out its duties.
Subsequently, there was no fair court examination in the civil case and
R.Agalarov’s right to court guaranteed by Article 60.1 of the Constitution was
violated, and applicant’s seeking restoration of rights in the court as a
proprietor resulting from illegal acts against him was not effective.
The
Plenum of Constitutional Court holds that the decision of the Supreme Court’s JBCC
of 31.03.2006 (on the civil case launched by R.Agalarov against E.Agalarova
(Zeynalova) on termination of the right to use the disputed apartment by paying
the compensation and eviction from the apartment) should be declared void as it
contradicts to Article 60.1 of the Constitution and Articles 416, 417.0.03 and
418.1 of the Civil Procedure Code, and this case shall be reconsidered in
accordance with the present decision, and via the procedure and terms
determined by the civil procedure legislation of the Republic of Azerbaijan.
Being guided by parts V, IX and X of Article 130 of the Constitution of
the
2. The decision shall
come into force from the date of its publication.
3. The decision shall
be published in ‘
4. The decision is
final, and may not be cancelled, changed or officially interpreted by any body
or official.
Presided by
Chairman of
Translated by
Head of International
Relations Department
of
DISSENTING OPINION
of Bahman Qaribov,
Judge of the Constitutional Court of the
On the decision of the Plenum
of the Constitutional Court of the Republic of Azerbaijan of 26 September 2007
concerning conformity of the decision of the Judicial Board on Civil Cases of
the Supreme Court of the Republic of Azerbaijan dated 31 March 2006 on the
complaint of R. Agalarov with the Constitution and laws of the
I support the conclusive part of the abovementioned decision of the Plenum of the Constitutional Court
of the
According to the legal positions expressed in the decision of the Plenum of the Constitutional
Court, since Article 123 of the Housing Code of the Republic of Azerbaijan
(hereinafter – the Housing Code) does not provide the possibility for
termination of the right to use the residential area by family members of the
proprietor and other persons by paying a compensation, in order to solve the
disputes, Article 228.2 of the Civil Code (“in case of absence of the
agreement on termination of the right to use the component of a residential
building, this right may be terminated by court on the basis of proprietor’s
suit by way of paying the compensation in accordance with the market value”) may
be applied by the courts in accordance with Articles 7 or 11.1 of the Civil
Code.
For the reasons enumerated below, I disagree with the legal position
providing for the possibility of application of the aforementioned provision of
Article 228.2 of the Civil Code in accordance with Article 11.1 of the same
Code when solving the dispute stemming from Article 123 of the Housing Code.
According to Article 11.1 of the Civil Code, if civil law relations are
not directly regulated by the civil legislation or agreement between the
parties and there is no business custom to be applied to them, those relations,
if it does not contradict to their substance, are subjected to application of the
civil law norms regulating similar relations (analogy of the law).
Analysis of the content of both Articles reveals that application of
analogy of law is only possible in case of non-regulation by the civil
legislation or agreement between the parties and when there is no possibility
to apply business custom.
It should also be emphasized that these relations enable application of
analogy of law if they are not regulated directly.
It transpires from the content of the said Article that the relation to
be regulated is connected to civil law subject; there is no norm in the
legislation directly regulating it, and it is not possible to broadly interpret
any norm of it for regulation of such a relation, but there are other legal
norms regulating similar relations.
In this case, one should apply the civil legislation norm regulating
similar relations in such a way that it does not go into conflict with the
substance of the civil relations which are necessary to regulate.
Indeed, the first impression is that the rule of this Article can be
applied to civil relations that are present in the civil law field but are not
regulated by the civil law norms and agreement of the parties and irrespective
of the date of their emergence.
The decision of the Plenum of
the Constitutional Court supported this position and stated that “in case of
collision between new and previous laws, one need to be guided by Article 149.7
of the Constitution that provides for the possibility of retroactivity of the
normative legal acts that improve the legal situation of natural and legal
persons, eliminate or mitigate their legal responsibility”.
It should also be taken into account that according to Article 7 of the
Civil Code, except the cases provided for by Article 149.7 of the Constitution,
civil law provisions can not be retroactive and they are to be applied to
relations arising after their entry into force. If application of provisions of
the civil legislation damages subjects of civil law or worsens the situation of
these subjects, the civil legislation may not be retroactive.
The decision further elaborates on content of Article 11.1 of the Civil
Code and states that “analysis of the content of both Articles reveals that,
besides of exceptional cases, if Article 7 of the Civil Code reflects
non-possibility of application of the law to relations established after its
adoption, Article 11.1 of the said Code in the enumerated concrete cases
enables the application of the civil law norms regulating similar relations.
