ON BEHALF OF AZERBAIJAN REPUBLIC
DESICION
OF THE PLENUM OF THE CONSTITUTIONAL COURT
OF AZERBAIJAN REPUBLIC
Review of the complaint by Bakı Telefon Rabitesi Production Association concerning conformity of the decision of the Plenum of the Supreme Court of 3 March 2005 to the Constitution and laws of the Republic of Azerbaijan
29 June 2005 Baku city
The Plenum of the Constitutional Court of the Republic of Azerbaijan in attendance of:
Judges F.Abdullayev (President Judge), F.Babayev, B. Qaribov, R.Qvaladze (Reporting Judge), E.Mammadov, I.Najafov, S.Salmanova and A.Sultanov and Court Secretary I.Ismayilov,
in presence of the complainant representatives Kh.Kishiyev, Deputy General Manager and F.Mehdiyev, Corporate Lawyer of Bakı Telefon Rabitesi Production Association and the respondent representatives Judge A.Kalbaliyev of the Supreme Court of the Republic of Azerbaijan and Z.Qambarov of the Administration of the Supreme Court
based on a complaint lodged by Bakı Telefon Rabitesi Production Association,
has examined in the open session under special constitutional procedure in accordance with Article 130 Section V of the Constitution of the Republic of Azerbaijan the constitutional case of conformity of the decision of the Plenum of the Supreme Court of the Republic of Azerbaijan of 3 March 2005 to the Constitution and laws of the Republic of Azerbaijan.
Having heard a report of Judge Qvaladze and statements from representatives F.Mehdiyev and Judge Kalbaliyev, studied materials and deliberated the case, the Plenum of the Constitutional Court of the Republic of Azerbaijan
DETERMINED AS FOLLOWS:
The National Bank of the Republic of Azerbaijan sued Bakı Telefon Rabitesi Production Association (henceforth “BTRIB”) and Pochtbank Joint-Stock Investment Bank (henceforth “Pochtbank”) for non-payment of the principal and the accumulated interest on a loan extended to the respondents.
The case was tried for several times at various courts, which made mutually exclusive rulings.
Eventually, on 20 February 2004 the Economic Court of the Republic of Azerbaijan ruled to:
sustain a claim by the National Bank;
order BTRIB to pay the principal in the amount of AZM 9,500,000,000 and the interest in the amount of AZM 897,945,205 to the benefit of the National Bank;
dismiss a claim against Pochtbank.
On 22 April 2004 the Collegium of Economic Disputes of the Supreme Court of the Republic of Azerbaijan ruled to uphold the above judgement.
Because in view of the Plenum of the Constitutional Court of the Republic of Azerbaijan the decision of the cassation court had contravened provisions of the Constitution and the Code of Civil Procedure of the Republic of Azerbaijan, on 10 November 2004 the Plenum of the Constitutional Court ruled to void the above decision and order the case tried again in the manner and at times prescribed by the civil procedure of the Republic of Azerbaijan. It should especially noted that the said decision of the Plenum of the Constitutional Court specifically underlined law violations allowed during the trial at the appellate court.
Nevertheless, following the said decision, on 3 March 2005 the Plenum of the Supreme Court ruled to uphold the judgement of the Economic Court of the Republic of Azerbaijan of 20 February 2004. The Plenum of the Supreme Court substantiated its decision by stating that the appellate court had made a reasoned conclusion about Pochtbank’s inability to pay its debts and therefore impossibility of it satisfying the claim of the National Bank. In view of the Plenum of the Supreme Court, the Plenum of the Constitutional Court had acted in contravention of the Constitution of the Republic of Azerbaijan and the Law of the Republic of Azerbaijan on the Constitutional Court by ruling on the substance of the case adjudicated by the appellate court. Additionally, based on information provided to the Supreme Court by the Prosecutor General Office, the Plenum of the Supreme Court came to the conclusion that the ruling of the appellate court about Pochtbank’s inability to pay was substantiated.
