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
in connection with the
complaint of Eyvaz Khakimov
3 November 2008 Baku city
Plenum of the
Constitutional Court of the Republic of Azerbaijan composed of F.Abdullayev
(Chairman), F.Babayev, B.Garibov (reporter judge), R.Qvaladze, E.Mammadov,I.Nadjafov
and A.Sultanov,
with participation
of the secretary V.Zaynalov,
applicant E.Khakimov
and his representative E.Gadimi
representative of
respondent party: A.Ismaylov, employee of the Staff of Supreme Court of the
in accordance with the
Article 130.5 of the Constitution of the Republic of Azerbaijanexamined in open
judicial session via special constitutional proceedings the case on complaint
of Eyvaz Khakimov concerning verification of conformity of decision of
the Judicial Board on Civil Cases of the Supreme Court of the Republic of
Azerbaijan as of 6 November
2007 to Constitution and laws of the Republic of Azerbaijan.
Having heard the
report of Judge B.Garibov, speech of the applicant and representative of
respondent, having considered materials of the case, Plenum of the
DETERMINED AS FOLLOWS:
As evident from
documents of the civil case, the house located at the address: the
By its decision the
people's court of Nasimi district as of March 30, 1994 satisfied the claim of
E.Khakimov, which established fact of acceptance of the disputed hereditary
house by E.K.Khakimov on March 18, 1983. By the decision of the same court as of
July 8, 1994 it was recognized that Gambarov Ali Medzhidogli and Gambar Meshadi
Medzhidogli is the same person. By the another decision of the people’s court
of Nasimi district as of August 8, 1994 satisfied E.Khakimov's claim, and established
the fact that Minakhanum Meshadi Medzhidgizi is the mother of E.Khakimov,
Sakinakhanum Meshadi Medzhidgizi – his native aunt, and Gambarov Ali Medzhidogli
– his native uncle. On this court session E.Khakimov declared that
establishment of this fact is necessary for registration of the contract of
donation with successors of his relatives which already died. Y. Gambarov and
G. Imamverdiyev confirmed the relationship facts. All three judicial acts
attached to materials of a civil case entered into force.
On the basis of the
bill of sale as of May 27, 1994 1/6 part (share) of the disputed house was in a
private property of the applicant E.Khakimov.
2/6 parts of this
house, according to the bill of sale No. 30/9249 as of August 5, 1994 was in a
private property of Y.Gambarov, and other 2/6 parts on the basis of the bill of
sale No. 30/9248 of the same date – in a private property of G.Imamverdiyev.
According to the
contracts certified on October 19, 1994 of the state notary office (hereinafter
referred to as the SNO) No. 13 and registered in the register book No.
3-M/7-2158 and 3-M/7-2157, Y.Gambarov and G.Imamverdiyev presented to E.Khakimov
2/6 shares in the disputed house belonging to each of them separately on the
basis of the right of a private property.
On the basis of the
bill of sale as of November 16, 1994, including the presented shares, 5/6 parts
of the disputed house was in E.Khakimov's property.
In the duplicate of
the bill of sale issued on December 22, 2004 to Y.Gambarov and dated August 5,
1994 it is specified that the disputed house (in which 2/6 shares are in a
private property of Y.Gambarov, 3/6 shares in a private property of E.Khakimov,
and 1/6 share in a private property of B. Gambarova) had passed legal
registration.
At the same time,
in connection with the letter of legal advice office No. 4 of the Baku city dated
May 14, 2004, and in the response letter as of May 15, 2004 which are in
materials of the territorial administration of service of the state registry of
real estate of Baku city (hereinafter referred to as the service of the registry)
it is noted that on the basis of the contract signed on October 19, 1994
G.Imamverdiyev presented to E.Khakimov the 1/3 part in the disputed house (the
law of succession with respect to which was recognized), and on 1/3 part of
this house the law of succession of Y.Gambarov was recognized.