Such an approach may, in accordance with Articles 1.2 and 11.1 of the Civil
Code, concern such norms of the existent civil legislation which are designed
for relations that were not previously regulated by law; which create better conditions
for participants of civil circulation and ensure better protection for the rights
and lawful interests of such persons”.
Also the decision mentioned that “by taking into account Article 11.1 of
the Civil Code, the possibility of application of the norm provided for by Article
228.2 of the Civil Code (about termination of the right to use the residential
area by paying the compensation) to relations that were established prior to it,
but are of continuous nature supplements it if this does not contradict to the
decision of the Constitutional Court of 27.07.2001”.
I believe that such a legal construction that is based on the decision
of the Constitutional Court of 27.07.2001 goes beyond the scope of influence of
norms of the Civil Code regulating “general rules”, as well as this and other
decisions of the Constitutional Court.
Hence, according to Article 2.1 of the Civil Code, the civil legislation
of the
From this point, the content of the expressions “by civil legislation”
and “civil legislation” used in Article 11.1 of the Civil Code cover not only
the Civil Code, but also the Housing Code.
Such a situation does not exclude the case when norms on regulation of
similar relations are present both in the Civil Code and the Housing Code.
Under such circumstances, since there is no limitation in Article 11.1 of the
Civil Code, it is possible to apply, as analogy of law, the norms of the
Housing Code regulating similar relations.
Such an approach also stems from the failure of the said Article to
determine which of normative legal acts to use as analogy of law if application
of norms regulating similar relations to non-regulated civil relations is
provided for both in the normative act that does not regulate it and in another
normative legal act.
Moreover, in this Article application of analogy of law does not depend
on the moment when non-regulated civil relations were established.
It should also be mentioned that in this Article the only criteria
enabling the evaluation of the possibility of application of legislative norms
regulating similar relations as analogy of law is the provision “if it does not
contradict to their substance”. Since there is such a provision, one can
conclude that it is possible to apply norms of the civil legislation regulating
similar relations as analogy of law irrespective of when they entered into
force or when the said civil relations were established.
However, the joint analysis of Articles 7 and 11.1 of the Civil Code
shows that from the point of the rules of Article 7 of the civil legislation, the
norms adopted afterwards can not be applied as analogy of law to regulation of the
civil relations established prior to its adoption.
According to Article 7.1 of the Civil Code, except the cases provided
for by Article 149.7 of the Constitution, civil law provisions may not be
retroactive and they are to be applied to relations arising after their entry
into force. The retroactivity of the civil legislation is also possible if
directly mentioned in the law (Article 7.2 of the Civil Code). The provisions
of the said Article reveal that provisions of the civil legislation including
the Civil Code can be applied to relations that are established after its entry
into force.
Application of the civil legislation provisions to the relations
established prior to entry of such legislation into force is possible only when
allowed by the Constitution or directly by law.
Since Article 7.1 of the Civil
Code determines the application of provisions of civil legislation that entered
into force about “relations” in general and not “legal relations”, its content,
as well as non-regulated relations are also covered by influence of this Article.
With regard to the aforementioned, I believe that the possibility of
application of the provision of Article 228.2 of the Civil Code about
termination of the right to use of the residential area by payment of
compensation on the basis of Article 11.1 of the Civil Code about relations
established in accordance with Article 123 of the Housing Code is impossible
from the point of Article 7 of the Civil Code.
Such an approach stems from the requirements of parts I and II of Article
147 of the Constitution as well as Article 7 of the Civil Code.
It is not coincidence that the
It should also be mentioned that the decision of the Plenum of the
Constitutional Court actually interpreted Article 11.1 of the Civil Code
broadly and have added an evaluation criteria covered by Article 7 of the said
Code for creating favourable regime for participants of civil circulation, and
better protection of the rights and interests of natural and legal persons. This,
on the one hand, leads to identification of substance of Articles 7 and 11 by
elimination of differences in their functions and, on the other hand, creates a
chance for surmounting the barrier envisaged in Article 7 with help of Article
11.1.
Being guided by the abovementioned, I support the position that the provision
of Article 228.2 of the Civil Code about the possibility of termination of the
right to use the residential area by payment of compensation in relation to the
disputes stemming from the previously established relations in accordance with Article
123 of the Housing Code, may be applied only in the order provided for by Article
7 of the Civil Code in accordance with the abovementioned provisions of the
Constitution of the Republic of Azerbaijan and the legal positions of the
Constitutional Court expressed in its decisions mentioned in the present
opinion.