In the complaint lodged with the Constitutional Court, BTRIB claims that the decision of the Plenum of the Supreme Court of the Republic of Azerbaijan of 3 March 2005 is unlawful and unsubstantiated and requests review of its conformity to the Constitution and laws of the Republic of Azerbaijan.
The complaint is substantiated by allegation that the Plenum of the Supreme Court violated provisions of Article 130 Section IX of the Constitution of the Republic of Azerbaijan and Articles 63.1, 66.1 and .2 of the Law of the Republic of Azerbaijan on the Constitutional Court in refusing to accept mandatory effect of and refusing to unconditionally enforce a decision of the Plenum of the Constitutional Court. The complaint also alleges that the Plenum of the Supreme Court breached Article 424.1 of the Code of Civil Procedure (henceforth “CCP”) by taking upon itself functions of evaluating evidence belonging to the first-instance court.
In relation to the complaint by BTRIB, the Plenum of the Constitutional Court notes that, first and foremost, decisions of the Constitutional Court have mandatory effect throughout the Republic of Azerbaijan in accordance with Article 130 Section IX of the Constitution of the Republic of Azerbaijan. The same provision is contained in Article 66.1 of the Law of the Republic of Azerbaijan on the Constitutional Court. Articles 66.2 and 63.4 of the same Law stipulate that decisions of the Constitutional Court, once effective, shall be unconditionally enforced and that they are final and can not be annulled, amended or officially interpreted by whichever person or entity.
Not only did the Plenum of the Supreme Court fail to enforce the decision of the Plenum of the Constitutional Court but by commenting on it and disputing its effect the Plenum of the Supreme Court grossly violated the express provisions of the Constitution of the Republic of Azerbaijan and the Law on the Constitutional Court.
Furthermore, the Plenum of the Supreme Court openly violated civil procedure requirements.
CCP Chapter 44-1 provides rules for examination of new circumstances related to violation of rights and freedoms. The decision of the Plenum of the Constitutional Court of the Republic of Azerbaijan of 25 January 2005 “Review of conformity of Part III Paragraph 8 and Part IV Paragraph 7 of the Law of the Republic of Azerbaijan No. 688-IIQD of 11 June 2004 on Amendments to Certain Legislative Acts of the Republic of Azerbaijan” stated: “During procedure concerning new circumstances related to violation of rights and freedoms, review of the matters of law by the Plenum of the Supreme Court should not pre-empt competencies of the Constitutional Court nor misrepresent (re-examine, extend, limit or in any way re-interpret) its decisions and endanger effectiveness of the constitutional judicial procedure but be consistent with the constitutionally-defined role of the cassation court. Hereby, the Supreme Court and other courts of the land shall pass decisions only within bounds defined by the Constitutional Court for a respective case. These bounds comprise legal issues and rights and freedoms deemed violated as defined in a pertinent decision of the Plenum of the Constitutional Court.”
The same view is confirmed by changes made in procedural law by the said Law of the Republic of Azerbaijan of 11 June 2004 on Amendments to Certain Legislative Acts and other current provisions in CCP. Thus, in accordance with CCP Article 431-4.2, the Plenum of the Supreme Court makes a pertinent decision in line with a decision of the Constitutional Court on rights and freedoms. Hence, it is clear that a decision of the Plenum of the Supreme Court shall correspond to a decision of the Plenum of the Constitutional Court which has initiated a procedure related to violation of rights and freedoms.
By adopting a decision in a civil dispute that conflicts with the decision of the Plenum of the Constitutional Court of 19 November 2004, the Plenum of the Supreme Court breached CCP Article 431-4.2 and disregarded instructions contained in the above decision of the Plenum of the Constitutional Court of 25 January 2005.
Regarding suppositions of the Plenum of the Supreme Court about examination of factual evidence by the Constitutional Court, the Plenum of the Constitutional Court notes that the decision of the Plenum of the Constitutional Court of 19 November 2004 referred to factual evidence determined by common courts, and such reference can never be interpreted as “examination of factual evidence” as stated in the decision of the Plenum of the Supreme Court.