In the bill of sale
dated August 11, 2005 issued by service of the registry to Z.Dzhabbarova as
B.Gambarov's successor, it is indicated that 1/6 part of the disputed house
belongs to Z.Dzhabbarova, 3/6 parts to E.Khakimov, and 2/6 parts to Y.Gambarov.
Because of
emergence of litigation between owners and their successors Y.Gambarov and Z.Jabbarova
brought in court against E.Khakimov suits for the real division of the house
which is in share property, its division according to shares, definition of
rules of use of plot of land attached to a house and subsidiary site and moving
in to the house; E.Khakimov against Y.Gambarov and service of the registry on
cancellation of unreasonable registration and restoration of the property
rights; Imamverdi Gamidagaogli Imamverdiyev (son of Mr. Imamverdiyeva) against
E.Khakimov, SNO No. 13 and services of registry concerning recognition of the deed
of gift and the bill of sale as invalid, recognition hereditary and property
rights. At the same time Y.Gambarov brought the counterclaim against
E.Khakimov, SNO No. 13 and service of the registry concerning recognition of
the deed of gift as invalid and partial cancellation of the bill of sale.
Nasimi district
court that considered these cases in uniform procedure by the decision of March
5, 2007 rejected the submitted claims and the counterclaim. The court proved
the conclusion that on the basis of the contracts signed on October 19, 1994 in
SNO No. 13 and registered in the registry, G.Imamverdiyev and Y.Gambarov
presented to E.Khakimov the parts of the disputed house belonging to them. In
the bill of sale number 30/15518 of November 16, 1994 it is also specified that
5/6 parts of the disputed house are in a private property of E.Khakimov.
The court of the
first instance established that in an explanation of the representative of
service of the registry and the letter of this body No. 11/12711 dated November
1, 2006 it is noted that the duplicate of the bill of sale was issued to
Y.Gambarov mistakenly, and in this connection the latter was informed about
invalidity of this document, and belonging of 5/6 parts of property to
E.Khakimov. The court also established that deeds of gift were signed according
to the Articles 245 (provisions concerning the deed) and 230 (provisions
concerning a form of the contract of purchase and sale of a house) of the Civil
Code acting till September 1, 2000 (hereinafter referred to as the former Civil
Code); since that moment more than 11 years had passed; it also was not
confirmed that Y.Gambarov and I.Imamverdiyev missed the term of the claim for a
good reason; specifying E.Khakimov's request for use of term of the claim and
being guided by the decision of the Constitutional Court of the Republic of Azerbaijan
as of December 27, 2001 (concerning interpretation of the Article 373 of the
Civil Code of the Republic of Azerbaijan) the court applied to the 3-year term
of limitation period with respect to claim requirements.
The decision of
Judicial Board on Civil Cases of the Court of Appeal of the Republic of Azerbaijan
(hereinafter referred to as the JBCC of the Court of Appeal) as of July 16,
2007 satisfied partially the appeal complaints made by other claimants except
for E.Khakimov. By given decision the deeds of gift were recognized as invalid;
the bill of sale issued on November 16, 1994 to E.Khakimov was cancelled; the service
of the registry was commissioned to issue to E.Khakimov the bill of sale for
1/6 part, to Z.Jabbarova – 1/6 part, to Y.Gambarov - 2/6 parts, and to
I.Imamverdiyev - 2/6 parts of the disputed house; decision was made to entitle Y.Gambarov
and I.Imamverdiyev for moving into the disputed house.
By its decision the
Judicial Board on Civil Cases of the Supreme Court of the Republic of Azerbaijan
(hereinafter referred to as the JBCC of the Supreme Court) as of November 6,
2007 upheld the judgment of appeal instance.
By the letter of
the Chairman of the Supreme Court as of February 7, 2008 the additional appeal
of the applicant in view of lack of the bases was left without consideration at
Plenum.
