20.07.2022

Plenum of the Constitutional Court of the Republic of Azerbaijan, chaired by Farhad Abdullayev, held a session via the written procedure of special constitutional proceedings.

At the court session was examined the constitutional case based on the request submitted by the Court of Appeal of Shirvan city on related interpretation of Articles 312.4 of the Civil Code of the Republic of Azerbaijan and 30.1 and 31.1 of the Law of the Republic of Azerbaijan "On Mortgages".

Having heard the report of Judge İ. Najafov, studied and discussed reports of representatives of interested parties – Judge of the Court of Appeal of Shirvan city N.Mirzayev and Heaf of Department of Economic Legislation of the Milli Majlis (Parliament) M.Bazigov, conclusions of specialist – Supreme Court of the Republic of Azerbaijan, the Central Bank of the Republic of Azerbaijan, the Mortgage and Credit Guarantee Fund of the Republic of Azerbaijan, the Notary Chamber of Azerbaijan, opinion of expert – associate Professor, Doctor of Philosophy in Law, Department of Civil Law, Faculty of Law, Baku State University S.Suleymanli, and associate Professor, Doctor of Philosophy in Law of the same department F.Mirzayeva the Plenum of Constitutional Court of the Republic of Azerbaijan adopted decision.

The decision states that in accordance with the principle of the inviolability of property rights, Article 312.4 of the Civil Code of the Republic of Azerbaijan prohibits the agreement that the mortgagee waives the property rights over the object when concluding a mortgage agreement between the parties.

Articles 30.1 and 31.1 of the Law of the Republic of Azerbaijan "On Mortgage" from the point of view of protecting the property interests of the mortgagee under the mortgage contract and preventing the threat to the fulfillment of the main obligation determine the invalidity of the agreement on disposal of the subject of mortgage without the written consent of the mortgagee.

The mortgagor's decision to refuse to give consent for the alienation of the subject of the mortgage must be justified and the reasons for the refusal must be indicated. The mortgagor, in turn, can dispute that decision in court.

The decision comes into force from the date of its publication, is final, and may not be cancelled, changed or officially interpreted by any institution or official.