The Plenum of the Constitutional Court in the decision referred to above stated that the appellate court examining the substance of the case came to a wrong conclusion because it failed to apply applicable legal norms to factual evidence and failed to correctly interpret legal norms it had applied. The cassation court failed to examine proper application of legal norms by the appellate court and repeated errors thereof by adopting a decision infringing on requirements of CCP Articles 416, 417.0.3 and 418.1. Precisely on these grounds the decision of the Collegium of Economic Disputes of the Supreme Court of 22 April 2004 was ruled to be in contravention of the Constitution and civil procedure law.
The Plenum of the Supreme Court in reference to CCP Article 416 came to a correct conclusion that the cassation court should only examine application of substantive and procedural legal norms by the appellate court. It should be noted that the Plenum of the Supreme Court itself can exclusively rule on the matters of law (CCP Article 424.1).
The Plenum of the Constitutional Court, in a number of decisions on complaints lodged with it, emphasised that the court examining the case in the cassation procedure is competent neither to determine circumstances not determined or rejected by lower-level courts, nor consider them proven, nor decide on validity or invalidity of evidence, nor accept one evidence as superior to the other. This means that the cassation court is not competent to decide the case based on independently collected evidence or new evidence additionally collected by itself. All these requirements equally relate to the additional the cassation procedure.
In spite of the above, the Plenum of the Supreme Court introduced a note from the Prosecutor General Office which was not a discussion item under the appellate procedure and accepted that note as evidence, thus violating requirements of CCP Article 424.1.
The decision passed by the Plenum of the Supreme Court in contravention of the Constitution and the laws led to violation of BTRIB’s right to judicial protection of rights and freedoms (right to fair trial) as established in Article 60 of the Constitution of the Republic of Azerbaijan.
The Plenum of the Supreme Court in its decision equalled current incapacity of Pochtbank to repay its debt from the point of interests of the National Bank with repudiation of its liability thereto. In connection with this, the Plenum of the Constitutional Court notes that assessment of whatever circumstances of a case shall be done not from the point of interests of any party bit based on requirements of law. The scope of these requirements was determined in the decision of the Plenum of the Constitutional Court of 19 November 2004.
In consideration of the foregoing, the Plenum of the Constitutional Court has come to the conclusion that because the decision of the Plenum of the Supreme Court of the Republic of Azerbaijan of 3 March 2005 contravenes Article 60 and Article 130 Section IX of the Constitution of the Republic of Azerbaijan, Articles 63.4, 66.1 and .2 of the Law of the Republic of Azerbaijan on the Constitutional Court and CCP Articles 424.1 and 431.1-4.2, the said decision shall be deemed void. Therefore, the case shall be tried again in the manner and at times prescribed by the civil procedure of the Republic of Azerbaijan.
Guided by Article 130 Sections V, IX and X of the Constitution of the Republic of Azerbaijan and Articles 52, 62, 63, 65, 66, 67 and 69 of the Law of the Republic of Azerbaijan on the Constitutional Court, the Plenum of the Constitutional Court
DECIDED:
1. As the decision of the Plenum of the Supreme Court of the Republic of Azerbaijan of 3 March 2005 in the civil action against Bakı Telefon Rabitesi Production Association and Pochtbank Joint-Stock Investment Bank for non-payment of the principal and the accumulated interest contravenes Article 60 and Article 130 Section IX of the Constitution of the Republic of Azerbaijan, Articles 63.4, 66.1 and .2 of the Law of the Republic of Azerbaijan on the Constitutional Court and CCP Articles 424.1 and 431.1-4.2, the said decision shall be deemed void. In accordance with the present Decision and the decision of the Plenum of the Constitutional Court of The Plenum of the Constitutional Court of 19 November 2004, the case shall be tried again in the manner and at times prescribed by the civil procedure of the Republic of Azerbaijan.
2. The Decision shall become effective from the day it is announced.
3. The Decision shall be published in the newspapers Azerbaycan, Respublika, Xalq Qazeti and Bakinskiy Rabochiy and in the Bulletin of the Constitutional Court of the Republic of Azerbaijan.
4. The Decision is final and can not be annulled, amended or officially interpreted by whichever person or entity.
Chairman Farhad Abdullayev