Having applied to
the Constitutional Court against the decision of JBCC of the Supreme Court as of
November 6, 2007, the applicant E.Khakimov appealed to cancel this decision because
of its contradiction to the Constitution (hereinafter referred to as the
Constitution) and to laws of the Republic of Azerbaijan.
In connection with
the complaint, Plenum of the Constitutional Court notes the following.
During
consideration of a civil case in judicial instances, the issue of the
expiration of terms of the claim at presentation of statements of claim was one
of the main subjects of discussion.
In the previous decisions
the Constitutional Court created the legal positions concerning establishment
and value of institute of term of the claim (decision “On interpretation of the
Article 373 of the Civil Code of the Republic of Azerbaijan” as of December 27,
2001, in connection with complaint of G. Gashimov and others as of June 30,
2005, concerning complaint of S. Aliyeva as of May 31, 2006, in connection with
complaint of R. Javadov and others as of June 29, 2007, according to complaint of
L.I.Binnatova as of May 8, 2008, etc.). Besides, in connection with application
of the norms of the former Civil Code regulating claim terms, Plenum of the
Constitutional Court considers necessary to note the following:
Obligatory
protection of the violated rights is not limited and possible in the limits
that are specifically set by legislation with respect to terms of limitation
period.
By the Article 73
of the former Civil Code the total period (claim term) for protection of rights
of a person, whose rights were violated, is established at a term of three
years, and in claims of legal entities to each other – at term of one year.
According to the Article 76 of this Code, irrespective of the claim expiration,
the requirement concerning protection of the violated right was accepted by
court for consideration.
It was specified in
Article 78.1 of the former Civil Code regulating the start of running of limitation
period and general order of its calculation that the running of limitation period
begins from the date of emergence of a right of action: the right of action
arises from the date when person learned or had to learn about violation of his/her
right.
From contents of
this article it becomes clear that the beginning of a running of limitation period
is connected, on the one hand, with the objective moment of violation of the
subjective right, and on another hand with the subjective moment when
authorized person learned or had to learn about violation of the rights.
Existence of these two different factors and their quite frequent discrepancy
are the important point influencing establishment of the beginning of limitation
period.
The Article 77 of
the former Civil Code directly provided for competence of court in solution of issues
concerning claim terms by, irrespective of will of parties, and the Article 82
established that expiration of this term before bringing of claim gives basis
for refusal with respect to claim. The listed norms and influence of the
correct definition of a reference point of term of claim on legal and
legitimate interests of parties invoke need for establishment by court of this
moment only on basis of serious proofs.
Purpose and function
of indication concerning emergence of claim right from date when person had to
learn about violation of his/her right, serve for increasing of sense of
responsibility connected with protection of subjective rights and legitimate
interests, directed on elimination of indifferent and negligent attitude,
prevention of cases of abuses which can arise at its implementation.
The court of appeal
instance noted that Y.Gambarov and I.Imamverdiyev were not informed on the
transfer of the corresponding parts of the disputed house to E.Khakimov, from
this point of view the term of the claim was not missed (Article 78 of the
former Civil Code), and came to conclusion that Article 73 of the former Civil
Code was applied by court of the first instance incorrectly. The court proved
the position that in reference of service of the registry as of May 15, 2004
there are no records about deed of gift by Y.Gambarov to E.Khakimov, both in
this document, and in given out to the Z.Jabbarov bill of sale it was noted
that 2/6 parts of the disputed house belong to Y.Gambarov.
Considering the
above, Plenum of the Constitutional Court underline that full and comprehensive
study of all circumstances of a civil case at strict observance of requirements
and indications of the procedural legislation represents crucial importance
from the point of view of achievement of an objective truth.
The Article 60 of
the Constitution guarantees legal protection of the rights and freedoms of
everyone. The right for legal protection is among basic rights and freedoms of
the person and citizen and perceived as a guarantee of other rights and
freedoms. This right, without being limited only to the right to appeal to
court, also provides the justice capable effectively to restore within the
limits set by the legislation, the violated rights and freedoms. In the decision
according to complaint of R. Aslanov as of July 26, 2004 the Constitutional
Court, concerning an essence of the guarantee fixed by the Article 60 of the
Constitution specified that the essence of this guarantee also consist in acting
the court considering the case only within the powers established by the law.
According to
requirements of the Civil Procedural Code of the Republic of Azerbaijan (hereinafter
referred to as the CPC) concerning implementation of civil legal proceedings,
the judge is obliged to motivate the decision only with those proofs,
explanations of the parties and documents which were discussed by it on the
basis of the principle of competitiveness of the parties. The court estimates
proofs according to the precepts of law that are subject to application
concerning these proofs after their objective, impartial, comprehensive and
complete examination. The judgment has to be lawful and reasonable. The
decision has to be passed according to the norms of substantive and procedural
law acting at the time of emergence of disputable legal relations acting for
date of consideration and resolution of case. The decision has to be based on
the valid facts of the case and on relationship of the parties. The court
(judge) bases the decision only on those proofs that were investigated in court
session (Articles 9.3, 88 and 217 of the CPC).
However the Board
of Court of Appeal on the given civil case, without having studied completely
and comprehensively the evidence which is produced by the parties to court and
without having cleared some contradictory moments, came to conclusion about a beginning
of running of term of the claim ofrequirements of Y.Gambarov and I.Imamverdiyev
in connection with protection of their violated rights not since 1994, but more
than 11 years later – since 2006.
Thus, the court did
not give any legal assessment to the circumstances presented by the parties
which were reflected in the judgments adopted by people’s court of the Nasimi
district in 1994 and entered into force and which could promote the fair
solution of a civil case. There were established facts of inheritance by
E.Khakimov since March 18, 1983 of the disputed hereditary house according to
these, judicial acts attached to materials of a civil case, existence of its
related communications with initial owners of this house and other
circumstances.
In the decision on case
“Kraska vs. Switzerland” the European Court of Human Rights noted that the effect as of Article 6 para. 1 is, inter
alia, to place the "tribunal" under a duty to conduct a proper
examination of the submissions, arguments and evidence adduced by the parties,
without prejudice to its assessment of whether they are relevant to its
decision (19.04.1993, paragraph 30).
Besides, court of
appeal instance, estimating the references contradicting each other and letters
of service of the registry, did not take the necessary actions directed on
clearing of questions that could affect the moment of a reference point of limitation
period for the parties. Though the court also established in the letter of
service of the registry No. 11/12711 as of November 1, 2006 that the duplicate
of the bill of sale was issued to Y.Gambarov mistakenly in this connection to
the last it was reported about invalidity of this document, it did not clear up
such important point when this government body to Y.Gambarov sent the warning
of an inaccuracy, did not provide participation in court session of the
representative of SNO No. 13 where deeds of gift were signed. The court was
content with a request of this notary office to consider case in the absence of
its representative and to adopt the decision without their participation. And all
this became the reason of that the court of appeal instance came to the legal
conclusion which generated dispute in connection reference point of limitation period
for the parties and is not in conformity with the Articles 73 and 78 of the
former Civil Code.
At the same time
court of appeal instance, providing claim requirements of I.Imamverdiyev as
successor of G.Imamverdiyev, did not study, whether there is at that a right to
make such claim and to challenge powers more than 11 years later of the bargain
which his father signed in competent government body and did not challenge
during lifetime, and possibility of this circumstance from the point of view of
the general requirements and the principles of the civil legislation.
The former Civil
Code caused acquisition of inheritance by its acceptance by successor. Inheritance
was considered accepted by successor when he/she actually entered into management
or possession of hereditary property or when he/she submitted to notary at a
place of opening of inheritance an application for acceptance of inheritance.
The code provided implementation of these actions within six months from the
date of opening of inheritance (Article 552). According to the Article 553 of
the code the term for acceptance of inheritance established by Article 552 of
the present Code can be prolonged by court if it recognizes the reasons of the
admission of term as valid. The inheritance can be accepted after the
expiration of the specified term and without appeal to court on condition of
consent of all other successors who accepted inheritance.
As evident from the
facts of the case established by courts, I. Imamverdiyev since 1986 did not
live in the disputed house. Despite of it, court, without having studied issues
of case’s documents on whether I. Imamverdiyev as the successor, actually or through
a notary office inherited the inheritance belonging to his father, whether
there was a consent of all other successors to inheritance of inheritance by I.
Imamverdiyev, satisfied the claim submitted by him.
Thus, as it is
clear from the foregoing, JBCC of the Court of Appeal, making the decision on the
case as of June 16, 2007, did not fulfill properly the requirement and the
indication of the material and procedural legislation and as a result adopted
the judicial act which is not correspond to the Articles 73 and 78 of the
former Civil Code and Articles 9.3, 77, 88 and 217 of the CPC.
Though, only the
decision adopted according to the relevant norms of a substantive law, at exact
observance of norms of a procedural law, can be considered as the judicial act
corresponding to relevant requirements of the law.
According to the
CPC, the court of cassation instance verifies correctness of application by
court of appeal instance of norms of substantive and procedural law. Wrong
application of norms of substantive and procedural law is the basis for
cancellation of the decision or ruling of court of appeal instance.
Cancellation of acts of Court of Appeal is in power of this court (Articles
416, 417 and 418 GPK).
However, JBCC of
the Supreme Court, having kept in force the judgment of court of appeal
instance adopted with violation of norms of substantive and procedural law
broke the guarantee of legal protection of the rights and freedoms fixed in of
the Article 60.1 of the Constitution.
Thus, Plenum of the
Constitutional Court comes to a conclusion that the decision of JBCC of the
Supreme Court as of November 6, 2007 on a civil case concerning Y.Gambarov and
Z.Jabbarova's claims against E.Khakimov, the claim of the latter against
Y.Gambarov and service of the registry, I.Imamverdiyev against E.Khakimov and SNO
No. 13, the counterclaim of Y.Gambarov against E.Khakimov and others because of
discrepancy with the Article 60.1 of the Constitution of the Republic of Azerbaijan
and with the Articles 416, 417 and 418.1 of the CPC has to be recognized as
null and void. The this civil case has to be reconsidered according to the
present decision, an order and the terms established by the CPC.
Being guided by parts
V, IX and X of Article 130 of the Constitution of the Republic of Azerbaijan, Articles
52, 62, 63, 65-67 and 69 of the Law of the Republic of Azerbaijan “On
Constitutional Court”, the Plenum of the Constitutional Court of the Republic
of Azerbaijan
DECIDED:
1. To Recognize the decision of Judicial Board on Civil Cases of the
Supreme Court of the Republic of Azerbaijan as of November 6, 2007 on civil
case concerning Y.Gambarov and Z.Jabbarova's claims against E.Khakimov, the claim
of the latter against Y.Gambarov and service of the registry, I.Imamverdiyev
against E.Khakimov and SNO No. 13, the counterclaim of Y.Gambarov against
E.Khakimov and others as null and void in connection with its discrepancy with
the Article 60.1 of the Constitution of the Republic of Azerbaijan and with the
Articles 416, 417 and 418.1 of the CPC. To reconsider case according to the
present decision, an order and the terms established by the CPC.
2. The decision shall come into force
from the date of its publication.
3. The decision shall be published in “Azerbaijan”,
“Respublika”, “Xalq Qazeti” and “Bakinskiy Rabochiy” newspapers, and “Bulletin
of the Constitutional Court of the Republic of Azerbaijan”.
4. The decision is final, and may not
be cancelled, changed or officially interpreted by any body or official.
